Plaintiff Urges Denial of Aflac’s ‘Misguided’ Motion to Dismiss His Complaint
Because plaintiff Stewart Smith has pleaded “concise" short claims of Telephone Consumer Protection Act wrongdoing against Aflac, and the company has been given notice as to the basis of his claims, the insurer's “misguided” May 14 motion to dismiss should…
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be denied (see 2405150017), said Smith’s opposition Tuesday (docket 2:24-cv-00679) in U.S. District Court for Eastern Pennsylvania in Philadelphia. Smith’s class action alleges Aflac placed five telemarketing calls to his cellphone without his consent and in violation of the TCPA’s do not call rule. In its motion to dismiss, Aflac argues that Smith failed to state a claim upon which relief can be granted, but Aflac’s argument fails, said the plaintiff’s opposition. Aflac “errantly argues” that Smith doesn’t plausibly allege the calls were made by the plaintiff or on its behalf, it said. But Smith “specifically alleges the calls placed to him were made by or on behalf of Aflac,” it said. The second amended complaint “clearly alleges” that Smith was either told by representatives that the calls were from Aflac or a message would play indicating the calls were from Aflac, it said. “Such information is sufficient at the pleading stage to identify Aflac as the caller,” said Smith’s opposition. Other TCPA defendants have made “similar strained arguments” as those presented by the defendant, “and those arguments have been rejected by the courts,” it said. The plaintiff doesn’t know the first and last names of every person who works for Aflac and was involved in calling him, “nor would he need to plead as much in a complaint if he did,” it said. Rule 8 requires “a short and plain statement upon which relief can be granted,” it said. The rules of pleading don’t require that the plaintiff show “intricate knowledge of the workings of a defendant’s business, nor do they require tedious, needless details that are inapposite to the basis for which relief can be granted,” it said. The court should reject Aflac’s efforts “to impose new heights on the requirements of Rule 8,” it said.