Drake v. Synchrony Bank

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND REUBEN DRAKE # v. * - Civil No. CCB-19-2134 SYNCHRONY BANK * Ske ak oi fe 2 2K 2 2 or 2 ok MEMORANDUM Pro se plaintiff Reuben Drake has filed a complaint against Synchrony Bank alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, ef seg. (TCPA) and the Maryland Telephone Consumer Protection Act, Md. Code Ann., Com. Law § 14-3201, ef seg. (MTCPA) and a state common- law claim for invasion of privacy. The Bank has filed a motion to dismiss, which has been fully briefed.

An essential element of a TCPA and an MTCPA claim is that the defendant has used an automatic telephone dialing system (‘ATDS”). Sprye v. Ace Motor Acceptance Corp., 2017 WL 1684619, at *4 (D.

Md. 2019). Under 47 U.S.C. § 227(a)(1) an ATDS is defined as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator.” See Snow v. General Electrie Co., 2019 WL 2500407, at *5 (E.D.N.C. 2019).

Drake alleges the use of an ATDS (Cplt { 13) but proffers no factual allegations that plausibly support such a claim. Further, while Drake seeks leave to amend, nothing in the proffered affidavit indicates that he could plausibly allege that a “random or sequential number generator” was involved,! On the other hand, the calls may well be computerized, pre-recorded, and dialed repeatedly based on stored telephone numbers.

This case appears to hinge on the definition of an ATDS, as discussed at length in Snow, Snow is currently on appeal to the Fourth Circuit. Snow, 2019 WL 2500407, appeal docketed, No. 19-1724 (July ' Rather it appears the Bank may have been trying to reach an account holder by the name of Amanda Socks. (Cplt □ 15) 11, 2019). Because the appeal in Snow may result in definitive guidance from the Fourth Circuit, the court intends to stay ruling on the motion to dismiss pending the ruling in Snow. A separate Order follows.

/(7/l9 LOL Dat Catherine C. Blake United States District Judge