Crouch v. Regional Acceptance Corporation

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TEURAH CROUCH, formerly known 	§
as Teurah Malone, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:25-cv-2162-G-BN
§
REGIONAL ACCEPTANCE 	§
CORPORATION, 	§
§
Defendant. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Teurah Crouch (formerly known as Teurah Malone) (“Crouch”)
filed this lawsuit alleging violations of the Telephone Consumer Protection Act
(“TCPA”), a federal statute, in an Ellis County, Texas justice court, and Defendant
Regional 	Acceptance 	Corporation 	(“RAC”) 	removed 	under 	the 	Court’s 	federal-
question subject-matter jurisdiction. See Dkt. No. 1.
Senior United States District Judge A. Joe Fish referred the removed lawsuit
to the undersigned United States magistrate judge for pretrial management under
28 U.S.C. § 636(b) and a standing order of reference.
RAC then moved to dismiss Crouch’s claims under Federal Rule of Civil
Procedure 12(b)(6). See Dkt. No. 6. Crouch responded, and RAC replied. See Dkt. Nos.
11, 14, & 15.
For the reasons and to the extent set out below, the Court should grant the
motion to dismiss and dismiss this lawsuit.
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Legal Standards
A motion under Rule 12(b)(6) is “not meant to resolve disputed facts or test the
merits of a lawsuit” but “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).
Considering such a motion, 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).
But a plaintiff still must plead “enough facts to state a claim to relief that is
plausible on its face” and must plead those facts with enough specificity “to raise a
right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 555 (2007).
“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).
So a court’s “obligation [is] to accept [the] complaint’s factual allegations as
true and assess whether those facts permit a reasonable inference that [a defendant]
is liable.” Sewell, 974 F.3d at 581; cf. Bryant v. Ditech Fin., L.L.C., No. 23-10416, 2024
WL 890122, at *3 (5th Cir. Mar. 1, 2024) (“[J]ust as plaintiffs cannot state a claim
using speculation, defendants cannot defeat plausible inferences using speculation.”).
This “plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,
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556 U.S. at 678.
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. (cleaned up; quoting Twombly, 550 U.S. at 557); see, e.g.,
Parker v. Landry, 935 F.3d 9, 17 (1st Cir. 2019) (Where “a complaint reveals random
puffs of smoke but nothing resembling real signs of fire, the plausibility standard is
not satisfied.”).
And, while Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed
factual allegations, it does require that a plaintiff allege more than labels and
conclusions.
So, while a court must accept a plaintiff’s factual allegations as true, it 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).
Consequently, a threadbare or formulaic recitation of the elements of a cause
of 	action, 	supported 	by 	mere 	conclusory 	statements, 	will 	not 	suffice. 	See 	id.;
Armstrong v. Ashley, 60 F.4th 262, 269 (5th Cir. 2023) (“[T]he court does not ‘presume
true a number of categories of statements, including legal conclusions; mere labels;
threadbare recitals of the elements of a cause of action; conclusory statements; and
naked assertions devoid of further factual enhancement.’” (quoting Harmon v. City of
Arlington, Tex., 16 F.4th 1159, 1162-63 (5th Cir. 2021))).
Summed up, “to survive” dismissal under Twombly and Iqbal, plaintiffs must
“plead 	facts 	sufficient 	to 	show” 	that 	the 	claims 	asserted 	have 	“substantive
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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) (per
curiam) (citing FED . R. CIV. P. 8(a)(2)-(3), (d)(1), (e)); cf. Brown v. Tarrant Cnty., Tex.,
985 F.3d 489, 494 (5th Cir. 2021) (While “[p]ro se complaints receive a ‘liberal
construction,’” “mere conclusory allegations on a critical issue are insufficient.”
(cleaned up)).
Federal Rule of Civil Procedure 15 requires that leave to amend be granted
freely “when justice so requires.” FED . R. CIV. P. 15(a)(2).
Because this rule provides a “strong presumption in favor of granting leave to
amend,” Fin. Acquisition Partners, LP v. Blackwell, 440 F.3d 278, 291 (5th Cir. 2006),
the Court must do so “unless there is a substantial reason to deny leave to amend,”
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. Nov. 1981).
One such reason is futility. That is, “[i]f 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)).
In this regard, the Court must “ask whether, in his proposed amended
complaint, [a plaintiff] has pleaded ‘factual content that allows the court to draw the
reasonable inference that [a] defendant is liable for the misconduct alleged.’” Id.
