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Tamara Vance v. Bureau of Collection Recovery LLC

March 11, 2011

TAMARA VANCE, PLAINTIFF,
v.
BUREAU OF COLLECTION RECOVERY LLC, DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff's one-count amended complaint [8] asserts a violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (2006) ("TCPA"). Before the Court is Defendant's motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) [28]. For the following reasons, Defendant's motion is respectfully denied.

I. Background*fn1

The few facts relevant to the disposition of the instant motion are straightforward. Plaintiff Tamara Vance is an individual consumer. ¶ 5. Defendant Bureau of Collection Recovery LLC is a collection agency engaged in the business of recovering debts for its clients. ¶ 7. Defendant has been attempting to collect a debt that Plaintiff allegedly incurred for personal, family, or household purposes (not a business-related debt). ¶ 9.

Plaintiff alleges that in May 2010, she received multiple automated phone calls on her cellular phone from Defendant. ¶ 10. Plaintiff alleges that her phone rang, she answered it, and then she heard a "pre-recorded voice" that "told her to hold for assistance." ¶ 12. On the basis of these facts, Plaintiff alleges that the calls were placed by "predictive dialers" that "place calls without human intervention." ¶ 11.

Plaintiff further alleges that a representative of the company informed her that Defendant obtained her phone number when she called to inquire about her bill. ¶ 13. Plaintiff alleges that she never gave Defendant her phone number or permission to call her at that number. ¶¶ 14--15.*fn2

She further alleges that she did not obtain the cell phone number that Defendant called until after she had paid off the disputed debt. ¶ 16. Finally, Plaintiff alleges that Defendant's website claims that it has "top of the line Avaya Mosaix predictive dialing systems" and that "dialing is our business." ¶ 8 (quoting http://www.bureauofcollection.com/bcradv.html).

II. Legal Standard for Rule 12(b)(6) Motions to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555, 569 n.14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint."

Twombly, 550 U.S. at 562. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

The TCPA restricts the use of "automated telephone equipment." 47 U.S.C. § 227. The TCPA states, in relevant part:

It shall be unlawful for any person * * * (A) to make any call (other than a call made for emergency purposes or made with the express consent of the called party) using any automatic telephone dialing system or an artificial prerecorded voice * * * (iii) to any telephone number assigned to a * * * cellular telephone service * * * . ยง 227(b)(1)(A)(iii). The Act defines "automatic telephone dialing system" as "equipment which has the capacity-(A) to store or produce ...


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