Darnell Gaddis, et al. v. US Bank NA

• Court: District Court, D. Arizona
• Decided: March 24, 2026
• Docket: 2:24-cv-02683
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Darnell Gaddis, et al., No. CV-24-02683-PHX-DJH

10 Plaintiffs, ORDER

11 v.

12 US Bank NA,

13 Defendant. 14 15 Defendant U.S. Bank National Association (“US Bank” or “Defendant”) filed a 16 Motion to Dismiss pro se Plaintiffs Darnell Gaddis and Kahala Gaddis’s (collectively, 17 “Plaintiffs”) Second Amended Complaint (“SAC”) for failure to state a claim (Doc. 45). 18 Plaintiffs initially did not file a response, and the Court, therefore, issued an Order to Show 19 Cause (Doc. 47). Plaintiffs then filed a Response to the Order to Show Cause and 20 Defendant’s Motion to Dismiss (Doc. 48), and Defendant filed a Reply (Doc. 49). 21 After Defendant filed its Reply, Plaintiff filed a Response in Opposition to 22 Defendant’s Motion to Dismiss (Doc. 50). Defendant, consequently, filed a Motion to 23 Strike the Response (Doc. 51). Defendant’s Motion to Strike is fully briefed. 24 (See Docs. 52, 53). 25 I. Background 26 Plaintiffs allege they sent a Defendant cease-and-desist letter instructing it to stop 27 all communications with them on April 26, 2022. (Doc. 42 at 2, 7-11). On April 29, 2022, 28 Defendant allegedly mailed a letter confirming that it received the cease-and-desist letter. 1 (Id. at 2, 14). Notwithstanding its confirmation, Plaintiffs allege that Defendant then called 2 Plaintiffs twenty-seven times from September 16, 2024, to October 7, 2024. (Id. at 2, 16- 3 18). Plaintiffs allege “Defendant’s calls occurred with excessive frequency [. . .] despite 4 Plaintiffs’ clear and repeated verbal revocations, made during live conversations on 5 September 17, 19, and 23, 2024. Additionally, Plaintiffs recorded subsequent calls with 6 Defendants’ agents on September 24, October 2, and October 4, 2024.” (Id. at 2). “No 7 voicemails were left, yet the excessive volume, repetitive nature, and timing of the calls 8 caused significant disruption to Plaintiffs’ daily lives, interfering with their peace of mind, 9 sleep, and ability to receive important communications.” (Id.). “When Plaintiffs returned 10 the phone calls using the number displayed on their caller ID, the caller ID name appeared 11 as either ‘Debt Collector Credit Agency’ or ‘Bank Card Prepaid Debit Card.’ ” (Id.) Upon 12 returning the call, Plaintiffs allegedly received an automated greeting that stated “ ‘[t]hank 13 you for calling Card Member Services.’” (Id.) At some point after the greeting, Plaintiffs 14 says they spoke to a live agent who verified their personal information. (Id.) After 15 Plaintiffs disclosed their information to the agent, the agent informed them the call was 16 being recorded and was an attempt to collect a debt issued by Defendant. (Id.) Plaintiffs 17 allege that these calls only ended when the current legal action was brought. (Id.) 18 Plaintiffs originally filed suit on October 7, 2024, and have since amended their 19 Complaint twice. On July 11, 2025, Plaintiffs filed their SAC (Doc. 42), bringing claims 20 under the Fair Debt Collection Practices Act (“FDCPA”) and the Telephone Consumer 21 Protection Act (“TCPA”) against Defendant. (Id. at 1). Defendant now moves to dismiss 22 Plaintiffs’ SAC for failure to state a claim for relief. (Doc. 45). 23 II. Legal Standard 24 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim. 25 Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and 26 plain statement showing that the pleader is entitled to relief for their claims. 27 Fed. R. Civ. P. 8(a)(2). This standard does not require “‘detailed factual allegations,’ but 28 it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 2 544, 555 (2007)). A plaintiff must allege facts sufficient to “raise a right to relief above 3 the speculative level” and “state a claim to relief that is plausible on its face.” Twombly, 4 550 U.S. at 555, 570. “A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable 6 for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint 7 states a plausible claim for relief will [. . .] be a context-specific task that requires the 8 reviewing court to draw on its judicial experience and common sense.” Id. at 679. 