United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
PAGE HOOD CHIEF JUDGE, UNITED STATES DISTRICT COUR.
filed a Motion to Dismiss Amended Complaint on July 31, 2017,
Dkt. No. 16, and it has been fully briefed. The Court held a
hearing on the Motion to Dismiss on October 11, 2017. For the
reasons that follow, the Court grants Defendant's Motion
case stems from Defendant alleging calling Plaintiff more
than 1, 347 times between March 30, 2011 and December 15,
2015 in an effort to collect a debt. Dkt. No. 12, Paragraphs
22, 27, 34. Plaintiff alleges that she revoked any consent to
be called, as set forth in more detail below, even beyond
December 15, 2015. Plaintiff alleges that the calls caused
significant emotional harm and distress.
five-count Complaint alleges Defendant's conduct: (1)
violated the Telephone Consumer Protection Act, 47 U.S.C.
§ 227 et. seq. (“TCPA”) (Counts I and II);
(2) was negligent (Count III); and (3) violated the Michigan
Occupational Code, Mich, Comp. Laws § 339.901 et seq.
(“MOC”) (“Counts IV and V).
APPLICABLE LAW & ANALYSIS
12(b)(6) motion to dismiss tests the legal sufficiency of the
plaintiff's complaint. Accepting all factual allegations
as true, the court will review the complaint in the light
most favorable to the plaintiff. Eidson v. Tennessee
Dep't of Children's Servs., 510 F.3d 631, 634
(6th Cir. 2007). As a general rule, to survive a motion to
dismiss, the complaint must state sufficient “facts to
state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The complaint must demonstrate more than a sheer
possibility that the defendant's conduct was unlawful.
Id. at 556. Claims comprised of “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555.
Rather, “[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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
order to state a TCPA claim for calls made to a cellular
phone, a plaintiff must establish that: (1) a call was placed
to a cell or wireless phone, (2) by the use of any automatic
dialing system and/or leaving an artificial or pre-recorded
message, and (3) without prior consent of the recipient
plaintiff. 47 U.S.C. § 227(b)(1)(A). See also
Pugliese v. Prof'l Recovery Serv., Inc., No.
09-12262, 2010 WL 2632562, at **6-7 (E.D. Mich. June 29,
2010); Strand v. Corinthian Colls., Inc., No.
13-1235, 2014 WL 1515494, at *2 (W.D. Mich. Apr. 17, 2014).
argues that Plaintiff's TCPA claims fail because she
failed to adequately plead revocation of consent. According
to the FCC, if consent has been given, “the caller may
reasonably rely on the valid consent previously given and
take the consumer at his word that he wishes for the caller
to contact him at the number he provided when the caller
obtained the consent, ” until “clear
revocation” of consent occurs. In re Rules &
Regulations Implementing the TCP Act of 1991 et al., 30
F.C.C. Rcd 7961, 7992-93 (July 10, 2015). A consumer
“may revoke consent in any manner that clearly
expresses a desire not to receive further messages.”
Id. at 7996.
argues that revocation of consent is not an element of her
prima facie case. Plaintiff correctly argues that prior
express consent is an affirmative defense, and Defendant has
the burden of proof of establishing the consent. In re
Rules & Regulations Implementing the TCP Act of
1991, 23 F.C.C. Rcd. 559, 565 (Jan. 4, 2008); Van
Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037,