Aflac Moves to Dismiss Second Amended Complaint for Failure to State a Claim
Aflac seeks the dismissal of Stewart Smith’s second amended Telephone Consumer Protection Act class action for failure to state a claim, said the insurer’s memorandum of law Tuesday (docket 2:24-cv-00679) in U.S. District Court for Eastern Pennsylvania in Philadelphia in…
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support of its motion to dismiss. Smith originally alleged that Aflac violated the TCPA by placing a single telemarketing robocall to his cellphone, despite his number having been listed on the national do not call registry since June 2010 (see 2402160002). Aflac filed a motion April 8 to dismiss Smith’s first amended complaint for failure to state a claim (see 2404090028), said the memorandum. The plaintiff didn’t respond to that motion, but instead, nine days after the deadline to respond had elapsed, he filed a second amended complaint “in an apparent attempt to cure the deficiencies” that Aflac identified in the first amended complaint, it said. But the second amended complaint “sets forth only a few new allegations, most of which are generalized and non-specific,” it said. For largely the same reasons set forth in Aflac’s prior motion to dismiss, the court should dismiss Smith’s second amended complaint with prejudice, it said. Though the plaintiff now alleges that he received more than one call, he still doesn’t allege facts to support his “conclusory assertion” that Aflac itself or someone acting on Aflac’s behalf placed those calls, said the memorandum. His entire theory of liability against Aflac rests on the “single, conclusory allegation” that Aflac placed the calls because an automated message would play indicating the call was from Aflac or that a live caller would tell Smith that the call was from Aflac, it said. But Smith doesn’t allege “any details whatsoever about these calls to support the notion that Aflac was responsible,” it said. For example, he doesn’t identify the number that called him, describe how the live caller identified himself or herself, detail what was said during the live calls or during the prerecorded message, or provide any other facts that could identify Aflac as the caller, it said. Nor does Smith explain how any of the purported calls “were dispositioned,” that he identified the phone numbers that placed the calls as being connected to Aflac, that he spoke with a company representative or agent initially or following a prerecorded message, or that he received a quote or other documentation from the insurer after any calls, it said. Because Smith doesn’t allege sufficient facts to establish that there was a TCPA violation or that Aflac was involved at all, the court should dismiss the second amended complaint under Rule 12(b)(6), with prejudice, it said.