(quoting Iqbal, 556 U.S. at 678); cf. Peña v. City of Rio Grande City, 879 F.3d 613, 618
(5th Cir. 2018) (“Where the district court’s denial of leave to amend was based solely
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on futility, [the United States Court of Appeals for the Fifth Circuit] applies a de novo
standard of review identical, in practice, to the standard used for reviewing a
dismissal under Rule 12(b)(6).” (cleaned up)).
Analysis
The operative complaint remains Crouch’s petition filed in state court in which
she requests relief ($4,800) under an unspecified provision of TCPA based on text
messages that she received from RAC after she revoked consent to receive text
messages. See Dkt. No. 1-2; id. at 2 (alleging that, under the TCPA, “a company must
cease sending automated messages when consent is revoked”).
Through her response to the motion to dismiss, Crouch identifies Section
227(b)(1)(A)(iii), 	a 	subpart 	of 	the 	TCPA, 	and 	adds 	that 	“the 	loan 	agreement
contemplates Defendant’s use of an automated telephone dialing system (ATDS)
and/or prerecorded/artificial voice to contact borrowers.” Dkt. No. 14 at 1.
Plaintiffs may not amend their allegations through a response to a motion to
dismiss.
But federal district courts routinely allow pro se litigants an opportunity to
amend their pleadings after removal. See Plamquist v. Hain Celestial Grp., Inc., 103
F.4th 294, 303 (5th Cir. 2024) (“[A] plaintiff should not be penalized for adhering to
the pleading standards of the jurisdiction in which the case was originally brought.
Otherwise, where there are potentially diverse parties, plaintiffs would essentially
have to plead the federal pleading standard in state court for fear of having their
claims against non-diverse parties thrown out upon reaching federal courts for failing
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to comply with the demands of [Federal Rule of Civil Procedure] 12(b)(6).” (citing
Peña, 879 F.3d at 617 (“Removal from a notice-pleading jurisdiction is a natural time
at which justice would call for the court to permit such an amendment.” (citing
Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1021 (9th Cir. 2013))))).
So, to the extent that Crouch’s response reveals how she would amend her
claims if the Court were to grant leave to amend, the undersigned has considered its
substance below.
And, 	because 	neither 	the 	operative 	complaint 	nor 	Crouch’s 	proposed
“amendment” provides the factual content required to plausibly plead a claim under
the TCPA, not only should the Court grant RAC’s motion to dismiss, but it should
also deny Crouch leave to amend as futile since, for the reasons set out below,
Crouch’s claims would still not survive a challenge under Rule 12(b)(6).
Section 227(b) of the TCPA makes it unlawful for any person to
“make any call (other than a call made for emergency purposes or made
with the prior express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded voice to any
telephone number assigned to a cellular telephone service.” 47 U.S.C. §
227(b)(1)(A)(iii). A violation of § 227(b)(1)(A)(iii) occurs if: “(1) the
defendant called a cellular telephone number; (2) using an automatic
telephone dialing system or an artificial or prerecorded voice; (3) without
the recipient’s prior express consent.” Cunningham v. Nationwide Sec.
Sols., Inc., No. 3:17-cv-337-M, 2017 WL 10486988, at *2 (N.D. Tex. Nov.
2, 2017) (quoting Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d
1036, 1043 (9th Cir. 2012)).
Hunsinger v. Alpha Cash Buyers, LLC, No. 3:21-cv-1598-D, 2021 WL 5040228, at *3
(N.D. Tex. Oct. 29, 2021) (cleaned up).
And “[a] text message to a cellular telephone, it is undisputed, qualifies as a
‘call’ within the compass of § 227(b)(1)(A)(iii).” Id. (quoting Campbell-Ewald Co. v.
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Gomez, 577 U.S. 153, 156 (2016)).
Section 227(b) violations require the use of an automatic telephone dialing
system (“ATDS”) or an “artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A)(iii).
Taking the ATDS option first,
[t]he TCPA defines an ATDS as “equipment which 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.” 47 U.S.C.
§ 227(a)(1). [And] the Supreme Court resolved a circuit split “regarding
whether an autodialer must have the capacity to generate random or
sequential phone numbers,” or whether an ATDS “need only have the
capacity to store numbers to be called and to dial such numbers
automatically.” Facebook, Inc. v. Duguid, 592 U.S. 395, 401 (2021)
(internal quotations omitted). The Court held that, “[t]o qualify as an
‘automatic telephone dialing system,’ a device 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.” Id. at 399. Thus to establish a claim
under § 227(b), “the equipment in question must use a random or
sequential number generator,” not merely auto-dial stored numbers. Id.
at 404.
