United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. HALE, JUDGE UNITED STATES DISTRICT COURT
Dwane Jones brings this action against Defendant DASCO -
Norton Home Medical Equipment, LLC, alleging violations of
the Telephone Consumer Protection Act, 47 U.S.C. § 227
et seq. (Docket No. 1) DASCO moves to dismiss the complaint,
arguing that Jones's claim fails as a matter of law
because he consented to receive the calls at issue. (D.N. 7)
Because an individual may revoke his prior consent under the
TCPA, DASCO's argument is unavailing. The Court will
therefore deny DASCO's motion.
following facts are set forth in the complaint and taken as
true for the present motion. See Tackett v. M &
G Polymers, USA, LLC, 561 F.3d 478, 488 (6th
Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d
461, 466 (6th Cir. 2009) (citations omitted)).
action arises from DASCO's attempt to collect a debt from
Jones related to his purchase of a medical device.
(See D.N. 7) Jones contends that DASCO called him
approximately 250 times, and that the calls were made using
an automatic telephone dialing system. (D.N. 1, PageID # 3)
Jones also alleges that he instructed DASCO “on several
occasions” to stop calling his cellphone number.
(Id., PageID # 4)
filed this action on February 13, 2018, alleging violations
of the TCPA's prohibition against the use of an automatic
telephone dialing system. (D.N. 1) See also 47
U.S.C. § 227(b)(1)(A)(iii). DASCO now moves to dismiss
the complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). (D.N. 7)
order to avoid dismissal for failure to state a claim,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is plausible on its face “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. If “the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” the plaintiff has
not shown that she is entitled to relief. Id. at
679. The complaint need not contain “detailed factual
allegations, ” but it must provide “more than an
accusation.” Id. (citing Twombly, 550 U.S. at
555). For purposes of a motion to dismiss, “a district
court must (1) view the complaint in the light most favorable
to the plaintiff and (2) take all well-pleaded factual
allegations as true.” Tackett, 561 F.3d at 488 (citing
Gunasekera, 551 F.3d at 466).
support of its motion to dismiss, DASCO attaches several
exhibits. (See D.N. 7-1; D.N. 7-2; D.N. 7-3)
“Because [these] document[s] [are] neither contained
nor referenced in the pleadings, the Court must either reject
the evidence or treat [DASCO's] motion as one for summary
judgment.” See Tucker v. Heaton, No.
5:14-CV-00183-TBR, 2015 WL 3935883, at *2 (W.D. Ky. June 26,
2015). Having conducted a cursory review of the attached
exhibits, the Court finds that the documents would not affect
the following legal analysis. The Court will therefore reject
the evidence and analyze the present motion under the
standard applicable to Rule 12(b)(6) motions.
argues that Jones's claim under the TCPA fails as a
matter of law because Jones consented to receive the calls at
issue. (D.N. 7, PageID # 23) As a general principle, that
argument would ordinarily be correct. The TCPA makes it
unlawful for any person to place a call “using any
automatic telephone dialing system” to a cellphone No.
without obtaining the “prior express consent of the
called party.” 47 U.S.C. § 227(b)(1)(A)(iii);
see also Baisden v. Credit Adjustments, Inc., 813
F.3d 338, 341-42 (6th Cir. 2016). The Federal Communications
Commission (FCC) has interpreted “prior express
consent” to include a form of implied consent.
See In the Matter of Rules and Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd.
8752, 8769 (1992) (“[P]ersons who knowingly release
their phone No. have in effect given their invitation or
permission to be called at the No. which they have given,
absent instructions to the contrary.”).
even if the Court were to accept DASCO's argument and
assume that Jones consented to the calls by releasing his
phone No. to DASCO, Jones may still have a plausible claim.
The FCC has ruled that once given, consent may be revoked
“at any time and through any reasonable means.”
In re Rules and Regulations Implementing the Tel. Consumer
Prot. Act of 1991, 30 FCC Rcd. 7961, 7989-90 (2015),
overruled on other grounds, ACA Int'l v. Fed.
Commc'ns Comm'n, 885 F.3d 687 (D.C. Cir. 2018);
see also Eldridge v. Cabela's Inc., No. 3:16-
cv-536-DJH, 2017 WL 4364205, at *2 (W.D. Ky. Sept. 29, 2017)
(recognizing that an individual may revoke his prior consent
under the TCPA). Jones alleges that “[o]n several
occasions since the inception of [his DASCO] account, [he]
instructed [DASCO's] agent(s) to stop calling his
cellular telephone.” (D.N. 1, PageID # 4) Indeed, he
claims that on one occasion, he specifically
“instructed [DASCO's] agent to take him off [its]
call list and stop calling his cellular telephone.”
In response, DASCO contends that Jones's revocation
argument is ineffective because
Jones has not produced any evidence that he revoked consent
to be called by DASCO . . . . He has not produced any
recordings or documentation reflecting a ...