United States District Court, E.D. Washington
MEMORANDUM OPINION AND ORDER RE: MOTION TO
L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE
THE COURT is Defendant Ocwen Loan Servicing, LLC's
(“Defendant” or “Ocwen”) Motion to
Dismiss or in the Alternative to Stay the Case (ECF No. 23).
Plaintiff filed a Response (ECF No. 27) and Defendant filed a
Reply (ECF No. 28). The Motion was submitted without oral
argument. This Order memorializes the court's ruling on
well-pleaded facts are accepted as true as follows for the
purposes of the Motion to Dismiss.
November 22, 2011, through December 16, 2015, Plaintiff Susan
Embree received calls on her cellular phone from Defendant.
(ECF No. 19 at ¶28). When she would answer the calls,
there would often be silence, sometimes with a click or
beep-tone before an Ocwen representative would pick up and
start speaking. (ECF No. 19 at ¶30). Plaintiff contends
she received calls at times from Defendant where the caller
was a recorded voice or message and not a live
representative. (ECF No. 19 at ¶31). In total, Plaintiff
received at least 1, 505 calls from Defendant on her cell
phone. (ECF No. 19 at ¶32).
alleges she never gave Defendant her cell phone number on any
loan application. (ECF No. 19 at ¶34). She also alleges
she revoked any type of prior consent by stating she no
longer wished to be contacted by phone. (ECF No. 19 at
¶35). Plaintiff claims after she stated she no longer
wanted to be called, Defendant continued to contact
Plaintiff. (ECF No. 19 at ¶37).
alleges she has suffered frustration and distress because of
the calls. (ECF No. 19 at ¶42). She also alleges the
calls “disrupted Plaintiff's daily activities and
the peaceful enjoyment of Plaintiff's personal and
professional life, including the ability to use
Plaintiff's phone.” (ECF No. 19 at ¶44).
survive a motion to dismiss, the pleading must allege
sufficient facts, which, accepted as true, “state a
claim to relief that is plausible on its face.”
Bell Atlantic 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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). In considering a motion
to dismiss under Fed.R.Civ.P. 12(b)(6), “the court
accepts the facts alleged in the complaint as true.”
Balistreri v. Pacifica Police Dept., 901 F.2d 696,
699 (9thCir. 1990). However, a claim may be
dismissed “based on the lack of a cognizable legal
Telephone Consumer Protection Act (“TCPA”) makes
it “unlawful for any person within the United States
... to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called
party) using any automatic telephone dialing system or an
artificial or prerecorded voice... to any telephone number
assigned to ... cellular telephone service... unless such
call is made solely to collect a debt owed to or guaranteed
by the United States.” 47 U.S.C. §
227(b)(1)(A)(iii); see also, Van Patten v.
Vertical Fitness Group, LLC, 847 F.3d 1037, 1041-42
(9th Cir. 2017). An “automated telephone
dialing system” is defined as “equipment which
has the capacity- to store or produce telephone numbers to be
called, using a random or sequential number generator, and to
dial such numbers.” 47 U.S.C. § 227(a)(1).
Federal Communications Commission (“FCC”) is
charged with implementing the TCPA. See 47 U.S.C.
§ 227(b)(2); Van Patten, 847 F.3d at 1041. The
Court of Appeals has exclusive jurisdiction to set aside
“all final orders of the Federal Communications
Commission made reviewable by section 402(a) of title
47.” 28 U.S.C. § 2342(1). Certain FCC orders are
subject to exclusive review in the Court of Appeals for the
District of Columbia. See 47 U.S.C. § 402(b).
2015, the FCC issued a ruling providing interpretation of
several provisions of the TCPA. In the Matter of Rules
& Regulations Implementing the Telephone Consumer
Protection Act of 1991, 30 F.S.C.R. 7961 (July 10, 2015)
(“2015 FCC Order”). The 2015 FCC Order has been
challenged in a lawsuit currently pending before the Court of
Appeals for the District of Columbia. See ACA
International v. FCC, No. 15-1211 (D.C. Cir.). The
issues presented in that appeal relate to: (1) whether the
new definition of “automatic telephone dialing
system” violates due process; (2) whether the 2015 FCC
Order's treatment of “prior express consent”,
including the provision for a right of revocation, violates
due process; and (3) whether the 2015 FCC Order violates due
process by disregarding Congress' findings in the TCPA.
See ACA International, Petitioner ACA
International's Statement of Issues, Dkt. #21 (August 12,
2015). Oral argument in the ACA International case
was heard on October 19, 2016. (Id. at Dkt. #131)
(October 19, 2016). No opinion by the D.C. Circuit has been
issued to date.
parties assert the decision in ACA International
will be binding on this court. However, the parties do not
discuss 47 U.S.C. § 402(b) or identify which subsection
the ACA International case falls into. See
Campos v. F.C.C., 650 F.2d 890, 892-93 (7th
Cir. 1981) (stating “it is well settled that Section
402(b) is to be narrowly construed and confined to the