Horton v. Molina Healthcare of Texas Inc et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LUCAS HORTON, 	§
Plaintiff, 	§
§
v. 	§ 	No. 3:25-CV-1206-X-BW
§
MOLINA HEALTHCARE OF 	§
TEXAS, INC., et al., 	§
Defendants. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant Molina Healthcare of Texas, Inc.’s (“Molina”)
Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), filed on
June 13, 2025. (Dkt. No. 5.) Also before the Court is Plaintiff Lucas Horton’s
Motion for Hearing. (Dkt. No. 11.) Pursuant to 28 U.S.C. § 636(b) and Special
Order No. 3-251, this case is referred to the undersigned United States magistrate
judge for pretrial management, which includes making findings and a recommended
disposition when appropriate. (Dkt. No. 1.)
Based on the relevant filings and applicable law, the undersigned recommends
that Molina’s motion to dismiss (Dkt. No. 5) be GRANTED, and Horton’s motion
for hearing (Dkt. No. 11) be DENIED.
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I. BACKGROUND
A. 	Procedural Background
On May 13, 2025, Horton filed his pro se complaint against Molina and “John
Doe Company” alleging purported violations of the Telephone Consumer Protection
Act (“TCPA”), 47 U.S.C. § 227, et seq., and derivative Texas state law claims based
on the alleged TCPA violations. (Dkt. No. 3 (Complaint (“Compl.”).) Horton
asserts five causes of action: (1) violation of TCPA, 47 U.S.C. § 227(b)(1)(A);
(2) violation of TCPA, 47 U.S.C. § 227(c)(3)(F); (3) failure to maintain written
telemarketing policy in violation of 47 C.F.R. § 1200(d)(1); (4) violation of Section
305.053 of the Texas Business and Commerce Code; and (5) failure to provide
identifying information in violation of 47 C.F.R. § 64.1200(d)(4). (See Compl. at
ECF p. 7–9.)
Molina filed its motion to dismiss on June 13, 2025, generally arguing that
Horton’s allegations do not plausibly allege the violation of any provision in the
TCPA, including failing to adequately allege the use of an ATDS, failing to allege
that two or more solicitations occurred, and failing to allege that Molina, or someone
on its behalf, sent the violative messages. (See generally Dkt. No. 5 (“Motion”
(“Mot.”).) Accordingly, argues Molina, Horton has failed to state a claim and all
causes of action asserted against Molina should be dismissed. (Id.) Horton filed a
response on July 3, 2025 (Dkt. No. 9 (“Resp.”)), and Molina filed a reply on July 17,
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2025 (Dkt. No. 10 (“Reply”).) Accordingly, Molina’s motion to dismiss (Dkt. No. 5)
is ripe for consideration.
Then, on December 10, 2025, Horton filed a motion for hearing wherein he
requests a hearing to compel Molina to issue him a premium refund for the insurance
policy he purchased in the healthcare marketplace, allegedly as a result of “illegal
robocalls.” (Dkt. No. 11.) Molina filed a response on December 31, 2025 (Dkt. No.
12), to which Horton filed a reply (Dkt. No. 13) and appendix (Dkt. No. 14) on the
same date. Then, on January 21, 2026, well after the 14-day deadline to file a reply
brief, see N.D. Tex. L. Civ. R. 7.1(f), Horton filed an additional appendix in support
of his request for a refund. 	(See Dkt. No. 15.) In any event, Horton’s motion for
hearing (Dkt. No. 11) is likewise ripe for consideration.
B. 	Factual Background
The lawsuit arises out of various unsolicited text messages Horton claims that
Molina, or its agent, John Doe Company, sent to him. (See generally Compl.)
Horton alleges that Molina and John Doe Company acted improperly by texting his
number, which is listed on the National Do Not Call List,1 with an automatic
telephone dialing machine (“ATDS”)2 and without his consent and without proper
1 As explained further below, the TCPA contains a provision that “prohibits
telemarketers from calling residential phones numbers listed on the National Do-Not-Call
Registry to solicit business.” Pinn v. Quintessa, LLC, No. 3:24-CV-3090-B, 2025 WL
2201050, at *2 (N.D. Tex. Aug. 1, 2025) (citing 47 C.F.R. § 64.1200(c)(2)).
2 An ATDS is a piece of equipment with 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.” 47 U.S.C. § 227(a).
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sender-identifying information. (See id.) 	He also alleges that Molina was required to
provide the company’s internal Do Not Call policy upon demand but failed to do so.
(Compl. at ECF p. 7–8.)
Horton alleges the following facts in his complaint. Horton is the owner of a
residential cellphone number ending in 3341, which he occasionally uses for business
purposes, but it is not registered to his business. (Compl. ¶ 10.) According to
Horton, this telephone number has been registered on the National DNC list since
2011. (Compl. ¶ 4.) On November 21, 2024, Horton alleges he received a text
message from telephone number 888-884-3286 stating that “open enrollment has
begun and to call 888-408-9110.” (Id. ¶ 13.) 	He alleges that he received two similar
text messages from telephone number 888-919-1795 on Jan 7, 2025, and on Jan 15,
2025, both claiming that Horton’s 2025 healthcare plan may require attention and to
call 888-201-0773. (Id. ¶ 12.)
