Betz v. Synchrony Bank

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NA’EEM BETZ,
Plaintiff,
v. Civil Action No. 22-2235 (JEB)
SYNCHRONY BANK,
Defendant.
MEMORANDUM OPINION
This Telephone Consumer Protection Act lawsuit is far from Plaintiff Na’eem Betz’s first
rodeo. A frequent pro se filer, he brings this TCPA action against Synchrony Bank for allegedly
calling him over 80 times using an autodialer and pre-recorded message. Plaintiff filed this
Complaint in July 2022, and he has since amended it twice and withdrawn a third proposed
amendment. Synchrony now moves to dismiss the Second Amended Complaint. The Court will
grant that Motion in part and deny it in part.
I. Background
Random robocalls are undeniably annoying and, in some cases, against the law.
According to his Second Amended Complaint and his attached exhibits, which the Court treats as
true for purposes of the Motion to Dismiss, Synchrony repeatedly called Betz using pre-recorded
voice messages without his consent.
Betz provides a log of phone calls from Synchrony starting on February 20, 2021. See
ECF No. 22-1 (2d Am. Compl.), Exh. A (Phone Log). According to this log, Synchrony called
him approximately once a day to collect on his “alleged debt.” 2d Am. Compl., ¶ 2; see also
Phone Log. These daily calls lasted through May 24 of that year. See Phone Log.
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When he did not answer these calls, Betz received a voicemail that identified the caller as
Synchrony, requested that he return its call, provided contact information, and ended with a
statement saying, “This is a recording.” 2d Am. Compl., Exh. B (Message Transcript). Betz
alleges that he expressly revoked “any and all prior express consent” by telephone on February
26 and 27 and on May 6. See 2d Am. Compl., ¶ 11. On these occasions, he answered the phone
saying, “[P]lease stop calling I revoke any and all prior consent,” and “[y]ou do not have my
consent any longer to harass me with prerecorded messages on my cellular telephone” before
immediately hanging up. Id.
Betz explains that he further revoked his consent when he filed two complaints with the
Consumer Financial Protection Bureau on April 19 and May 21, 2021. On May 25, Synchrony
responded to Betz’s CFPB complaints and stated that the company had a policy to “cease and
desist collection telephone calls once the accountholder has provided [it] with the cease and
desist notification.” Id., Exh. D (Response Letter). The response further stated, “On April 22,
2021, in response to your request submitted through [the CFPB complaint,] we coded this
account to prevent future telephone calls.” Id. Synchrony, however, “[did] not have [a] record of
receiving a cease and desist request from you either in writing or over the telephone prior to our
receipt” of the CFPB complaints. Id.
In total, Betz received 83 calls from Synchrony — 52 prior to April 22 and 31 after
Synchrony “cod[ed]” his account. See 2d Am. Compl., ¶¶ 11, 15. “Upon information and
belief,” Betz alleges that Synchrony made these calls using a dialing system that had “the
capacity to store or call phone numbers using a random or sequential number generator.” Id.,
¶ 18.
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The case has had quite a drawn-out procedural history. Betz filed his Complaint on July
27, 2022. Synchrony then moved to dismiss the Complaint on September 15. See ECF No. 8
(MTD). Rather than respond to Synchrony’s Motion to Dismiss, Betz sought to amend his
Complaint in November. See ECF No. 15 (Mot. to Am. Compl.). The Court granted this Motion
on December 2. See Minute Order of Dec. 2, 2022. Synchrony then moved to dismiss Betz’s
Amended Complaint. See ECF No. 18 (MTD Am. Compl.). Again, Betz chose not to respond to
this Motion and, instead, sought to file another Amended Complaint in February 2023. See ECF
No. 22 (Consent Filing of 2d Am. Compl.). The Court granted this Motion soon after. See
Minute Order on Feb. 6, 2023.
The cycle continued. Synchrony moved to dismiss the Second Amended Complaint. See
ECF No. 23 (MTD 2d Am. Compl.). After requesting multiple extensions of time to respond to
that latest Motion to Dismiss, see ECF Nos. 25, 28 (Mots. Ex. Time), Betz filed a Motion for
Leave to File a Third Amended Complaint. See ECF No. 29 (Mot. to Amend); ECF No. 29-1 (3d
Am. Compl.). Only within the last month did he finally respond to Synchrony’s Motion to
Dismiss. See ECF No. 33 (MTD Opp.). Betz later withdrew his Motion for Leave to File a
Third Amended Complaint. See ECF No. 35 (Notice of Withdrawal). The remaining Motion —
the Motion to Dismiss the Second Amended Complaint — is now ripe.