9 Dismissal of a complaint for failure to state a claim may be based on either the “lack 10 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 11 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In 12 reviewing a motion to dismiss, courts will “accept factual allegations in the complaint as 13 true and construe the pleadings in the light most favorable to the nonmoving party.” 14 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But 15 courts are not required “to accept as true a legal conclusion couched as a factual allegation.” 16 Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). 17 When considering a motion to dismiss based on failure to state a claim, a court may 18 “consider certain materials—documents attached to the complaint, documents 19 incorporated by reference in the complaint, or matters of judicial notice—without 20 converting the motion to dismiss into a motion for summary judgment.” United States v. 21 Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). “However, [courts] need not. . . accept as true 22 allegations that contradict matters properly subject to judicial notice or by exhibit.” 23 Produce Pay, Inc. v. Izguerra Produce, Inc., 39 F.4th 1158, 1161 (9th Cir. 2022) (internal 24 citations and quotes omitted). Where there is a conflict between allegations in the 25 complaint and exhibits attached to the complaint, the exhibits control. Stockwell v. Kanan, 26 442 F. App’x 911, 913 (5th Cir. 2011); see also Friess v. Shellpoint Mortg. Servicing, 2022 27 WL 742728, at *4 n.5 (D. Ariz. Mar. 11, 2022) (finding plaintiff failed to state a claim 28 when allegation is directly contradicted by defendant’s attached evidence) (citing Steckman 1 v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998)). 2 III. Discussion 3 Defendant moves to dismiss Plaintiffs’ FDCPA and TCPA claims, arguing that 4 Plaintiffs do not and cannot establish vital elements of their claims. (See Doc. 45 at 3–8). 5 Plaintiffs disagree, asserting that the “false name” exception applies to its FDCPA claim 6 and that whether Defendant used an automated dialing system is a factual question not 7 appropriate to consider at this stage. (Doc. 45 at 2). The Court will consider each of 8 Plaintiffs’ claims in turn. 9 A. FDCPA Claim 10 Defendant asserts that it is not a third-party debt collector and is therefore not subject 11 to the FDCPA. 15 U.S.C. § 1692a(6). Plaintiffs assert that Defendant, by making use of 12 a different name, is effectively a debt collector. (Doc. 42 at 3). For the following reasons, 13 the Court finds that Plaintiffs have not sufficiently plead their claim. 14 The FDCPA was enacted to “to eliminate abusive debt collection practices by debt 15 collectors [. . .] and to promote consistent State action to protect consumers against debt 16 collection abuses.” 15 U.S.C. § 1692(e). To achieve this end, the FDCPA strictly regulates 17 the conduct of debt collectors by both imposing affirmative duties and prohibiting abusive 18 practices. Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1060–61 (9th Cir. 2011). 19 It proscribes “any conduct the natural consequence of which is to harass, oppress, or abuse 20 any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. 