Lazar Shcherb v. Angi Homeservices, Inc., 19-cv-367 (S.D.N.Y. Oct. 25, 2019)
Plaintiff filed suit against various corporate defendants alleging that they used an automatic telephone dialing system (ATDS) to call his cell phone in violation of the Telephone Consumer Protection Act (TCPA) contending that, “[u]pon information and belief,” “when Defendants made these calls, [they] used equipment that had the capacity to store or produce telephone numbers . . . using a random or sequential number generator and/or a predictive dialer” with the capacity to dial such numbers.”
Concluding that this allegation was defective, the Court held that the Complaint “must be dismissed because it does not adequately allege that Defendants used an automatic telephone dialing system [. . .] Plaintiff’s complaint merely parrots the statutory language. The complaint avers, ‘[u]pon information and belief,’ that Defendant ‘used equipment that had the capacity to store or produce telephone numbers to be called and/or texted, using a random or sequential number generator and/or predictive dialer, with the capacity to dial such numbers.’ The complaint contains no other factual content in support of this naked assertion. It must, therefore, be dismissed.”
In reaching the conclusion that dismissal was proper, the Court, citing various cases, recognized that while there is no binding precedent in the Second Circuit on this issue, the “vast majority of courts to have considered the issue have found that ‘a bare allegation that defendants used an ATDS is not enough.’”
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