II. Legal Standard
Defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(6). This
Rule permits a court to dismiss any count of a complaint that fails “to state a claim upon which
relief can be granted.” In evaluating the motion, the court must “treat the complaint’s factual
allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived from
the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)
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(quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (citation omitted). The
Court need not accept as true, however, “a legal conclusion couched as a factual allegation” or an
inference unsupported by facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193
(D.C. Cir. 2006).
This pleading standard is “not meant to impose a great burden upon a plaintiff,” Dura
Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), as a count will survive so long as there is a
“‘reasonably founded hope that the [discovery] process will reveal relevant evidence’ to support
the claim.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting Dura Pharm., 544
U.S. at 347). While “detailed factual allegations” are not necessary to withstand a dismissal
motion, id. at 555, the complaint still “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570).
In other words, a plaintiff must put forth “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. A complaint
may survive even if “recovery is very remote and unlikely” or the veracity of the claims are
“doubtful in fact” if the factual matter alleged in the complaint is “enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555–56.
In evaluating the sufficiency of a plaintiff's complaint under Rule 12(b)(6), the court may
consider “the facts alleged in the complaint, any documents either attached to or incorporated in
the complaint[,] and matters of which [the court] may take judicial notice.” Equal Emp’t
Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
With pro se litigants, the court must consider a complaint “in light of” all filings, including those
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responsive to a motion to dismiss. Brown v. Whole Foods Market, 789 F.3d 146, 152 (D.C. Cir.
2015).
III. Analysis
The Second Amended Complaint contains two counts: violation of the TCPA and
invasion of privacy. The Court analyzes each separately.
1. TCPA
To make out a TCPA claim, a plaintiff must allege that: (1) the defendant called a cellular
telephone number; (2) using an automatic telephone dialing system (ATDS) or a pre-recorded or
artificial voice (PRAV); (3) without the recipient’s prior express consent. See 47 U.S.C.
§ 227(b)(1)(B). An ATDS is defined by the TCPA as equipment that “has the capacity (A) to
store or produce telephone numbers to be called, using a random or sequential number generator;
and (B) to dial such numbers.” Id. § 227(a)(1).
In his Second Amended Complaint, Betz alleges that Synchrony repeatedly called his cell
phone using an ATDS or PRAV without his consent. See 2d Am. Compl., ¶¶ 43–48. He further
explains that he made his lack of consent known numerous times, both verbally when he
answered calls and in writing when he filed a complaint with the CFPB. Id., ¶¶ 11, 13.
Although Betz apparently has withdrawn his contention that Synchrony used an ATDS, see
MTD Opp. at 6, the Court will discuss both ATDS and PRAV in turn.
Where the called party is the intended recipient of a message, an ATDS theory normally
will not apply. An automatic telephone dialing system uses a random or sequential number
generator, and a caller would not use such technology to contact a specific person without a
showing to the contrary. See ACA Int’l v. FCC, 885 F.3d 687, 694 (D.C. Cir. 2018). Betz does
not disagree that Synchrony intentionally called him — albeit with the use of an automated
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system — to collect on a debt. See Response Letter. Other than mentioning that this debt is
“alleged,” Betz does nothing to refute the targeted nature of the calls. See 2d Am. Compl., ¶¶ 2–
3, 13, 15, 31; Response Letter (stating the exact debt Betz owes); see also Facebook, Inc. v.
Duguid, 141 S. Ct. 1163, 1168, 1170 (2021) (ruling for Defendant in TCPA case and
highlighting targeted nature of communications). Betz, consequently, has not sufficiently pled
that Synchrony used an ATDS in calling him.
As a result, Plaintiff’s claim may proceed only if Synchrony used a PRAV without his
prior express consent. There is little dispute that Defendant used a pre-recorded or artificial
voice during these calls. Each voicemail he received contained the exact same message, which
ended by saying, “This is a recording.” The sole question is thus whether Synchrony had Betz’s
prior express consent to receive PRAV calls.
It is true that Plaintiff offers nothing within the Second Amended Complaint to show the
absence of express consent. Yet, “the burden is on the caller to prove that it obtained the
necessary prior express consent.” In the Matter of Rules & Reguls. Implementing the Tel.