Horton next alleges that on April 1, 2025, he “called 888-201-0773 and bought
a Molina policy with a payment confirmation # of 52762888 for $39.70.” He alleges
the policy was sold by a man named Julien Rivera, whose email address was
julien@coverageassociate.com, which Horton represents is not a valid website
domain. (Id. ¶¶ 18-19.) According to Horton, Mr. Rivera only offered him a Molina
health plan; did not offer any of the other health plans sold on the healthcare
marketplace; and did not ask the necessary questions for purchasing insurance on the
marketplace (such as household income). (Id. ¶ 21.) Horton further asserts that the
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subsidy he was given was incorrect, and if he kept the insurance, he would have to
repay the subsidy when he filed his taxes. (Id.) Therefore, posits Horton, Mr. Rivera
“was obviously just trying to sell a Molina healthcare plan at all costs.” (Id.) “After
purchasing the policy, [Horton] received an email from Mr. Rivera with a copy of his
receipt from Molina.” (Id. ¶ 22.)
Horton then alleges that on September 11, 2025, he received a text message
from telephone number 833-591-0256, stating that his healthcare policy was eligible
for renewal and to call 888-452-1606. (Id. ¶ 14.) 	September 11, 2025, is a date after
the date Horton filed his complaint, which Horton does not explain, even though
Molina points out this discrepancy in its motion to dismiss. (See generally Resp.)
According to Horton, he determined that all the texts were sent using an ATDS
based on their “generic content;” the number of messages sent over a short period of
time, including twice in one day; and the fact that “there was no relationship
between the parties whatsoever,” and the text messages are either “not monitored or
are fake numbers.” (Compl. ¶ 15.)
He further asserts that all the texts involved solicitations about open
enrollment or some other offer about health insurance and because “[t]here was no
identifying information in the texts as required by the TCPA, . . . he was forced to
purchase whatever was being sold to identify who was behind the texts.” (Id. ¶¶ 16-
17.) Horton contends he texted 833-591-0256 (the number from which he alleges he
received a text on September 11, 2025, a date that had not yet occurred) and received
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an auto reply from someone who sells “homes on Liberty Point.” (Id.) Horton
further alleges that when he called the numbers 888-408-9110 and 888-452-1606, it
was answered by Mr. Rivera and someone who sounded like they were in the same
call center.” (Id. ¶ 12.) The 9110 number appears to derive from the text message
Horton alleges he received in November 2024 (see id. ¶ 13), while the 1606 number
appears to derive from the text messages Horton alleges he received in September
2025—again, a date that had not occurred when Horton filed his complaint (see id.
¶ 14).
In sum, Horton alleges that all the texts at issue were sent in violation of the
TCPA by Molina or someone on its behalf, and he seeks injunctive relief to cease all
unsolicited call activity, statutory damages, costs, and pre- and post-judgment
interest. (See Compl. ¶¶ 24-27.)
II. LEGAL STANDARDS
A. 	Rule 12(b)(6)
In deciding a motion to dismiss for failure to state a claim on which relief may
be granted under Rule 12(b)(6), the Court “accepts all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205-06 (5th Cir. 2007). Such a motion therefore is “not meant
to resolve disputed facts or test the merits of a lawsuit” and “instead must show that,
even in the plaintiff’s best-case scenario, the complaint does not state a plausible case
for relief.” Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 581 (5th Cir. 2020). A
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plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts
with enough specificity “to raise a right to relief above the speculative level,” id. at
555. At this stage, the court does not evaluate the plaintiff’s likelihood of success.
See Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 385 (5th Cir. 2017).
Rather, it only determines whether the plaintiff has stated a claim upon which relief
can be granted. See id.
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. So, “[w]here a complaint
pleads facts that are merely consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility of entitlement to relief.” Id. (quoting
Twombly, 550 U.S. at 557 (cleaned up); see also Bryant v. Ditech Fin., L.L.C., No. 23-
10416, 2024 WL 890122, at *3 (5th Cir. Mar. 1, 2024) (unpublished) (“[J]ust as
plaintiffs cannot state a claim using speculation, defendants cannot defeat plausible
inferences using speculation.”).
Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed factual
allegations, but it does require that a plaintiff allege more than labels and
conclusions. And, while a court must accept a plaintiff’s factual allegations as true, it
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is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In fact, “the court does
not ‘presume true a number of categories of statements, including,’” in addition to
legal conclusions, “‘mere labels; threadbare recitals of the elements of a cause of
action; conclusory statements; and naked assertions devoid of further factual
enhancement.’” Armstrong v. Ashley, 60 F.4th 262, 269 (5th Cir. 2023) (quoting
Harmon v. City of Arlington, Tex., 16 F.4th 1159, 1162-63 (5th Cir. 2021)). So, “to
survive a motion to dismiss” under Twombly and Iqbal, plaintiffs must “plead facts
sufficient to show” that the claims asserted have “substantive plausibility” by stating
“simply, concisely, and directly events” that they contend entitle them to relief.
Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (citing Fed. R. Civ. P. 8(a)(2)-
(3), (d)(1), (e)).
In ruling on a Rule 12(b)(6) motion, the court limits its review to the face of
the pleadings. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “Pleadings”
for purposes of a Rule 12(b)(6) motion include attachments to the complaint. In re
Katrina Canal Breaches Litig., 495 F.3d at 205; Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 498 (5th Cir. 2000); see also Gill as Next Friend of K.C.R. v. Judd, 941
F.3d 504, 511 (11th Cir. 2019) (“The Civil Rules provide that an attachment to a
complaint generally becomes ‘part of the pleading for all purposes,’ including for
ruling on a motion to dismiss.” (quoting Fed. R. Civ. P. 10(c); citations omitted)).