21 Nonetheless, §1692d only applies to the actions of debt collectors as defined by 22 § 1692a. 15 U.S.C. § 1692d (“A debt collector may not engage in any conduct the natural 23 consequence of which is to harass, oppress, or abuse any person in connection with the 24 collection of a debt.”) (emphasis added). Whether an entity qualifies as a debt collector is 25 a question of law. See Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1208 (9th Cir. 26 2013) (“Because these prohibitions apply only to “debt collector[s]” as defined by the 27 FDCPA, the complaint must plead ‘factual content that allows the court to draw the 28 reasonable inference’ that Wells Fargo is a debt collector.”); see also Alston v. Midland 1 Credit Mgmt. Inc., No. CV-25-02196-PHX-DWL, 2025 WL 2444056, at *3 (D. Ariz. Aug. 2 25, 2025) (dismissing plaintiff’s claim for failing to allege that Defendant was a debt 3 collector); see also Gayford v. Flagstar Bank FSB, 2014 WL 11662796, at *3 (D. Ariz. 4 Oct. 10, 2014) (dismissing plaintiff’s claim for failing to factually allege defendant was a 5 debt collector). The FDCPA defines “debt collector” as “any person who uses any 6 instrumentality of interstate commerce or the mails in any business the principal purpose 7 of which is the collection of any debts, or who regularly collects or attempts to collect, 8 directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. 9 § 1692a(6). Debt collectors are implicated under the FDCPA, while creditors who seek 10 only to collect on their own debts generally are not. 15 U.S.C. § 1692a(4),(6)(F). 11 Plaintiffs allege that Defendant, “the original creditor,” is nonetheless liable under 12 the FDCPA here because “it acted as a ‘debt collector’ within the meaning of 15 U.S.C. 13 §1692a(6) by operating a dedicated internal collections department under the name “Card 14 Member Services.” (Doc. 42 at 3). Under the FDCPA, a creditor only constitutes a “debt 15 collector” if “in the process of collecting [its] own debts, [it] uses any name other than [its] 16 own which would indicate that a third person is collecting or attempting to collect such 17 debts.” 15 U.S.C. § 1692a(6). This is the “false name” exception. “The false-name 18 exception has three components: a creditor must (1) use a name other than its own (2) in a 19 way that would indicate a third person is attempting to collect its debt (3) in the process of 20 collecting its own debt.” Pinson v. JPMorgan Chase Bank, Nat’l. Ass’n., 942 F.3d 1200, 21 1209 (11th Cir. 2019); 15 U.S.C. § 1692a(6). 22 Defendant argues that Plaintiffs’ “allegations do not meet the exception” and that 23 the “allegations and the SAC exhibits defeat any argument that Plaintiffs were fooled into 24 believing that ‘Cardmember Services’ was anything other than a department within U.S. 25 Bank charged with servicing credit cards.” (Doc. 45 at 5–6, 8). 26 Courts in the Ninth Circuit use a “least sophisticated debtor” standard in assessing 27 whether debt collector communications violate the proscriptions of § 1692e, and the Court 28 finds it appropriate to apply this standard to determine a debtor’s perception under 1 1692a(6).. See e.g., Afewerki v. Anaya L. Grp., 868 F.3d 771, 775 (9th Cir. 2017) 2 (affirming the standard for § 1692e); Baker v. G. C. Servs. Corp., 677 F.2d 775, 778 (9th 3 Cir. 1982) (establishing the standard for § 1692g). The “least sophisticated debtor” 4 standard “is ‘designed to protect consumers of below average sophistication or 5 intelligence,’ or those who are ‘uninformed or naive,’ particularly when those individuals 6 are targeted by debt collectors.” Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1062 7 (9th Cir. 2011) (quoting Duffy v. Landberg, 215 F.3d 871, 874–75 (8th Cir. 2000)). Thus, 8 although it is still an objective one, “the standard is lower than simply examining whether 9 particular language would deceive or mislead a reasonable debtor.” Swanson v. S. Oregon 10 Credit Serv., Inc., 869 F.2d 1222, 1227 (9th Cir. 1988). However, the least sophisticated 11 consumer standard prevents liability for idiosyncratic, bizarre, or unreasonable 12 assumptions regarding the collection action “by preserving a quotient of reasonableness 13 and presuming a basic level of understanding and willingness to read with care.” United 14 States v. Nat’l Fin. Servs., Inc., 98 F.3d 131, 136 (4th Cir. 1996); Afewerki, 868 F.3d at 15 775; Pinson, 942 F.3d at 1209. See also Gonzales, 660 F.3d at 1062 (quoting Rosenau v. 16 Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008), for same proposition). 