Consumer Prot. Act of 1991 (“2015 Decision”), 30 FCC Rcd. 7961, 7990, ¶ 47 (2015) (emphasis
added), set aside on other grounds by ACA Int’l, 885 F.3d at 692; see also In the Matter of Rules
& Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 565, ¶ 10
(2008). At the motion-to-dismiss stage, such consent would have to appear in the Complaint or
be contained in one of the documents attached thereto. That is not the case.
In seeking dismissal, Synchrony instead relies on one purported admission to show that
Betz previously consented to the calls. See ECF No. 34 (Reply to MTD Opp.) at 2–3; 2d Am.
Compl., ¶ 49 (“Plaintiff revoked any prior express consent before the additional (‘31’) telephone
calls with artificial prerecorded messages placed by the Defendant.”). Yet, this assumes too
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much. First, it overlooks the times Betz states he never consented. Id., ¶ 15 (stating Synchrony
called him “without prior express written consent”); id., ¶ 47 (similar). Further, in this
“concession,” Betz does not necessarily admit prior consent but rather underscores his continued
desire to stop receiving calls. The Court, therefore, cannot infer that he previously agreed to
receive these calls. See 2015 Decision, 30 FCC Rcd. at 7990, ¶ 47; see also 47 C.F.R.
§ 64.1200(f)(9) (defining prior express consent to require written agreement meeting certain
requirements).
The Court, accordingly, will grant Synchrony’s Motion to Dismiss this count only in part,
allowing Betz to proceed with his TCPA claim as it relates to Synchrony’s use of a PRAV.
2. Invasion of Privacy
Betz’s second count alleges common-law invasion of privacy. See 2d Am. Compl.,
¶¶ 54–62. Invasion of privacy is not seen as one tort, “but a complex of four, each with distinct
elements and each describing a separate interest capable of being invaded. The four constituent
torts are (1) intrusion upon one’s solitude or seclusion; (2) public disclosure of private facts; (3)
publicity that places one in a false light in the public eye; and (4) appropriating one’s name or
likeness for another’s benefit.” Wolf v. Regardie, 553 A.2d 1213, 1216–17 (D.C. 1989). Betz’s
claim relates to the first, intrusion upon one’s solitude or seclusion. That tort has three elements:
“(1) an invasion or interference by physical intrusion, by use of a defendant’s sense of sight or
hearing, or by use of some other form of investigation or examination; (2) into a place where the
plaintiff has secluded himself, or into his private or secret concerns; (3) that would be highly
offensive to an ordinary, reasonable person.” Id. at 1217 (internal citations omitted). Defendant
does not challenge the first two elements but instead maintains that its calls were not highly
offensive.
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District of Columbia courts have found calls to constitute an invasion of privacy only
“when the telephone calls are repeated with such persistence and frequency as to amount to a
course of hounding the plaintiff that becomes a substantial burden to his existence.” Redshift v.
Shaw, No. 2017 CA 2722, 2018 WL 11397927, at *5 (D.C. Super. Jan. 31, 2018) (quoting
Restatement (Second) of Torts, § 652(B) cmt. d). The Second Amended Complaint offers
nothing to support the claim that an ordinary, reasonable person would find Synchrony’s calls
highly offensive to the extent that they became a substantial burden to his existence.
Synchrony normally called Betz once a day to collect on an alleged debt; what is more,
Betz declined to answer most of the calls. See Phone Log. Even when he did answer, he would
promptly hang up. See 2d Am. Compl., ¶ 12. These calls included no threats or personal
attacks, and at no point does Betz allege that Synchrony called him to the point of “hounding.”
Cf. Redshift, 2018 WL 11397927, at *5 (noting that harassing and bullying calls and texts would
come in at all hours of day and night). Defendant called during normal working hours and
simply asked Betz to return the call. See Phone Log; see also Message Transcript.
Although Betz may allege in conclusory fashion that these calls caused “emotional harm
and distress, embarrassment, humiliation, and other losses,” 2d Am. Compl., ¶ 59, he provides
little detail as to these allegations. The most Betz explains in this regard is that he experienced
“annoyance, waste of time, the use of the telephone power and network bandwidth, and the
intrusion on his telephone that occupied it from receiving legitimate communications.” Id., ¶ 35.
These are not enough.
Again, Betz may not like these phone calls, but they do not amount to an invasion of
privacy. The Court will dismiss this count.
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IV. Conclusion
For these reasons, the Court will grant Defendant’s Motion to Dismiss the Second
Amended Complaint in part and deny it in part. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: May 8, 2023
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