/>iThe bar for pleading solicitations in TCPA DNC cases may have just been raised a smidge.
In Bell v. Hawx Services, 2025 WL 2533371 (E.D. Cal Sept. 3, 2025) a court dismissed a TCPA DNC case finding allegations the calls at issue were solicitations covered by the statute were insufficiently thin.
Here’s the analysis:
In its motion, Defendant argues Plaintiff’s allegations that a caller attempted to solicit him “to purchase Hawx’s pest control services” (Doc. No. 11 at ¶ 32), is insufficient because he “alleges virtually no content of the alleged violative calls in his FAC, such that this [c]ourt could reasonably determine whether they were actually ‘telephone solicitations’ as required by the TCPA.” (Doc. No. 15 at 14.) To support its argument, Defendant relies on the decision in Gulden v. Consol. World Travel Inc., No. 16-cv-01113 DJH, 2017 WL 3841491 (D. Ariz. Feb. 15, 2017). (Id. at 14.) There, the plaintiff alleged that from approximately December 4, 2015, to January 31, 2016, the defendant called his residential phone four times “for the purpose of soliciting for its products and services,” even though the plaintiff’s telephone number was registered on the DNC registry. Gulden, 2017 WL 3841491, at *1. The court found the plaintiff’s allegations insufficient to state a cognizable TCPA claim because he did “not describe the calls” and his allegation was “nothing more than a conclusion, which Twombly specifically prohibits.” Id. at *3 (citing Twombly, 550 U.S. at 555). The court concluded that without further factual enhancement, the plaintiff’s allegation that the calls were unsolicited advertisements was insufficient for his TCPA claim to survive a motion to dismiss. Id.
Like Gulden, the court finds Plaintiff has not sufficiently pled that he received a telephone solicitation within the meaning of the TCPA. Although Plaintiff argues in his opposition that he has sufficiently pled facts to allege that telephone solicitations in violation of the TCPA occurred (Doc. No. 17 at 12, 15), Plaintiff provides no details in his FAC regarding the content of the two calls he received on December 4, 2023. Instead, Plaintiff simply alleges that Defendant “attempted to solicit [Plaintiff] to purchase Hawx’s pest control services.” (Doc. No. at 11 ¶¶ 32, 36.) While Plaintiff is not required to provide a line-by-line transcript of the telephone calls in question, he is still required to provide more than a conclusory statement that Defendant attempted to solicit him. See Eggleston v. Reward Zone USA LLC, No. 20-cv-01027-SVW-KS, 2022 WL 886094, at *6–7
Interesting, no?
The Court is requiring some allegations regarding the content of the call here to credit the claim that Defendant was trying to sell its goods or services.
Probably the right result but the court did give the Plaintiff a chance to amend the complaint so it may have been a battle that ultimately doesn’t change much in the case.
Will keep an eye on it.
