New York

Plaintiff references other telephone numbers without any allegations that Synchrony called those numbers, the type of telephone, the status of consent, the dates of such calls, etc. Compl. ¶ 11. Case 5:20-cv-00061-MTT Document 4 Filed 06/01/20 Page 9 of 26

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    Plaintiff alleges that Synchrony called her over 750 times between January 1, 2014 and the filing of the Complaint. Compl. ¶ 57. Plaintiff offers the bare legal conclusion, with no supporting factual allegations, that these calls were made using an “automatic telephone dialing system” (“ATDS”). Id. ¶ 47.
    Plaintiff further alleges the calls were made at inconvenient times, “with such pattern and frequency as can reasonably be expected to harass,” that undated calls contained an undisclosed pre-recorded message, that the calls were made at different times to “surveil” when she would receive such calls, and that the calls were designed to harass and intimidate Plaintiff to pay her debt, and such calls were made knowingly and with intent. See Compl. at ¶¶ 12, 27, 52, 72, 95.
    Plaintiff alleges that Synchrony engaged in harassing phone calls in an attempt to collect on Plaintiff’s Synchrony account despite Plaintiff’s request for the calls to cease. See generally Compl. Plaintiff contends this conduct violated the TCPA, the FDCPA, and the GFBPA, and that Plaintiff suffered actual damages as a result. Id. at ¶ 90.
    LEGAL STANDARD
    A complaint must provide “‘a short and plain statement of the claim showing that [the plaintiff is] entitled to relief’ . . . to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, Case 5:20-cv-00061-MTT Document 4 Filed 06/01/20 Page 10 of 26
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    2 L. Ed. 2d 80 (1957)). Although a court must accept the factual allegations in the pleadings as true, to state a valid claim of relief a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. 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). A complaint, however, will not suffice “if it tenders naked assertions devoid of further factual enhancement.” Id. (quotations and citations omitted). The court is not required to accept legal conclusions asserted in the complaint. See id. at 663-64.
    To survive a motion to dismiss under Rule 12(b)(6), the complaint must offer more than “labels and conclusions,” and a mere “formulaic recitation of the elements of a cause of action” will not do. Ashcroft at 678 (citing Twombly, 550 U.S. at 555.) For this reason, a court ruling on a motion to dismiss need not accept as true the “legal conclusions” set forth in a complaint. Id. at 663-64.
    ARGUMENT
  1. Plaintiff’s TCPA Claim Based on Use of an ATDS Without Consent Should Be Dismissed Because Plaintiff Does Not Allege that Synchrony Used an ATDS Under Controlling Case Law.
    The TCPA defines the term ‘automatic telephone dialing system’ as follows: (1) The term “automatic telephone dialing system” means equipment which has the capacity—
    (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
    (B) to dial such numbers.