17 Plaintiffs allege two ways Defendant misled them into thinking it was a third-party 18 debt collector. First, Plaintiffs say the automated greeting they received when they returned 19 Defendant’s calls identified itself as “Card Member Services” instead of US Bank. 20 (Doc. 42 at 3). Second, Plaintiffs say that Defendant used two caller IDs, “Debt Collector 21 Card Agency” and “Bank Card Prepaid Debit Card,” neither which were Defendant’s 22 name. (Doc. 42 at 3). The Court will examine each of these allegations. 23 1. Automated Greetings 24 Plaintiffs first allege that when they would return calls to the number on their caller 25 ID, an “automated voice stated: ‘Thank you for calling Card Member Services.’” (Id. at 3). 26 Plaintiffs say “[a]t no time did the greeting identify U.S. Bank, nor did it disclose that ‘Card 27 Member Services’ was U.S. Bank.” (Id.) Plaintiffs’ own Exhibits, however, contradict 28 these allegations. 1 Plaintiffs characterize Exhibit E to the SAC as a “Transcription of recordings related 2 to the unsolicited calls.” (Doc. 42 at 19). Those transcripts reflect that customer service 3 representatives state the calls were coming from US Bank, ask Plaintiff Gaddis if she had 4 any other accounts with US Bank, and assure her that she “shouldn’t receive any more calls 5 from US bank.” (Id. at at 21 (“And this is a us [sic] bank card”), 24 (“We were calling 6 from us [sic] bank.”), 25, 28). Plaintiffs were promptly informed of the caller’s identity 7 shortly after the automated greeting. (Doc. 42 at 2). Thus, even if the automated greeting 8 was initially misleading, Plaintiffs’ exhibits indicate that the customer agent resolved that 9 uncertainty when Plaintiffs returned the calls. Contrast with Maguire v. Citicorp Retail 10 Servs., Inc., 147 F.3d 232, 236 (2d Cir. 1998) (holding personnel’s failure to identify as 11 creditor’s employees when receiving calls was deceptive because it prevented debtors from 12 discovering the nature of their debt). 13 Plaintiffs’ Exhibit B is an April 29, 2022, letter on US Bank letterhead, instructing 14 Mr. Gaddis to mail or fax any revocation of his verbal cease and desist request to 15 “Cardmember Service.”1 (Doc. 42 at 14). This letter is signed by Cardmember Service, 16 but denotes at the bottom that US Bank is “the creditor and issuer”. (Id. (“The creditor and 17 issuer is [sic] U.S. Bank National Association”)). Even if the least sophisticated consumer 18 believed “Cardmember Service” was a third party, this misunderstanding would have been 19 dispelled by the letterhead and the text at the bottom of the letter. Contrast with Maguire, 20 147 F.3d at 236 (holding that prior correspondences were insufficient because stationary, 21 return address, and text all failed to indicate “Debtor Assistance” was part of defendant). 22 These Exhibits contradict Plaintiffs assertion that they were fooled into believing that 23 someone other than US Bank was trying to collect on its debt. 24 2. Automated Caller Identification 25 Plaintiffs further allege that the use of two distinct caller IDs, “Debt Collector Credit 26 Agency” and “Bank Card Prepaid Debit Card,” led Plaintiffs to believe multiple entities 27

28 1 Plaintiffs transcribe this name as “Card Member Services” in the SAC. (See e.g. Doc. 42 at 2). The Court finds this transcription distinction negligible. 