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DEFENSE WINS FOUR CRITICAL ARGUMENTS IN MOTION TO DISMISS: Court Refuses to Do Plaintiffs’ Work for Them and Make Inferential Leaps to Fill in Plaintiff’s Complaint
Tuesday, March 28, 2023

Hey TCPA World!! Some interesting arguments out of the Western District of Washington in Rogers, et al. v. Assurance IQ, LLC & Boomsourcing, LLC, No. 2:21-CV-00823-TL, 2023 WL 2646468 (W.D. Wash. Mar. 27, 2023). 

But first, here’s my final four Court quotes to set our stage for this case:  

“The Court is not required to do Plaintiff’s work for them.” 

“While the Court construes all inferences in Plaintiff’s favor, the conclusory allegations simply require too many inferential leaps as currently drafted.” 

“The Court agrees with Defendants. Again, this information is known to Plaintiffs without any discovery and should be simple to include.”  

“Again, there are simply too many leaps Plaintiff request be made without any supporting facts, even at this early stage of the case.”  

Well, I think you know how this case will go…

Plaintiff filed a class action under the TCPA against Assurance IQ’s insurance services and Boomsourcing in June 2021. In April 2022, Plaintiff filed a second amended complaint. Plaintiffs seek to represent two nationwide classes: the Robocall Class and Do Not Call Registry Class. Defendants presented seven independent arguments in their motions to dismiss.  

Preliminarily, Plaintiffs urge the Court to consider evidence not included in the complaint in assessing the adequacy of its claim. Unpersuaded, the Court DECLINES to take judicial notice of

  1. “Assurance’s own filings with the Federal Communication Commission (FCC),” and
  2. “Boomsourcing’s website that Plaintiffs argue confirms its use of pre-recorded calls merely because Boomsourcing purports to place calls using soundboard technology.”

Simply put, “The Court is not required to do Plaintiff’s work for them” and “…the Court is also unwilling to make the inferential leap that any use of a soundboard technology necessarily entails placement of pre-recorded voice calls in violation of the TCPA.”  

At this point, the Court has definitely set the stage. So, let’s dive into Defendants’ seven arguments.  

First, Defendants seek dismissal of the first claim under 47 U.S.C. § 227(b) for delivery of pre-recorded telemarketing messages to cellular and residential telephone numbers. In its analysis, the Court lists several quotes from the Second Amended Complaint but ultimately finds that, even accepting the allegations as true, Plaintiffs do not provide any insight as to why they believe the calls made to them were pre-recorded beyond simply stating that they were. This claim fails.  

Second, Defendants argue that Plaintiffs fail to allege that their phone numbers are used for residential purpose and that they placed their own numbers on the DNC list. Agreeing with Defendants, the Court found that “plaintiff is master of his complaint and recognizable for articulating cognizable claims” and that Plaintiffs chose to use the passive voice and describe the telephone numbers for “personal use” which is not the same as residential use. Again, while the Court construes all inferences in Plaintiffs’ favor, the conclusory allegations simply require too many inferential leaps as currently drafted.”  

Third, Defendants present a direct liability and vicarious liability argument. While Plaintiffs did not state so in their complaint, Plaintiffs argued in their Response that Defendants had a contract to physically place calls on behalf of the other. The Court was not persuaded and reiterated that “as masters of their complaint,” Plaintiffs failed to properly plead that Boomsourcing was aware that Assurance IQ was using its platform in violation of the TCPA. The direct liability claim was also dismissed.  

Fourth, the argument for vicarious liability went down a similar path. Defendant Assurance IQ claimed that it cannot be held vicarious liability based on the Plaintiffs’ allegations. The Court agreed finding that “there is no information [in the complaint] as to what was covered by the contract between Assurance and Boomsourcing.” Even more, Plaintiffs only referenced the contract in the complaint for the purpose of establishing venue. While Plaintiffs may have a contract with the information alleged in their Response, the information was not included in the complaint. The vicarious liability is also dismissed.  

FOUR WINS for the Defense. In the last three arguments, Plaintiffs get some wins to hold them over.  

Plaintiffs seek injunctive relief to prevent Defendant from making telemarketing calls. In a small win, the Court holds that Plaintiffs have standing to pursue injunctive relief. 

Defendants argued that Plaintiffs should be denied leave to amend their complaint because their previous amendments failed to cure its deficiencies. But the Court granted Plaintiff one FINAL opportunity to amend their complaint since the earlier amendments were not made in response to a motion to dismiss.  

Lastly, Defendant Boomsourcing asked the Court to strike allegations in the operative complaint. The Court found that “while the relevance of this allegation as currently pleaded is questionable,” it was not inclined to strike it at this time. As for the class allegations, the Court reserved ruling pending a potential class certification motion.  

Well, there you have it. Maybe my title should have been How to Write a Complaint 101.  

Til next time, Countess!!! 

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