And “[w]hen ‘an allegation is contradicted by the contents of an exhibit attached to
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the pleading, then indeed the exhibit and not the allegation controls.’” Rogers v. City
of Yoakrum, 660 F. App’x 279, 285 n.6 (5th Cir. 2016) (quoting United States ex rel.
Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004) (citing, in turn,
Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir. 1940))).
Similarly, documents “attache[d] to a motion to dismiss are considered part of
the pleadings, if they are referred to in the plaintiff's complaint and are central to [his]
claim[s].” Collins, 224 F.3d at 498-99 (quotations omitted); accord Benchmark
Electronics, Inc. v. J.M. Huber Corp., 343 F.3d 719, 725 (5th Cir.2003). Attachments
falling under these categories may be properly considered without converting the
motion to dismiss into a motion for summary judgment. See Benchmark Electronics,
343 F.3d at 725.
A plaintiff may not amend his allegations through a response to a motion to
dismiss, Fed. R. Civ. P. 8(a), but leave to amend must be granted freely “when
justice so requires,” Fed. R. Civ. P. 15(a)(2). One reason to deny amendment is
futility: “If the complaint, as amended, would be subject to dismissal, then
amendment is futile and the district court [is] within its discretion to deny leave to
amend.” Martinez v. Nueces Cnty., Tex., 71 F.4th 385, 391 (5th Cir. 2023) (quoting
Ariyan, Inc. v. Sewage & Water Bd. of New Orleans, 29 F.4th 226, 229 (5th Cir. 2022)).
“Pro se complaints receive a ‘liberal construction.’ Even so, ‘mere conclusory
allegations on a critical issue are insufficient.’” Brown v. Tarrant Cnty., Tex., 985 F.3d
489, 494 (5th Cir. 2021) (quoting Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018);
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United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989)). And “liberal
construction does not require that the Court . . . create causes of action where there
are none.” Smith v. CVS Caremark Corp., No. 3:12-CV-2465-B, 2013 WL 2291886, at
*8 (N.D. Tex. May 23, 2013).
B. 	TCPA
The TCPA makes it unlawful to use an ATDS or a prerecorded or artificial
voice to message a cellular phone without the called party’s prior express consent.
47 U.S.C. § 227(b)(1)(A). As the Supreme Court explained in Facebook, Inc. v.
Duguid, an ATDS “must have the capacity either to store a telephone number using a
random or sequential generator or to produce a telephone number using a random or
sequential number generator.” 592 U.S. 395, 399 (2021). A private right of action in
both federal and Texas state court is afforded to individuals or entities who have
received calls in violation of 47 U.S.C. § 227(b). 47 U.S.C. § 227(b)(3); Tex. Bus. &
Com. Code § 305.053(a); see also Shields v. Gawk Inc., No. 3:18-CV-150, 2019 WL
1787781, at *1 (S.D. Tex. Apr. 24, 2019).
Courts recognize the difficulty a plaintiff faces in establishing that an ATDS
was used prior to discovery, thus, various inferences are afforded in a plaintiff’s
favor. Hunsinger v. Alpha Cash Buyers, LLC, No. 3:21-CV-1598-D, 2022 WL 562761,
at *3 (N.D. Tex. Feb. 24, 2022). Plaintiffs can “rely on indirect allegations” to
support claims that an ATDS was used, such as identical messages being sent to
multiple parties at once, use of an SMS short code in sending the message, and
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“dead-air time” during a call. Id. at *4. But mere allegations of ATDS usage,
without more, are insufficient to sustain a claim under the TCPA. Id. at *3.
Further, any entity or individual initiating pre-recorded or artificial voice calls
for telemarketing purposes “must have a written policy, available upon demand, for
maintaining a do-not-call list.” 47 C.F.R. § 64.1200(d)(1). The entity or individual
must also provide the called person with the name of the individual caller and the
name of the individual or entity on whose behalf the call is being made, as well as
contact information. 47 C.F.R. § 64.1200(d)(4). District courts in the Fifth Circuit
have extended the private right of action under 47 U.S.C. § 227(c) to violations of 47
C.F.R. § 64.1200(d). Powers v. One Technologies, LLC, No. 3:21-CV-2091, 2022 WL
2992881, at *2 (N.D. Tex. July 28, 2022).
Moreover, the TCPA “regulates calling practices to protect rights of privacy of
those registered on the DNC list.” Horton v. MultiPlan, Inc., No. 3:23-CV-02098-S-
BT, 2024 WL 3380236, at *5 (N.D. Tex. June 7, 2024). The Act grants the Federal
Communications Commission (“FCC”) the power to implement regulations
enforcing these protections. Id. at *1. One of these regulations “prohibits
telemarketers from calling residential phones numbers listed on the National Do-
Not-Call Registry to solicit business.” Pinn v. Quintessa, LLC, No. 3:24-CV-3090-B,
2025 WL 2201050, at *2 (N.D. Tex. Aug. 1, 2025) (citing 47 C.F.R. § 64.1200(c)(2)).
A defendant can be liable directly or vicariously if acting through a third party with
which the defendant has an agency relationship. Id. For a private right of action
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under this regulation, the individual or entity must have received more than one
telephone call in violation within a 12-month period by or on behalf of an entity. Id.
To determine whether the principal is liable for the agency action, courts have
used “traditional notions of vicarious liability.” Powers, 2022 WL 2992881, at *2.
To prove an agency relationship exists, the principal must have the right to assign the
task to the agent and control the means by which the task is carried out. Cunningham
v. Daybreak Solar Power, LLC, No. 4-22-CV-00599-O, 2023 WL 3985245, at *3 (N.D.