1 were attempting to contact them. (Doc. 42 at 3). But under the circumstances as alleged 2 by Plaintiffs, the fact that the caller identifications failed to indicate US Bank was calling 3 does not indicate a third person was attempting to collect on the debt. Plaintiffs’ own 4 allegations acknowledge that when these calls were returned, the receiver identified 5 themselves as US Bank employees shortly after the call began. (Id. at 2). As discussed 6 above, even if the initial unanswered calls raised questions as to who was calling on the 7 debt, Plaintiffs’ exhibits indicate that the customer agent resolved that uncertainty when 8 Plaintiffs returned the calls. Contrast with Maguire 147 F.3d at 236 (holding personnel’s 9 failure to identify as creditor’s employees when receiving calls was deceptive because it 10 prevented debtors from discovering the nature of their debt). Even Plaintiffs’ statements 11 to the customer service representative indicate that despite the different caller IDs, they 12 knew these calls were from the same caller. (Doc. 42 at 2 (“Plaintiffs’ clear and repeated 13 verbal revocations of consent, made during live conversations on September 17, 19, and 14 23, 2024”); at 21 (“And so I called yesterday after receiving multiple calls”); Id. at 24 15 (“You guys keep calling me every single day.”); at 28 (“I’ve had multiple conversations 16 about not calling my number.”)). Id. Therefore, Plaintiffs cannot sustain a claim under 17 §1692a(6) based on the caller ID. 18 Under the circumstances alleged by Plaintiffs in their SAC, the least sophisticated 19 debtor would have understood the calls they were receiving were from creditor US Bank 20 to collect on an outstanding balance. The false-name exception does not apply such that 21 Defendant can be liable under the FDCPA as a third-party debt collector. Moreover, as 22 Plaintiffs’ allegations are contradicted by their own exhibits and Plaintiffs’ have twice 23 amended their Complaint, the Court finds further amendment would be futile. Plaintiffs’ 24 FDCPA claim is therefore dismissed with prejudice. Cf. Ebner v. Fresh, Inc., 838 F.3d 25 958, 966 (9th Cir. 2016) (finding dismissal of a claim that could not meet the reasonable 26 consumer standard was not in error). 27 B. TCPA Claim 28 Plaintiffs also allege that Defendants violated the TCPA, specifically 47 U.S.C. 1 § 227(b)(1)(A), which prohibits the use of “any automated telephone dialing system or an 2 artificial or prerecorded voice” used to make non-emergency calls or calls without prior 3 express consent. Defendant argues that Plaintiffs’ claim should be dismissed because they 4 fail to allege that Defendant utilized an automatic telephone dialing system (“ATDS”). 5 (Doc. 45 at 3–4). Plaintiffs make three counter allegations: (1) that the question of whether 6 Defendant made use of an ATDS is a factual determination (Doc. 42 at 2), (2) because they 7 revoked their consent, any calls were presumptively unlawful, regardless of the method or 8 technology used (id.), and (3) that the calls were preceded by a “two-to-three second pause, 9 indicating the use of an autodialer” and that “several were placed in rapid succession, 10 consistent with predictive dialing” (Doc. 48 at 2). The Court will address each of these 11 assertions individually. The Court notes that a complaint is not an appropriate place to 12 raise arguments or cite case law. However, the Court will briefly address Plaintiffs’ cited 13 cases where they are relevant. 14 1. Plaintiffs must allege the use of ATDS at the pleading stage. 15 Plaintiffs argue that “the specific capabilities of Defendant’s call system—whether 16 it qualifies as an ATDS—are factual issues appropriate for discovery, not dismissal.” 17 (Doc. 42 at 2). Plaintiffs cite Meyer v. Bebe Stores, Inc., 2015 WL 431148, at *4 (N.D. 18 Cal. 2015) to support this claim. (Id.) This citation does little to help Plaintiffs, however. 