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D.G., By and Through Loidy Tang, As Next Friend, Individually and On Behalf of A Class v. William W. Siegel & Associates

June 14, 2011

D.G., BY AND THROUGH LOIDY TANG, AS NEXT FRIEND, INDIVIDUALLY AND ON BEHALF OF A CLASS, PLAINTIFF,
v.
WILLIAM W. SIEGEL & ASSOCIATES, ATTORNEYS AT LAW, LCC,
DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This case comes before the Court on the motion of Defendant William W. Siegel & Associates, Attorneys at Law, LLC ("Siegel") to dismiss the Amended Complaint of Plaintiff D.G., by and through Loidy Tang as next friend, individually and on behalf of a class, ("Plaintiff") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated below, Siegel's motion is denied.

BACKGROUND*fn1

Siegel, a debt collector, uses a telephone system, known as a predictive dialer, that dials telephone numbers without human intervention and delivers previously recorded form messages. Siegel's predictive dialer uses text-to-speech customization to insert into the message the name of the person Siegel is attempting to reach.

Plaintiff is the regular user and carrier of a cellular phone with an assigned number of XXX-XXX-3757. From August 5, 2010, to December 14, 2010, Siegel called Plaintiff's cellular phone nine times. Siegel, using a predictive dialer with text-to-speech customization, left the following prerecorded message on the voice mail of Plaintiff's cell phone before disconnecting:

Message for Kimberly Nelson. If you are not Kimberly Nelson, please hang up or disconnect now. If you are Kimberly Nelson, please continue to listen to this message. You should not listen to this message in public as this pertains to personal and private information. There will now be a three second pause in this message to allow you to listen in private. Plaintiff does not know Kimberly Nelson, has no relationship with Siegel, and never consented to the calls.

On March 18, 2011, Plaintiff filed an Amended Complaint, asserting claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"). On March 24, 2011, Siegel filed a motion to ...


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