United States District Court, N.D. Georgia, Atlanta Division
TIMOTHY P. WEED, Plaintiff,
SUNTRUST BANK, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant SunTrust Bank's
(“Defendant” or “SunTrust”) Motion to
Timothy P. Weed (“Weed”) alleges that in early
2017, Defendant began calling his cellular telephone using an
“automated telephone dialing system.” (First
Amended Complaint “Compl.”  ¶ 5). When he
answered the calls, Weed would sometimes hear prerecorded
messages instructing him to “wait for an important
message from SunTrust.” Id. ¶ 6. At other
times, he would hear a “clicking noise” before
being connected to a representative. Id. ¶ 7.
Weed alleges the clicking noise and the use of a prerecorded
message are indicative of SunTrust's use of a predictive
alleges that in or around February 2017, he spoke with a live
SunTrust representative and asked SunTrust to cease calling
his cellular phone number. SunTrust continued to place
automated calls to Weed's cell phone.
6, 2015, before the calls at issue in this case began, Weed
entered into a Retail Installment Sale Contract (the
“Sale Contract”) to purchase a car with financing
from a third party lender. The Sale Contract was later
assigned to SunTrust. ([11.2]). The Sale Contract provides:
Servicing and Collection Contacts
You agree that we may try to contact you in writing, by
e-mail, or using prerecorded/artificial voice messages, text
messages, and automatic telephone dialing systems, as the law
allows[.] You also agree that we may try and contact you in
these and other ways at any address or telephone number you
provide, even if the telephone number is a cell phone number
or the contact results in a charge to you.
([11.2] at 2). The only contact information listed in the
Sale Contract is Weed's name and address. It does not
list Weed's cell phone number.
December 20, 2017, Weed filed his Amended Complaint, alleging
violations of the Telephone Consumer Protection Act, 47
U.S.C. § 227, et seq. (“TCPA”).
January 12, 2018, SunTrust filed its Motion to Dismiss .
SunTrust argues the Amended Complaint fails to allege
sufficient facts to support a violation of the TCPA, and,
even if it does, Weed irrevocably consented to receiving
phone calls from SunTrust in the Sale Contract.
motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the Court must “assume that
the factual allegations in the complaint are true and give
the plaintiff the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc.,
626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable
inferences are made in the plaintiff's favor,
“‘unwarranted deductions of fact' are not
admitted as true.” Aldana v. Del Monte Fresh
Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005)
(quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84
F.3d 402, 408 n.10 (11th Cir. 1996)). Similarly, the Court is
not required to accept conclusory allegations and legal