19 The Meyer plaintiff did allege the use of an ATDS, with evidence such as the fact that a 20 message was issued en masse and contained a request to opt-in. Meyer, 2015 WL 431148 21 at *4 (citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). Thus, 22 the Meyer court necessarily did not find that plaintiffs were not required to allege the use 23 of an ATDS. Instead, it held that the allegation needs to be plausible to survive a motion 24 to dismiss. Id. The Ninth Circuit has been clear that a valid TCPA claim requires plaintiff 25 to allege “(1) the defendant called a cellular telephone number; (2) using an automatic 26 telephone dialing system; (3) without the recipient’s prior express consent.” Los Angeles 27 Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 804 (9th Cir. 2017) (internal citations and 28 quotations omitted). Plaintiffs cannot file a lawsuit without supporting facts in the hope of 1 later discovering facts to support their theory. See Webb v. Trader Joe's Co., 999 F.3d 2 1196, 1204 (9th Cir. 2021) (holding the court cannot condone the use of discovery as a 3 ‘fishing expedition’ when plaintiff has only gross speculation). Rather, Plaintiffs must 4 plead sufficient, supporting facts that Defendants used an ATDS in their SAC, and they 5 have failed to do so here. 2. Revocation of consent does not render calls presumptively 6 unlawful. 7 Plaintiffs claim that “[t]he core issue is that Defendant made repeated calls after 8 consent had been revoked,” and that, after consent is revoked, “any subsequent calls are 9 presumptively unlawful under the TCPA, regardless of method or technology used. 10 (Doc. 42 at 2). In the SAC, to support this argument, Plaintiffs cite Van Patten v. Vertical 11 Fitness Grp., LLC, 847 F.3d 1037, 1040 (9th Cir. 2017). In their Response, Plaintiffs cite 12 to Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014). (Doc. 48 at ¶13). 13 Neither of these cases support Plaintiffs’ assertions, however. Van Patten does not support 14 the premise that the method or technology used is irrelevant, because there both parties 15 agreed the defendants made use of ATDS. Van Patten, 847 F.3d at 1043. Like Van Patten, 16 Osorio does not state that the use of technology is irrelevant, because neither party contests 17 the use of ATDS. Osorio, 746 F.3d 1242 at 1249 (defendant argued autodialing was 18 prohibited only when the called party was charged for the call). Plaintiffs assertion that 19 consent is the primary and effectively only factor runs counter to the plain language of the 20 statutory text, which lists consent as one of three required elements. 47 U.S.C. 21 § 227(b)(1)(A); see also Los Angeles Lakers, Inc., 869 F.3d at 804 (listing the required 22 elements for a pleading under the TCPA). 23 3. Plaintiffs’ additional information is insufficient to allege a TCPA claim. 24 In their Response, Plaintiffs make additional allegations to support their TCPA 25 claim. (Doc. 48 at 2). These allegations are not present in their SAC and cannot cure the 26 deficiency in the operative pleading. See Schneider v. Cal. Dept. of Corr., 151 F.3d 1194, 27 1197 n. 1 (9th Cir.1998) (holding that when considering Rule 12(b)(6) dismissal the court 28 cannot “look beyond the complaint to a plaintiff’s moving papers.”) (citing Harrell v. 1 United States, 13 F.3d 232, 236 (7th Cir.1993)). However, the Court will analyze this 2 allegation because it is pivotal to Plaintiffs’ potential leave to amend. 3 Plaintiffs’ assert two claims in their Response: (1) that the presence of a brief pause 4 indicates the use of an automated dialer; (2) that several calls were placed in rapid 5 succession, consistent with predictive dialing. (Doc. 48 at 2). The Supreme Court has held 6 that an automated dialer alone is not the same as the sort of ATDS intended to be prohibited 7 by TCPA. Facebook, Inc. v. Duguid, 592 U.S. 395, 405—07 (2021) (holding that the 8 TCPA does not include equipment that does not use a random or sequential number 9 generator); see also Borden v. eFinancial, LLC, 53 F.4th 1230, 1235 (9th Cir. 2022) 10 (holding that “using a random or sequential number generator to select from a pool of 11 customer-provided phone numbers would not cause the harms contemplated by 12 Congress.”). The Supreme Court held that expanding the definition of ATDS to include 13 any machine that could predictively or automatically dial would inflict the TCPA on 14 ordinary “cell phone owners in the course of commonplace usage, such as speed dialing or 15 sending automated text message responses.” Facebook, 592 U.S. at 406. Plaintiffs’ 16 allegations must therefore include the use of sequential or random number telephone 17 generation. See Borden, 53 F.4th at 1233 (affirming that a pleading must allege the use of 18 a random telephone number generator to plausibly plead a violation of the TCPA). 