Tex. June 13, 2023).
Liability under the TCPA is exempted when the caller has an “established
business relationship” with the called party. Starling v. J Wales Home Solutions LLC,
No 4:21-CV-01261-O, 2022 WL 1156021, at *4 (N.D. Tex. Apr. 19, 2022) (citing 47
U.S.C. § 227(a)(4)). “An ‘established business relationship’ is defined as ‘a prior
existing relationship formed by a voluntary two-way communication . . . on the basis
of the subscriber’s purchase or transaction with the entity within the
eighteen . . . months immediately preceding the date of the telephone call.’” Id.
(quoting 47 C.F.R. § 64.1200(f)). It can also be formed when the subscriber inquires
into or applies for products or services the entity offers within the three months
before the call. Id. (citing 47 C.F.R. § 64.1200(f)). An established business
relationship can be terminated with a “do not call” request. Id. (citing 47 C.F.R. §
64.1200(f)(5)(i)).
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Section 305.053 of the Texas Business and Commerce Code also establishes a
cause of action under state law that allows a person to file suit in state court against a
party that violates the TCPA. See Tex. Bus. & Com. Code § 305.053(a). The Texas
statute is coextensive with the TCPA. Shields, 2019 WL 1787781, at *5.
III. ANALYSIS
A. 	Horton does not plausibly allege that Molina or its proxy sent the alleged
messages.
In his first cause of action, Horton alleges that, “[u]sing an ATDS, the
Defendants, texted the Plaintiff without the Plaintiff’s consent, knowledge, and for
its benefit without having any consent to do so from the Plaintiff.” (Compl. at ECF
p. 7.) Horton alleges that he received a single text message from 866-884-3286 on
November 21, 2024, with a message saying that open enrollment had begun and to
call 888-408-9110, and that he later received two messages from 888-919-1795, about
two months later, on January 7 and 15, 2025, both purportedly stating that
“[Horton’s] 2025 healthcare plan may require attention and to call 888-201-0773.”
(Compl. ¶¶ 12-13.) Horton does not allege that any of these numbers belong to
Molina. (See id.)
Horton next alleges that he received a single text message on September 11,
2025 (after the date he filed his complaint) from 833-591-0256 “saying that your
healthcare policy was eligible for renewal and to call 888-452-1606.” (Id. ¶ 14.) Here
again, Horton does not allege that either number belongs to Molina. (See id.)
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Instead, Horton avers that 833-591-0256 belongs to an individual who sells “homes
on Liberty Point.” (Id. ¶ 15.)
Then, Horton alleges that on April 1, 2025, he called 888-201-0773 (from the
January 2025 text messages) and bought a Molina policy from “Julien Rivera” at
“julien@coverageassociate.com.” (Id. ¶¶ 18-19.) He also alleges he called 888-408-
9110 (from the November 2024 text message) and 888-452-1606 (from the alleged
September 2025 “future” message), which were answered “by Mr. Rivera and
someone who sounded like they were in the same call center.” (Id. ¶ 20.) Finally,
Horton alleges that Mr. Rivera was “obviously” only selling a Molina plan because
he did not offer any of the other plans sold on the marketplace. (Id. ¶ 20.)
But these bare allegations do not sufficiently allege that Molina or an entity
acting on its behalf sent the alleged improper messages, as required to allege a
violation of TCPA section 227(b)(1). Indeed, the allegations demonstrate that two
entirely separate companies from Molina—one purportedly selling “Homes on
Liberty Point” and the other employing an individual from “coverage associate.”
(See Compl. ¶¶ 15, 19.) No allegations connect those companies or individuals to
Molina—aside from the bare assertion that Horton later purchased a Molina policy.
(See Compl. ¶¶ 12-22.) But the mere fact that Horton subsequently acquired a
Molina healthcare plan (from an entity other than Molina) is insufficient to support
an allegation that the sender of the text message was acting as Molina’s agent or that
Molina should be held vicariously liable for the sender’s conduct.
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In response, Horton argues that his claim against Molina is supported by
factual allegations that Molina hired a company to market its policies; this company
sent numerous texts to Horton in violation of the TCPA; and that Horton ultimately
bought a Molina healthcare policy as a result of these texts. (See Resp. at ECF p. 5.)
But these general, conclusory allegations are not supported by any factual content,
and therefore, there is no basis to accept them as true. For these reasons, the
undersigned concludes that Horton failed to allege sufficient facts illustrating that
Molina or its proxy sent Horton the text messages. See Horton v. Advantage One
Brokers Corp., No. 3:22-CV-02474-B-BT, 2023 WL 4188291, at *4 (N.D. Tex. June 5,
2023), adopted, 2023 WL 4188046 (N.D. Tex. June 26, 2023) (finding that plaintiff's
allegations that the offending calls “were made by, on behalf of, for the benefit of,
with the knowledge and approval of the Defendant” does not provide a “factual
basis” for finding defendant directly or vicariously liable for violating the TCPA).
Additionally, because Horton fails to plausibly allege that Molina or its proxy
sent the offending text messages, his claim that Molina failed to identify itself as
required under 47 C.F.R. § 64.1200(d)(4) likewise fails. (See Compl. at ECF p. 8-9.)
In his fifth cause of action, Horton claims that “Defendants did not fulfill [the
requirement to identify the sender], which is why the Plaintiff had to click the link
and call to buy a policy.” (See id. at ECF p. 9.) As an initial matter, Horton’s
statement that he had to both click a link and call to buy the policy is both
implausible on its face and contradictory. (See Compl. ¶¶ 12-14 (prior statements
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asserting that the text messages advised him to call about open enrollment or to
renew his healthcare policy, not to click a link; ¶ 18 (prior statement that on April 1,
2025, Horton “called 888-201-0773 and bought a Molina policy”) (emphasis added).)
