Macdonald v. Brian Gubernick PLLC

Macdonald v. Brian Gubernick PLLC

Opinion

ORDER

Pending before the Court is Defendants Brian Gubernick, PLLC and Brian Gubernick's Motion to Dismiss First Amended Class Action Complaint. (Doc. 70.) Plaintiff, Darren MacDonald, filed an Opposition to Defendants' Motion to Dismiss and Cross-Motion to Amend. (Doc. 75.) Defendants filed a Reply to Plaintiff's opposition and a Response to Plaintiff's Cross-Motion to Amend. (Doc. 80.) Plaintiff filed a Reply in support of his Cross-Motion to Amend. (Doc. 81.) Defendants requested oral argument, but the Court declines to hold oral argument finding that it is unnecessary. See LRCiv 7.2(f). The Court has reviewed the pleadings and will deny [*2]  Defendants' Motion to Dismiss and grant Plaintiff's Cross-Motion to Amend.

I. BACKGROUND

Plaintiff filed this class action suit against Defendants alleging that Defendants violated the Telephone Consumer Protection Act ("TCPA") by making unsolicited, autodialed calls to consumers. (Doc. 29.) Plaintiff's First Amended Complaint ("FAC") alleges that on January 4, 2018, Plaintiff received a call on his cell phone from Christine Hotchkin, an agent of Defendants' business. (Id. ¶ 34.) The call was made using a "Mojo Dialer based on a lead [Defendants' business] provided to Hotchkin." (Id. ¶ 35.) When Plaintiff answered the call, "he noticed that it began with a pause, which typically indicates the use of an autodialer." (Id. ¶ 36.) Hotchkin was calling to offer real estate brokerage services to Plaintiff. (Id. ¶ 37.) Plaintiff told Hotchkin that he was not interested and that he wanted his number removed from her list. (Id. ¶ 38.) Plaintiff had not consented to receive calls from Defendants. (Id. ¶ 39.) Plaintiff alleges, that calls were made to him and other class members "using equipment that, upon information and belief, had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator." [*3]  (Id. ¶ 50.)

On March 9, 2021, the Court granted Defendants' request to stay proceedings in this case until the U.S. Supreme Court issued a ruling in Facebook, Inc. v. Duguid. (Doc. 69.) The Supreme Court issued an opinion in that case on April 1, 2021. See Facebook, Inc. v. Duguid, 141 S.Ct. 1163, 209 L. Ed. 2d 272 (2021). Shortly after the Supreme Court issued its opinion, Defendants filed this Motion to Dismiss contending that Plaintiff's FAC must be dismissed because Plaintiff did not plead facts that the Mojo Dialer uses a random or sequential number generator. (Doc. 70 at 2.)

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