Summary
The United States District Court for the Northern District of California denied Travel + Leisure Co.’s motion to dismiss Vernicky Hodge’s amended claims under the Telephone Consumer Protection Act and the Florida Consumer Collection Practices Act. The court held that Hodge plausibly alleged receipt of artificial or prerecorded calls and sufficiently alleged harassing communications, and it declined to dismiss for lack of Article III standing or failure to plead that the defendant was a statutory debt collector.
Topics
Practice areas
Questions Presented
- Whether Hodge adequately alleged an injury in fact supporting Article III standing for her TCPA and Florida Consumer Collection Practices Act claims.
- Whether Hodge adequately pleaded that Defendant used an artificial or prerecorded voice in violation of the TCPA.
- Whether Defendant's alleged consent to receive calls defeated the TCPA claim at the pleading stage.
- Whether Hodge could add a Florida Consumer Collection Practices Act claim after receiving leave to amend without an express limitation on the scope of amendment.
- Whether the Florida Consumer Collection Practices Act applies only to statutorily defined debt collectors.
- Whether Hodge adequately pleaded harassment under section 559.72(7) of the Florida Statutes.
Holdings
- Because the alleged TCPA violation and the alleged receipt of unsolicited, harassing collection calls themselves constitute the claimed injury, Hodge adequately pleaded injury in fact and her standing questions are inseparable from the merits of her underlying claims.
- The second amended complaint plausibly stated a TCPA claim by alleging sufficiently uniform, generic, and repetitive messages and call content from which the court could infer the use of an artificial or prerecorded voice.
- Consent is an affirmative defense on which the defendant bears the burden and is not an element of the plaintiff's prima facie TCPA claim; dismissal based on consent is proper at the pleading stage only when the complaint itself establishes consent.
- Hodge's addition of the Florida Consumer Collection Practices Act claim was proper because the prior leave to amend was not expressly limited and the claim was based on the same underlying events without apparent prejudice to Defendant.
- A plaintiff need not plead that the defendant is a statutorily defined debt collector to state a claim under the Florida Consumer Collection Practices Act because the Florida Act applies to any person collecting debts, unlike the federal Fair Debt Collection Practices Act.
- Hodge adequately pleaded harassment under section 559.72(7) because allegations of multiple calls per day for months, sometimes more than three calls per day, together with Defendant's disregard of her request to stop calling, support a reasonable inference of harassment at the motion-to-dismiss stage.
Key quotations
“Hodge pleads an injury in fact by pleading a TCPA violation, so the existence of standing is inseparable from the question of whether Hodge has adequately pled a TCPA violation.” (at 2)
“consent “is an affirmative defense for which the defendant bears the burden of proof.”” (at 4)
“the question of whether conduct is harassing or abusive is ordinarily an issue for the factfinder.” (at 5)
Factual background
Hodge, a California resident, purchased timeshare properties from Travel + Leisure Co. between 2018 and 2019 and allegedly incurred regular payment obligations. When payments became past due, Defendant allegedly called her multiple times per day for months, including after she asked the calls to stop and once at 6:20 a.m. Hodge alleged that the calls and voicemails used uniform, generic, prerecorded content identifying the speaker as “Sarah from Wyndham Vacation Resorts,” requesting a call to the same toll-free number, and lasting approximately 26 seconds.
Procedural history
The court previously dismissed Plaintiff's TCPA and California debt-collection claims for failure to state a claim and granted leave to amend. Plaintiff filed a second amended complaint, renewed the TCPA claim, abandoned the California claim, and added a claim under the Florida Consumer Collection Practices Act. Defendant again moved to dismiss. The court denied the motion in its entirety.