And although Horton admits that “[t]he bit in the complaint about having to ‘click a
link’ to buy the policy is a typo and remnant of an older complaint (see Resp. at ECF
p, 12), Horton’s failure to plausibly allege that Molina sent text messages without
identifying itself is fatal to his fifth cause of action.
B. 	Horton does not plausibly allege that Molina used an ATDS in violation of
TCPA section 227(b)(1)(A).
Horton fails to plausibly allege the use of an ATDS. As previously noted,
courts have permitted plaintiffs to infer the use of an ATDS through “indirect
allegations” such as “generic messages, identical messages sent to multiple parties at
the same time, [ ] the use of an SMS short code to send the message,” and “‘dead-air
time’ during the call.” See Hunsinger, 2022 WL 562761, at *4 (citing Schley v. One
Planet Ops Inc., 445 F. Supp. 3d 454, 459-60 (N.D. Cal. 2020); Cunningham v.
Nationwide Sec. Solutions, Inc., No. 3:17-CV-00337-M, 2017 WL 10486988, at *3
(N.D. Tex. Nov. 2, 2017)). But bare allegations of ATDS usage, without more, are
insufficient to sustain a claim under the TCPA. Id. at *3. Such is the case here—
Plaintiff’s allegations fail to plausibly plead the use of an ATDS.
Horton asserts the following inferential facts to support his allegation that
Molina used an ATDS:
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• 	The generic content of the messages – the almost identical texts
do not address the Plaintiff by name so it can be sent to
thousands of people at once without having to customize each
message.
• 	That there was no relationship between the parties.
• 	That incoming text messages are not monitored or are fake
numbers. Plaintiff texted 833-591-0256 and received an auto
reply from someone who sells “homes on Liberty Point.”
• 	The number of texts sent over such a short time period, once
even twice in 1 day.
(Compl. ¶ 15.)
These allegations do not establish the pleading requirement that a random or
sequential number generator was used, as the Supreme Court mandated in Facebook,
Inc. 	See 592 U.S. at 399. First, there is no allegation regarding use of a short code, a
common complaint for TCPA plaintiffs alleging the use of a machine having the
capacity to randomly or sequentially generate numbers to dial. See Hunsinger, 2022
WL 562761, at *5 (“The use of a short [as opposed to a long code] suggests the use of
an ATDS. Although the use of a long code does not preclude the use of an ATDS, it
does not support an inference that an ATDS was used either.”) (internal quotations
omitted).) Horton appears to argue that any phone number or messaging device
(long codes, RCS, or MMS platforms) could be used by an ATDS, and thus his
allegations should be taken as sufficient. (See Resp. at ECF at 6-7). 	But if that were
sufficient, there would be no meaningful distinction between a plausible ATDS
allegation and mere speculation. “Simply alleging the use of an ATDS, without
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more is insufficient to sustain a TCPA claim.” Cunningham, 2017 WL 10486988, at
*2; see also Hunsinger, 2022 WL 562761, at *5.
Second, while Horton complains of the “generic” content of the messages, he
provides a screenshot of only one of the purported messages (see Dkt. No. 9-1) which,
by itself, does not support Horton’s claim regarding the “almost identical” nature of
the messages. See Horton v. National Republican Senatorial Comm., No. 3:22-CV-1000-
G-BK, 2023 WL 372066, at *5 (N.D. Tex. Jan. 23, 2023) (dismissing Horton’s
TCPA complaint in part because he “did not provide a thorough description of what
the messages contained nor a copy of the messages in his first amended complaint”).
Just the opposite here, Horton highlights significant differences between the
messages and the context in which they were sent. The first (singular) message on
November 21, 2024 merely stated, “that open enrollment has begun.” The second
messages from January 2025 “claimed that the Plaintiff’s 2025 healthcare plan may
require attention.” Those are very different messages, with the January messages
suggesting an existing healthcare plan needing attention. Finally, the alleged not-yet-
occurring message from September 2025 states his healthcare policy was/is eligible
for renewal—again suggesting an existing policy, but also different from the prior
messages. 	Thus, there is nothing “identical” about these messages. See Hunsinger,
2022 WL 562761, at *5 (stating that “the context in which they were sent, and the
fact that the text messages were sent from an SMS long code all fail to support a
reasonable inference that Alpha Cash used an ATDS to send the text messages”).
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Third, while Horton alleges “[t]hat there was no relationship between the
parties”—presumably referring to “Defendants” globally—two of the three messages
reasonably suggest an existing healthcare plan, and thus an existing relationship
between Horton and the messenger. See Hunsinger, 2022 WL 562761, at *5 (rejecting
plaintiff’s contention that an ATDS was used where “the contents of the text
messages suggest that they were sent with the purposes of following up on the prior
telephonic interactions and discussing a potential transaction between Alpha Cash
and Hunsinger”). Horton admits in his response that he had a Molina insurance
policy that ended in 2018. (See Resp. at ECF p. 8.) He argues, however, that this is
“far too long ago for a ‘preexisting business relationship’ claim to hold water.” (Id.)
