United States District Court, D. New Jersey
JORGE VALDES, on behalf of herself and all others similarly situated, Plaintiffs,
CENTURY 21 REAL ESTATE, LLC, Defendant.
WILLIAM J. MARTIN, U.S.D.J.
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.
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.
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.
STANDARD OF REVIEW
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
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."
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).
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.
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,
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 ...