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Valdes v. Century 21 Real Estate, LLC

United States District Court, D. New Jersey

October 21, 2019

JORGE VALDES, on behalf of herself and all others similarly situated, Plaintiffs,
v.
CENTURY 21 REAL ESTATE, LLC, Defendant.

          OPINION

          WILLIAM J. MARTIN, U.S.D.J.

         Plaintiff Jorge Valdes brings this putative class action against Defendant Century 21 Real Estate, LLC ("Century 21") for violating the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227 etseq. Now before the Court is Century 2l's motion to dismiss Plaintiffs Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion is DENIED.

         I. BACKGROUND

         Plaintiff Jorge Valdes is a California resident. Am. Compl. ¶ 2, ECF No. 11. Defendant Century 21 is a New Jersey national real estate franchise with over 8, 000 franchised locations. Id. at ¶¶ 1, 5. Century 2l's realtors are affiliated with franchised locations. Id. at ¶ 2. Valdes alleges that Century 21 realtors market realty services on behalf of and at the direction and control of Century 21. Id. Valdes alleges that Century 21 controls realtors' marketing by means of its training programs through which Century 21 directs realtors to (1) buy leads associated with real estate listings that have expired or otherwise been removed from multiple listing services, and (2) cold call those leads using an autodialer without consent. Id. at ¶¶ 2, 8-22. Specifically, Valdes alleges that Century 21 uses the Century 21 Workbook, Century 21 University, a preferred vendor program, Century 21 coaches, and annual seminar retreats to institute its marketing plan. Id.

         On February 8, 2010, Plaintiff Valdes registered his cellular phone number on the do not call list. Id. at ¶ 23. Valdes alleges that between May 17, 2018 and October 29, 2019, he received twelve unsolicited, autodialed phone calls from Century 21 realtors soliciting Valdes to list his property with them. Id. at ¶¶ 24-33. Plaintiff filed a three-count class action complaint for violation of the TCPA and the TCPA's implementing regulation, 47 C.F.R. § 64.1200. Id. at ¶ 40-57. In each count, Valdes alleges that Century 21 is "vicariously liable for its realtors' calls because it directed, appeared to direct, and/or ratified the realtors' actions." Id. at ¶¶ 43, 49, 56. Now before the Court is Century 21's motion to dismiss pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). ECF No. 14.

         II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint if the plaintiff fails to state a claim upon which relief can be granted. The movant bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). "[A] 11 allegations in the complaint must be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). "But [courts] disregard rote recitals of the elements of a cause of action, legal conclusions, and mere conclusory statements." James, 700 F.3d at 679 (citations omitted). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter... to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

         III. DISCUSSION

         To assert a claim under the TCPA's autodialer provision, 47 U.S.C. § 227(b)(1)(A)(iii), a plaintiff must show that the defendant: (1) called her cell phone; (2) using an automatic telephone dialing system ("ATDS"); (3) without her prior express consent. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 373 (2012) (citing 47 U.S.C. § 227(b)(1)(A)). Section 227(c) provides that any "person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may" may bring a private action based on a violation of said regulations, which were promulgated to protect telephone subscribers' privacy rights to avoid receiving telephone solicitations to which they object. 47 U.S.C. § 227(c). Section 64.1200(c) of the TCPA's implementing regulations, provides that "[n]o person or entity shall initiate any telephone solicitation" to "[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the federal government." 47 C.F.R. § 64.1200(c).

         Century 21 argues that Valdes fails to state a claim under 47 U.S.C. § 227(B)(1)(A)(iii) because he fails to allege that any of the twelve calls he received were made using an automatic telephone dialing system. Century 21 argues that Valdes fails to state a claim under 47 C.F.R. § 64.1200(d) because: (1) Valdes does not allege that he received calls on his residential telephone line; (2) Valdes pleads with insufficient factual detail that he notified callers that he was on the do-not-call list; and (3) Valdes does not allege any facts suggesting that subsequent calls he received after requesting to be placed on the do-not-call list were from the same franchisee or business entity as those calls he received prior to that request. Valdes appears to assert only that Century 21 is vicariously liable for violating the TCPA, not that it is directly liable. See Am. Compl. ¶¶ 43, 49, 56; Def s Reply, ECF No. 16, at 2 n. 1.

         A. Autodialer Claim

         To state a claim under the TCPA's autodialer provision, 47 U.S.C. § 227(b)(1)(A), a plaintiff must plausibly allege, among other things, that he was called on his cellular telephone number using an autodialer. At this stage of the proceedings, a TCPA plaintiff sufficiently alleges that calls were made using an autodialer by identifying "circumstances surrounding" the calls that "create a plausible inference of autodialing," including: their "commercial" content; that multiple calls were made to the same recipient; and that they were made without the recipient's consent. See Keim v. ADF Midatlantic, LLC, No. 12-80577-CIV, 2015 U.S. Dist. LEXIS 159070, at *12 (S.D. Fla. Nov. 9, 2015); Scott v. 360 Mortg. Grp., LLC, No. 17-cv-61055, 2017 U.S. Dist. LEXIS 207513, at *17 (S.D. Fla. Dec. 14, 2017); Smith v. Royal Bahamas Cruise Line, No. 14-cv-03462, 2016 U.S. Dist. LEXIS 6204, at *10-12 (N.D. 111. Jan. 20, 2016).

         Here, Plaintiff alleges with regard to the calls he received marketing Century 21 realty services that they were commercial, that he received multiple similar calls, they were made without Plaintiffs consent notwithstanding his having previously demanded that realtors marketing Century 21 realty services stop calling him, and that other consumers received similar calls under similar circumstances. Am. Compl. at ¶¶ 23-31. Generally, these factors have been held to be insufficient indicia indicating an autodialer was used. See Montinola v. Synchrony Bank, CV. 17-8963, 2018 WL 4110940, at *3 (D.N.J. Aug. 28, 2018) ("For example, Plaintiff does not provide any factual allegation as to whether there was a pause at the beginning of the call, whether the voice on the other end sounded robotic, or whether the calls all came from the same number."). Plaintiff also alleges that two of the realtors that called him stated that they obtained Plaintiffs telephone number from RedX, which is a company that sells lists of leads that are configured to be loaded into a number of different autodialers that have the capacity to store and automatically dial all of the numbers from the list ...


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