While it is true that a business relationship with Molina in 2018 is not within 18
months of the alleged messages in the present complaint, see Starling, 2022 WL
1156021, at *4 (citing 47 U.S.C. § 227(a)(4)), this new admission directly contradicts
Horton’s allegation that “[p]rior to receiving the above-referenced texts, [he] had no
relationship with Defendants.” (Compl. ¶ 23.) Therefore, the Court is not obligated
to accept these inconsistencies as true. See Carson Optical Inc. v. eBay Inc., 202 F.
Supp. 3d 247, 255 (E.D.N.Y. 2016) (“Where [a] plaintiff’s own pleadings are
internally inconsistent, a court is neither obligated to reconcile nor accept the
contradictory allegations in the pleadings as true in deciding a motion to dismiss.”);
see also Mora v. Univ. of Texas Sw. Medical Ctr., 469 F. App’x 295, 299 (5th Cir. 2012)
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(plaintiff’s allegations were “contradicted by the other facts alleged in the complaint,
making the claim implausible on its face”).
Fourth, Horton asserts that he received an “auto reply” from one of the
numbers belonging to “someone who sells, ‘homes on Liberty Point,’” which is
evidence of an ATDS. (Compl. ¶ 15.) Horton does not describe what he means by
“auto reply” or why a number belonging to someone who sells “homes on Liberty
Point” demonstrates proof that “Defendants” used an ATDS to try to sell him a
Molina insurance plan. Furthermore, the fact that Horton received a response
undermines his contention that the number was somehow “not monitored” or
“fake.” Horton does not explain how receipt of a responsive message demonstrates a
fake number.
Fifth, Horton infers the use of an ATDS based on “[t]he number of texts sent
over such a short time period, once even twice in 1 day.” (Compl. ¶ 15.) As an
initial matter, Horton’s complaint does not allege that he received multiple messages
on the same day. The closest he comes is reference to being messaged “twice” on
January 7 and January 15, 2025—which could be construed as twice each on
January 7 and January 15 or one message on each day. (Compl. ¶¶ 12-13.) Further,
considering the distinct purpose of each message—the first in November 2024
notifying him of open enrollment, the January 2025 messages asking for his attention
to his existing healthcare plan, and a third message in September 2025 (after he filed
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his lawsuit) requesting renewal—the messages are neither identical nor so frequent or
closely spaced as to suggest use of an ATDS.
Finally, Horton does not identify or even attempt to allege that multiple
parties received identical messages at the same time. See Hunsinger, 2022 WL
562761, at *4 (citing Schley, 445 F. Supp. 3d at 459-60; Cunningham, 2017 WL
10486988, at *3). Here, Horton alleges three messages, at least two of which
concerned his current health plan, and nothing in his allegations suggest en masse
messaging using a random or sequential number generator.
Horton cites Callier v. Multiplan, Inc. to argue that he need not offer any
allegations supporting the use of an ATDS at the pleading stage. (See Resp. at ECF
p. 9 (citing Callier v. Multiplan, Inc., No. EP-20-CV-00318-FM, 2021 WL 8053527, at
*18 (W.D. Tex. Aug. 26, 2021) (“The court does not read Facebook to require TCPA
plaintiffs to plead “dead-airtime.”)).) But Callier is easily distinguishable. In Callier,
the plaintiff alleged that he had received several calls from a spoofed number, that he
had received nine calls during a 14-month period, and that there were prerecorded
messages sent en masse. See id. at *2. And although, Horton asserts that because his
Molina healthcare policy ended in 2018, this is “more evidence of mass texts sent out
to random numbers using ATDS” (Resp. at ECF p. 8), this assertion is mere
speculation and does not plausibly allege that Molina sent the text messages or infer
the use of an ATDS. Accordingly, even construing the allegations in the light most
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favorable to Horton, the allegations do not plausibly suggest that an ATDS was used.
See Facebook, Inc., 592 U.S. at 399.
C. 	Horton does not allege two or more “telephone solicitations” as required to
state a claim for violation of Section 227(c)(3)(F) of the TCPA.
In his second cause of action, Plaintiff alleges that his number “has been on
the National Do Not Call List since 2011 because he does not want to be called or
texted by entities who do not have his permission,” and that, “[a]s a result of the
texts sent by the Defendants, the Plaintiff is entitled to recover $500 in a civil fine for
each offense under 227(c)(3)(5)(B).”3 (Compl. at ECF p. 7.)
47 U.S.C. § 227(c)(3)(F) provides for the establishment of regulations
“prohibit[ing] any person from making or transmitting a telephone solicitation to the
telephone number of any subscriber included in such database.” 47 U.S.C.
§ 227(c)(3)(F). The corresponding regulations define “telephone solicitation” to
mean “the initiation of a telephone call or message for the purpose of encouraging
the purchase or rental of, or investment in, property, goods, or services . . . but does
not include a call or message (i) [t]o any person with that person’s prior express
invitation or permission [or] (ii) [t]o any person with whom the caller has an
established business relationship.” See 47 C.F.R. § 64.1200(f)(15). This definition
3 The undersigned believes Horton means to refer to “227(c)(5)(B),” the section of the
statute that provides a private right of action to any person who has received more than one
telephone call within any 12-month period by or on behalf of the same entity in violation of
the regulations prescribed under this subsection, if otherwise permitted by law. 47 U.S.C.
§ 227(c)(5)(B). Section 227(c)(5)(B) does not itself provide for a substantive cause of action;
rather, it requires an alleged violation of the “regulations prescribed under this subsection.”
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matches the definition of “telephone solicitation” found in 47 U.S.C. § 227(a)(4).
Accordingly, the undersigned construes Horton’s second cause of action as alleging
that Molina sent at least two “telephone solicitations” to his number while it was
registered on the National Do Not Call List. Horton’s allegations, however, fail to
plausibly allege such a claim.
