CHARLENE EDWARDS HONEYWELL, District Judge.
This cause comes before the Court on Defendant Santander Consumer USA, Inc.'s ("Defendant") Motion to Dismiss or in the alternative, Motion for a More Definite Statement ("Motion to Dismiss") (Doc. 9). Plaintiff Emmanuel Augustin ("Plaintiff") filed a Response in opposition ("Response") (Doc. 10). The Motion to Dismiss is ripe for review. Upon due consideration, the Court will grant Defendant's Motion to Dismiss.
On August 10, 2011, Plaintiff filed a Complaint seeking statutory damages for Defendant's alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ("TCPA") (Doc. 1). Specifically, Plaintiff claims that Defendant used an automatic telephone dialing system to call Plaintiffs cellular telephone more than one hundred (100) times over a three-year period, "seeking to collect an alleged debt belonging to another individual." (Doc. 1, ¶¶ 1, 13). Plaintiff maintains that the alleged debt is not his, but may belong to his girlfriend who had prior business with the Defendant or another creditor who sold its interest to the Defendant. Id., at ¶ 13 n. 1. The Complaint does not provide Plaintiffs telephone number, the number from which he received the allegedly unlawful calls, or the name or number of his girlfriend, the possible intended recipient of Defendant's calls (Doc. 9, p. 8). The instant Motion to Dismiss follows.
To survive a motion to dismiss, a pleading must include a "`short and plain statement showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of a cause of action are not sufficient. Id. (citing Bell Atlantic Corp., et al. v. Twombly, et al., 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Mere naked assertions, too, are not sufficient. Id. A complaint must contain sufficient factual matter, which, if accepted as true, would "state a claim to relief that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "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. (citation omitted). The court, however, is not bound to accept as true a legal conclusion stated as a "factual allegation" in the complaint. Id. at 1950. Therefore, "only a claim that states a plausible claim for relief survives a motion to dismiss." Id.
Upon consideration of a Motion to Dismiss based upon Federal Rule of Civil Procedure 12(b)(6), a district court must "limit[] its consideration to the pleadings and exhibits attached thereto". Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.2000); Lewis v. Asplundh Tree Expert Co., 305 Fed.Appx. 623 (11th Cir. 2008). If the parties present evidence out-side of the pleadings, and the district court considers that evidence, then the motion to dismiss is converted into a motion for summary judgment. See Fed.R.Civ.P. 12(d); Finn v. Gunter, 722 F.2d 711, 713 (11th Cir.1984).
The TCPA prohibits unsolicited phone calls that utilize prerecorded messages. 47 U.S.C. § 227(b)(1)(A)(iii)
Defendant argues that Plaintiff has failed to adequately state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and in the alternative, moves the Court for a more definite statement pursuant to 12(e). Doc. 9, p. 1. The Complaint does not provide the number from which Plaintiff received the allegedly unlawful calls, any of Plaintiff's several cell phone numbers,
In Response, Plaintiff maintains that "the requested information is protected, personal consumer information and should not be disclosed in a lawsuit or made available to the general public; moreover, the requested information is readily ascertainable through the discovery process." Doc. 10, p. 2. The sole case Plaintiff cites in support of arguing that his allegations sufficiently state a claim, Griffith v. Consumer Portfolio Serv., Inc., 838 F.Supp.2d 723 (N.D.Ill.2011), does not address the sufficiency of a pleading under the TCPA.
The Court has reviewed TCPA cases holding that notice pleading does not require plaintiffs to allege details about the time and context of every accused communication. See Buslepp v. Improv Miami, Inc., 2012 WL 1560408, *1
Here, Plaintiff alleges that Defendant called his cell phone over one hundred times over a period of three years, using an automated telephone system, without his consent. Doc. 1, ¶¶ 21, 24, 25. Plaintiff presumes the purpose of these calls was to collect "debt quite possibly belong[ing] to his girlfriend who has had previous business dealings with either Defendant" or another creditor, but does not provide the dates of the calls, his phone number, his girlfriend's name or phone number, or the number from which he received the allegedly unlawful calls. Id., ¶ 13, n. 1. The Court agrees that Defendant cannot check the files of the intended recipient of the calls, Plaintiffs girlfriend, without her name or either of their cell phone numbers, or the numbers from which the calls were allegedly placed. Doc. 9, p. 6. Although Plaintiff has recited the elements of a TCPA claim, he has not "give[n] the defendant fair notice of what the .... claim is and the ground upon which it rests[.]" Twombly, 550 U.S. at 545, 127 S.Ct. 1955. Because the Complaint lacks sufficient factual allegations "to draw the reasonable inference that the defendant is liable for the misconduct alleged," it must be dismissed. Iqbal, 129 S.Ct. at 1948-49.
Although Plaintiff's Complaint is insufficient to sustain Defendant's 12(b)(6) challenge, the Court acknowledges Plaintiff's concern with providing personal information to the general public.
Upon due consideration, Plaintiff's Complaint is dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Defendant's Motion, in the alternative, for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e) is granted to the extent that Plaintiff is given leave to amend his complaint consistent with this order.
Accordingly, it is hereby