Id. (cleaned up).
In Duguid,
[t]he Court’s discussion of the TCPA’s policy aims also supports the view
that an autodialer must be able to generate random or sequential
telephone 	numbers. 	It 	noted 	that 	autodialers 	had 	“revolutionized
telemarketing by allowing companies to dial random or sequential
blocks 	of 	telephone 	numbers 	automatically.” 	Besides 	annoying
consumers, the autodialer “threatened public safety by ‘seizing the
telephone lines of public emergency services, dangerously preventing
those lines from being utilized to receive calls from those needing
emergency services.’” And it could “simultaneously tie up all the lines of
any business with sequentially numbered phone lines.”
Borden v. eFinancial, LLC, 53 F.4th 1230, 1234 (9th Cir. 2022) (cleaned up; quoting
Duguid, 592 U.S. at 399-400); see also Beal v. Outfield Brew House, LLC, 29 F.4th
391, 395 (8th Cir. 2022) (Section 227 “‘target[s] a unique type of telemarketing
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equipment 	that 	risks 	dialing 	emergency 	lines 	randomly 	or 	tying 	up 	all 	the
sequentially numbered lines at a single entity.’ [And t]he Court reasoned, ‘Expanding
the definition of an [A]utodialer to encompass any equipment that merely stores and
dials telephone numbers would take a chainsaw to these nuanced problems when
Congress meant to use a scalpel.’” (quoting Duguid, 592 U.S. at 405)).
But the use of an ATDS employing a random or sequential number generator
is not required where a plaintiff alleges that an artificial or prerecorded voice played.
That is because, “[t]o be liable under the ‘artificial or prerecorded voice’ section
of the TCPA, … a defendant must make a call and an artificial or prerecorded voice
must actually play.” Ybarra v. Dish Network, L.L.C., 807 F.3d 635, 640 (5th Cir.
2015). So, if a defendant “mak[es] a call in which a prerecorded voice might, but does
not, play is not a violation of the TCPA.” Id. at 641.
Instead, the prerecorded voice must “speak” during the call. A party who
makes a call using an automatic telephone dialing system uses the
system to make the call, regardless of whether the recipient answers,
and thereby triggers TCPA liability. With a prerecorded voice, though,
unless the recipient answers, an artificial or prerecorded voice is never
used.
Id. (emphasis in original); see also Lenorowitz v. Mosquito Squad of Fairfield &
Westchester Cnty., No. 3:20-cv-01922 (JBA), 2022 WL 4367596, at *5 (D. Conn. Sept.
21, 2022) (concluding that, in its “view, it is sufficient under the TCPA for Plaintiff to
demonstrate 	that 	a 	message 	containing 	a 	pre-recorded 	voice 	was 	successfully
delivered to his voice mailbox” (collecting cases)).
Crouch’s complaint fails to mention either the use of an ATDS or an artificial
or prerecorded voice or – more importantly – facts from which the Court may
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reasonably infer the use of either.
So the pleading alone fails to plausibly allege a violation of the TCPA.
And, while Crouch does offer more through her response – that “the loan
agreement contemplates Defendant’s use of an automated telephone dialing system
(ATDS) and/or prerecorded/artificial voice to contact borrowers” – as to an ATDS, that
allegation is conclusory considering that, since Duguid, courts have emphasized the
need to plausibly allege the use of an ATDS by focusing on facts that could show that
the defendant’s device used a random or sequential number generator to produce or
store phone numbers (as opposed to another method).
Nor has Crouch plausibly pleaded that a prerecorded voice “spoke” during a
call (or even that a pre-recorded voice message was left for her) where all she has
alleged is that she received text messages. And, so, the motion to dismiss should be
granted and this lawsuit should be dismissed with prejudice.
But the opportunity to file objections to these findings, conclusions, and
recommendation (as further explained below) allows Crouch another opportunity to
show that this case should not be dismissed with prejudice 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) (per curiam) (“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)).
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Recommendation
The Court should grant Defendant Regional Acceptance Corporation’s motion
to dismiss [Dkt. No. 6] and, unless Plaintiff Teurah Crouch through timely objections
to this recommendation shows a basis to amend to allege a plausible claim, the Court
should dismiss this lawsuit with prejudice for failure to state a claim on which relief
may be granted.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, 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). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, 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 Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: February 11, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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