While Horton contends that he received three messages in a 12-month period
(with the fourth message allegedly received at a date that had not yet occurred), all
but one message refers to an existing healthcare plan—undermining any inference
that the message came from a party with whom Horton lacked a prior relationship.
Further, the January 2025 messages merely state that his healthcare plan needed
attention, and therefore, they do not constitute a message sent “for the purpose of
encouraging the purchase or rental of, or investment in, property, goods, or
services.” See 47 C.F.R. § 64.1200(f)(15). There is no allegation that these calls
requested Horton to purchase anything at all. See National Republican Senatorial
Comm., 2023 WL 372066, at *5 (stating Horton “did not state that the NRSC
promoted the sale of its products”); see also An Phan v. Agoda Co. Pte. Ltd., 351 F.
Supp. 3d 1257, 1265 (N.D. Cal. 2018) (dismissing plaintiff’s TCPA claims and
finding that the messages did not qualify as advertising or telemarketing because they
were sent as part of an ongoing business transaction); Aderhold v. Car2go N.A., LLC,
No. C13-489RAJ, 2014 WL 794802, at *6-9 (W.D. Wash. Feb. 27, 2014) (granting
defendant’s motion for judgment on the pleadings because the text messages were
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sent to complete the plaintiff’s registration process). The alleged September 2025
message similarly refers to a renewal of his existing healthcare plan—again
suggesting a prior relationship. (See Compl. ¶ 14.)
Accordingly, even reading the complaint in the light most favorable to
Horton, he alleges at most only one message received in a 12-month period that
could even possibly be contended to constitute a “telephone solicitation” as
defined—the November 2024 message stating that “open enrollment has begun.”
(See id. ¶¶ 13-14.) But given the separate messages all inferring an existing
relationship, even this allegation does not plausibly plead a “telephone solicitation”
as required to state a claim under the TCPA’s implementing regulations.
Because Horton has not plausibly alleged that he received more than one
telephone solicitation, he fails to state a claim, and his second cause of action should
be dismissed for this additional reason.
D. 	Horton does not plausibly allege that Molina violated 47 C.F.R.
§ 64.1200(d)(1).
In his third cause of action titled, “Violation of § 64.1200(d)(1), Failure to
Maintain Written Telemarketing Policy,” Horton, alleges that “[he] requested an
Internal DNC Policy directly from Molina via their website. It was never supplied.”
(See Compl. ECF p. 7-8). Section 64.1200(d) is one of the implementing regulations
of the TCPA and provides in relevant part:
(d) No person or entity shall initiate . . . any call for
telemarketing purposes to a residential telephone subscriber unless such
person or entity has instituted procedures for maintaining a list of
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persons who request not to receive such calls made by or on behalf of
that person or entity. The procedures instituted must meet the
following minimum standards:
(1) Written policy. Persons or entities making . . . calls for
telemarketing purposes must have a written policy, available
upon demand, for maintaining a do-not-call list.
(2) Training of personnel engaged in telemarketing. Personnel . .
. engaged in any aspect of telemarketing must be informed and
trained in the existence and use of the do-not-call list.
. . .
(6) Maintenance of do-not-call lists. A person or entity making . .
. any call for telemarketing purposes must maintain a record of a
consumer's request not to receive further calls. A do-not-call
request must be honored for 5 years from the time the request is
made.
§ 64.1200(d). Horton seeks statutory damages of $500 in damages for each violation
as allowed by the TCPA, 47 U.S.C. § 227(c)(5)(B). (See id.)
Section 64.1200(d)(4) is part of the TCPA’s requirement to maintain an
internal do-not-call list. “The regulation relates to a marketer's duty to prepare
internal policies to receive and implement affirmative requests not to receive calls,”
so, where a plaintiff fails to “allege that he made any such affirmative request,” he
generally fails to allege “how the provision was violated.” Bailey v. Domino's Pizza,
LLC, 867 F. Supp. 2d 835, 842 (E.D. La. 2012) (granting motion to dismiss where a
complaint “simply recite[d] the requirements of 47 C.F.R. § 64.1200(d) and
conclusorily allege[d] that they were violated”); cf. John v. Keller Williams Realty, Inc.,
No. 6:19-cv-1347-Orl-40DCI, 2020 WL 10502631, at *5 (M.D. Fla. Feb. 4, 2020)
(“The regulations in § 61.1200(d) are not directly concerned with the national do-not-
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call list, but the requirement that companies maintain internal do-not-call lists.”
(emphasis in original)).
Molina represents that its website provides its “SMS Terms and Conditions”
for Texas, the text of which it sets out in its motion. (See Mot. at 11-12 (citing
https://www.molinahealthcare.com/members/common/en-US/text-terms-
conditions.aspx).) Horton maintains that even if he could have found the terms and
conditions on Molina’s website, under the TCPA, “a telemarketer must provide, on
demand, its internal and standalone Do Not Call Policy,” which Molina failed to do.
(See Resp. at ECF p. 11.) Horton also attaches a screenshot purporting to show that
he accessed his Molina account page to type in a message regarding “Other Health
Benefits” with a request to “Please provide me a copy of your internal DNC policy.”
(See Dkt. No. 9-4.) Horton contends that Molina “should have responded, directing
[him] to the terms and conditions page or sending me some document[,] but “they
ignored the request.” 	(See Resp. at ECF p. 11.)