19 Plaintiffs do not allege the use of random numbers at any point in their SAC. In fact, 20 Plaintiffs’ SAC discredits the assertion that Defendant was calling numbers at random. 21 Upon returning the call, Plaintiffs were informed that Defendant was seeking a specific 22 debt from them. (Doc. 42 at 2). This is more in line with Borden, where the plaintiff 23 provided the defendant with his phone number and then received marketing messages from 24 the defendant. Borden, 53 F.4th at 1232. The plaintiff in Borden contended that the use 25 of random number generator at any point in the call was a violation of the TCPA. Id. at 26 1233. The Borden court rejected that contention noting that “an autodialer must randomly 27 or sequentially generate telephone numbers, not just any number.” Id. The Borden court 28 held that randomly selecting a number from a preproduced list was not a violation of the 1 TCPA. Id. at 1236. Plaintiffs allege even less randomness, only alleging the use of 2 predictive or automatic dialing to recover a particular debt. (Doc. 42 at 2; Doc. 48 at 2). 3 Plaintiffs have failed to sufficiently allege the use of an ATDS, even considering the new 4 allegations presented in their Response. 5 4. Conclusion on the TCPA Claim. 6 Because Plaintiffs do not sufficiently allege the use of an ATDS in their SAC, they 7 cannot maintain their claim under 47 U.S.C. § 227. (Doc. 42 at 2). Plaintiffs have already 8 amended their complaint in an attempt to cure this defect, but have failed to do so. 9 Plaintiffs’ SAC provides evidence that the calls were not random or sequential, but in fact 10 directed at existing customers. The Court concludes that further amendment would be 11 futile and will therefore dismiss the SAC with prejudice. See Webb, 999 F.3d at 1204 12 (affirming dismissal with prejudice when plaintiff is entirely reliant on discovery to allege 13 his claims); see also Jovanovic v. SRP Invs. LLC, No. CV-21-00393-PHX-JJT, 2021 WL 14 4198163, at *4 (D. Ariz. Sept. 15, 2021). 15 IV. Motion to Strike 16 Following Defendant’s Reply to its Motion to Dismiss, Plaintiffs filed a “Response 17 in Opposition to Defendant’s Motion to Dismiss Second Amended Complaint” (Doc. 50). 18 Notwithstanding the filing’s title, Plaintiffs had already filed a Response (Doc. 48) to 19 Defendant’s Motion, and briefing on Defendant’s Motion was complete upon the filing of 20 Defendant’s Reply (Doc. 49). Plaintiffs’ filing was thus an unauthorized sur-reply. 21 Plaintiffs’ Sur-Reply prompted Defendant to file a Motion to Strike Plaintiffs’ 22 improper surreply. The Court agrees that the filing is an improper surreply as no leave was 23 granted to file it. Moten v. U.S. A.F., Bd. for Correction of Mil. Records, 2019 WL 357901, 24 at n.1 (D. Ariz. 2019) (“Neither the local rules of the District of Arizona nor Fed. R. Civ. 25 P. 7 authorize the filing of a surreply without first being granted leave of the Court.”). 26 However, because the Court recognized the filing as an unauthorized surreply, it did not 27 consider the filing in rendering its decision. In consequence, Defendant’s Motion to Strike 28 (Doc. 51) is denied as moot. 1 Accordingly, 2 IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 45) is GRANTED || with prejudice. The Clerk of Court is directed to enter judgment accordingly and close 4||_ this matter. 5 IT IS FURTHER ORDERED that Defendant’s Motion to Strike (Doc. 51) is 6 || DENIED as moot. 7 Dated this 24th day of March, 2026. 8

10 norable'Diang/. Hunfetewa ll United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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