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Hashw v. Dep't Stores Nat'l Bank

United States District Court, D. Minnesota

November 26, 2013

Ameer A. Hashw, on behalf of himself and others similarly situated, Plaintiff,
v.
Department Stores National Bank and FDS Bank, Defendants

Decided: November 25, 2013.

Mark L. Heaney, Heaney Law Firm, LLC, Minnetonka, Minnesota, Alexander H. Burke, Burke Law Offices, LLC, Chicago, Illinois, for Plaintiff.

Amy L. Schwartz, Lapp, Libra, Thomson, Stoebner & Pusch, Minneapolis, Minnesota, Martin C. Bryce, Jr., Mark J. Furletti, Ballard Spahr LLP, Philadelphia, Pennsylvania, for Defendants.

OPINION

Page 1059

MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, United States District Judge.

INTRODUCTION

In this action, Plaintiff Ameer Hashw alleges that he received calls on his cellular phone from Defendants Department Stores National Bank (" DSNB" ) and FDS Bank (" FDS" ) without his consent. He alleges that these calls were made using an automatic telephone dialing system (" ATDS" ) in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b) (" TCPA" ). Defendants now move to dismiss. For the reasons that follow, their Motion will be denied.

BACKGROUND

Hashw opened a Macy's credit card through DSNB in 2006. (Am. Compl. ¶ 9.) He fell behind on his payments and, between December 2010 and February 2011, DSNB and/or FDS [1] called his cellular phone 112 times using an ATDS. (Id. ¶ ¶ 10-11, Ex. A.) He did not consent to Defendants contacting his cellular phone, and he alleges his number was obtained from a credit bureau or a " skip trace" service. (Id. ¶ ¶ 15-16.) He further alleges that Defendants' calls were made to collect a debt or for telemarketing purposes. (Id. ¶ 13.)

On March 29, 2013, Hashw commenced this action on his own behalf and on behalf of others similarly situated, asserting that the calls violated the TCPA. After Hashw amended his Complaint, Defendants filed the instant Motion to Dismiss. Their Motion has been fully briefed and is ripe for disposition.

STANDARD OF DECISION

The Supreme Court set forth the standard for evaluating a motion to dismiss in Bell Atlantic Corp. v. Twombly,550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To avoid dismissal, a complaint must include " enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 547. A " formulaic recitation of ...


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