Molina also argues for the first time in its reply brief that “there is no standing
for a failure-to-produce-policy claim unless the plaintiff shows that he requested to be
added to the company’s internal do-not-call list but still received messages
afterwards.”4 (Reply at 5.) There is no need to consider Molina’s standing argument,
4 The Court generally does not consider new arguments raised in a reply. Baker v.
Aetna Life Ins. Co., 228 F. Supp. 3d 764, 770 n.7 (N.D. Tex. 2017) (“[T]he court will not
consider an argument raised for the first time in a reply brief.” (internal quotation marks
omitted)); see also Robles v. Eminent Med. Ctr., LLC, 619 F. Supp. 3d 609, 626 (N.D. Tex.
2022) (“Arguments raised for the first time in a reply brief are generally waived, as the
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however, because the question of whether Horton plausibly alleged that Molina sent
the offending text messages goes to the merits of his claim. Here, Horton alleges that
he has been on the National Do Not Call List since 2011, but the complaint lacks
any allegation that Horton requested to be placed on an internal do-not-call list
maintained by a Molina or that could otherwise show that Molina failed to institute
required procedures for maintaining a do-not-call list as required by Section
64.1200(d)(4). (See generally Compl.) Nor does Horton allege that he asked to be put
on an internal do-not-call list and Molina failed to honor his request. Horton only
alleges that he requested a copy of Molina’s DNC policy, and it was not provided,
which is insufficient to state a claim under 47 C.F.R. § 64.1200(d).
E. 	Because Horton failed to sufficiently allege that Molina violated the TCPA,
his state law cause of action also fails.
Although Horton asserts that “Defendants” are liable under Texas state law
because they violated the TCPA (see Compl. at ECF p. 8), as explained above, the
undersigned concludes that Horton has failed to plausibly plead a TCPA claim.
Therefore, his state law under Section 305.053 of the Texas Business and Commerce
Code claim likewise fails. See National Republican Senatorial Comm., 2023 WL
372066, at *6 (“Because Horton failed to provide sufficient facts to plead a TCPA
section 227(b)(1)(A) violation, he necessarily fails to plead a TBCC section
responding party is deprived of the opportunity to respond to the new argument.” (internal
quotation marks omitted)).
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305.053(a) violation. The court, therefore, grants the NRSC’s motion to dismiss
Horton’s TBCC section 305.053(a) claim.”).
F. 	Horton is not entitled to a hearing to address his request that Molina be
compelled to reimburse the premium he paid for a healthcare policy.
On December 10, 2025, Horton filed a motion for hearing requesting that the
Court hold a hearing to compel Molina to issue Horton a refund for the premium he
paid to purchase an insurance policy from Molina. (See Dkt. No. 11.) As an initial
matter, there is no claim in this case relating to the premium or upon which the
Court could issue any ruling ordering Molina to reimburse Horton for the amount he
spent for health insurance or to reverse his prior purchase. (See generally Compl.)
A Court has jurisdiction to consider injunctive relief only to the extent it
relates to a claim in the case. See Williams v. Recovery School District, 859 F. Supp. 2d
824, 833 (E.D. La. 2012) (stating “the availability and scope of injunctive relief is
dictated by the nature of the violation”). “[A]n injunction cannot encompass more
conduct than was requested or exceed the legal basis of the lawsuit.” Carter v. Local
556, Transport Workers Union of America, 156 F.4th 459, 500 (5th Cir. 2025); see also
Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016) (concluding an injunction “is
overbroad if it is not narrowly tailored to remedy the specific action which gives rise
to the order as determined by the substantive law at issue”).
Here, the only claims alleged are violations of the TCPA and the parallel
Texas state law, seeking money damages as a result of alleged violative text
messages. (See Compl. at ECF p. 7-9). There is no cause of action relating to an
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improperly collected health care premium. Nor is there any claim regarding the
propriety (or impropriety) of Horton’s premium payment for the purchase of a
“Healthcare.org insurance policy.” (See Dkt, No. 11.) Accordingly, Horton’s
motion for hearing (Dkt. No. 11) is improper and should be denied.
IV. LEAVE TO AMEND
The ability to file objections to this recommendation (as further explained
below) allows Horton an opportunity to cure the deficiencies identified above—that
is, through timely objections, to provide enough facts to plausibly allege a claim
asserted—and thus show the Court that this case should not be dismissed with
prejudice at this time and that the Court should instead grant leave to amend. See
Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021) (“A court should
freely give leave to amend when justice so requires, but a movant must give the court
at least some notice of what his or her amendments would be and how those
amendments would cure the initial complaint’s defects. If the plaintiff does not
provide a copy of the amended complaint nor explain how the defects could be
cured, a district court may deny leave.” (citations omitted)).
If Horton fails to show through timely objections that leave to amend should
be granted, the Court should dismiss this case with prejudice.
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V. RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that Molina’s motion to
dismiss pursuant to Rule 12(b)(6) for failure to state a claim (Dkt. No. 5) be
GRANTED, and Horton’s motion for a hearing (Dkt. No. 11) be DENIED.
SO RECOMMENDED on February 6, 2026.
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. 	Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being served
with a copy. 	See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 	To be specific, an
objection must identify the finding or recommendation to which objection is made,
state the basis for the objection, and indicate the place in the magistrate judge’s report
and recommendation where the disputed determination is found. 	An objection that
merely incorporates by reference or refers to the briefing before the magistrate judge is
not specific. Failure to file specific written objections will bar the aggrieved party from
appealing the factual findings and legal conclusions of the magistrate judge that are
accepted or adopted by the district court, except upon grounds of plain error. 	See
Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections
to 14 days).
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