Ms. Musenge rented a set of tires from Smartway, signing a lease that included permission to contact her, through live and automated calls, through her mobile telephone and further agreeing that she “waived the protections of all rights to privacy laws.” When she fell behind on payments, Smartway not only began sending text messages for collection but also promotional advertisements. Ms. Musenge attempted to revoke her consent to receive these messages in her own text message on at least one occasion. Smartways also sent representatives to confront Ms. Musenge in person, both at home and work and sent personal but unmarked letters to her place of employment, with co-workers unwittingly opening such mail and learning of her financial issues. Ms. Musenge then brought suit, alleging violations of the Telephone Consumer Protection Act (TCPA) and state debt collection and privacy tort violations. Smartways moved of a judgment on the pleadings.
The district court held that a TCPA violation requires that the text messages must be sent using an automatic telephone dialing system (ATDS), see 47 U.S.C. § 227(b)(2)(A)(iii), and that while the pleading requirements for such “is not a heavy one”, Ms. Musenge’s allegation in her brief opposing the motion that the text messages showed “a repeated transmission of generic, non-individualized messages of an ATDS” was insufficient, in part because such a brief was not an amendment to the complaint. (The district court did allow 15 days to seek leave to amend the complaint.)
Ms. Musenge’s state debt collection under the North Carolina Debt Collection Act (NCDCA) at N.C.G.S. § 75-50 (1)-(3), were sufficiently pled.
The claim under the North Carolina Unfair and Deceptive Trade Practices Act (UDTPA) at N.C.G.S. § 75-1.1, however, were dismissed as Ms. Musenge only alleged violations by Smartways in collecting its debt. As such, only violations of the NCDCA were pled.
Lastly, regarding the privacy tort violations, Smartways argued both that Ms. Musenge had consented to be contacted with waiver of privacy protections and that its contacts were not offensive. The district court seems to have ignored the first argument as utterly ludicrous and found that Ms. Musenge had, by alleging that Smartways contacted after revocation of consent, attempted to force its way into her home and trespassed at her job, met the standard for the tort of “invasion upon seclusion”. Her claim for intentional infliction of emotional distress failed, however, as she did not allege extreme or outrageous conduct by Smartways cause severe emotional distress.
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