Plaintiff Doesn't Allege Facts Sufficient for TCPA Claim: Aflac Motion to Dismiss
Aflac seeks the dismissal in its entirety of Stewart Smith’s first amended Telephone Consumer Protection Act class action for failure to state a claim upon which relief can be granted (see 2403210004), said its motion Monday (docket 2:24-cv-00679) in U.S.…
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District Court for Eastern Pennsylvania in Philadelphia. Smith’s complaint alleges that in Aflac’s “overzealous attempt” to market its motor vehicle warranties, it willfully or knowingly made, and continues to make, unsolicited telemarketing phone calls to numbers listed on the national do not call registry (see 2402160002). But the claim in Smith’s amended complaint “arises from vague allegations of an unspecified number of calls” to his phone “made by unidentified individuals,” said Aflac’s memorandum of law in support of its motion to dismiss. Smith doesn’t allege that he received more than one call within a 12-month period, “as he must,” it said. He also doesn’t put forth “any specific facts in support of his conclusory assertion that Aflac itself or someone acting on Aflac’s behalf made the call,” it said. For example, he doesn’t identify the number that called him, describe how the caller identified himself or herself, detail what was said during the call, or provide any other facts “that could identify Aflac as the caller,” said the memorandum. Because Smith doesn’t allege sufficient facts to establish a TCPA claim, the court should dismiss his amended complaint with prejudice under Rule 12(b)(6), it said.