Recently, an interesting decision was made in Darren Roy vs. Dell Financial Services, LLC, 3:13-CV-738. The action arises from phone calls made by DFS to Plaintiff Darren Roy’s “1-800” business number to collect Plaintiff’s consumer debt. Roy claims DFS violated the Telephone Consumer Protection Act (TCPA), the Pennsylvania Fair Credit Extension Uniformity Act (FCEUA), and his state law right to privacy by intrusion upon seclusion. Roy alleged in his complaint that DFS called him on a repetitive and continuous basis in an attempt to collect a consumer debt he incurred from purchasing computers for his personal use. Roy also alleged that DFS called Roy over 1,000 times at his “1-800” business number without his consent using an automatic telephone dialing system and pre-recorded messages. Since Roy never gave his number to DFS, he believes that DFS used “skip tracing” to obtain it. Roy further alleges he DFS to stop calling him at his “1-800” number. Roy alleges that he sent DFS cease and desist letters in 2011, 2012, and 2013, but that DFS continued to call him. Roy filed his complaint in March of this year and DFS moved to dismiss the Complaint.
Judge Caputo noted that dismissal is appropriate only if a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. at 570 (2007). Judge Caputo also noted that the TCPA was enacted as part of the Federal Communications Act to “deal with increasingly common nuisance- telemarketing.” ErieNet, Inc. v. Velocity Net, Inc., 156 F. 3d 513, 514 (3d Cir. 1998). Roy claimed that DFS’s unauthorized and repeated calls to his “1-800” number violated the TCPA, but further alleged that these calls were made in an attempt to collect his consumer debt. Judge Caputo ruled to dismiss Roy’s TCPA claim for failure to state a claim pursuant to Fed. R. Civ. P. 12 (b)(6).quoting Meadows v. Franklin Collection Serv., Inc., 414 F. App’x 230, 235, 236. Judge Caputo stated: “The FCC has determined that all debt-collection circumstances are excluded from the TCPA’s coverage. The FCC has “unequivocally stated’ that ‘calls solely for the purpose of debt collection are not telephone solicitations and do not constitute telemarketing’ and ‘calls regarding debt collection.. are not subject to the TCPA’s separate restrictions on ‘telephone solicitations.’”
In addition, Judge Caputo denied Roy’s request to file an amended complaint. Although leave to amend should be “freely” granted “when justice so requires,” Fed. R. Civ. P. 15 (a)(2), denial of leave to amend is appropriate where amendment would be futile. Judge Caputo stated that in this case an amendment would be futile because the amendment to the Complaint would not alter the fact that Roy cannot state a claim upon which relief could be granted under the TCPA.
As the sole basis for the Court’s jurisdiction- Roy’s TCPA claim- was dismissed with prejudice, the Court declined to exercise supplemental jurisdiction over Roy’s remaining state law claims. Those claims could be re-filed in state court.
To read full decision, please follow the link http://law.justia.com/cases/federal/district-courts/pennsylvania/pamdce/3:2013cv00738/93161/20