Fluker v. Ally Financial: The Sixth Circuit on What It Takes to Plead an Autodialer or Prerecorded Voice

Background

The plaintiff, pro se, alleged that between February 2021 and September 2022 the defendant placed more than 800 calls to his cellphone to recover "an alleged debt connected to a car loan," using "an automatic telephone dialing system which contained a pre-recorded voice," without consent and after he asked it to stop. He asked for $300,000 in statutory damages and $1 million in punitive damages. The district court dismissed with prejudice.

The district court also noted that the plaintiff was in custody for much of the period. The panel observed that the dates did not fully overlap, and that a single violating call is actionable under Charvat v. EchoStar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010). It assumed he received enough calls and decided the case on other grounds.

The Autodialer Claim

Applying Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), the panel reiterated that an ATDS must use a random or sequential number generator to store or produce numbers; equipment that dials from a preset list falls outside the definition. The bare allegation that the defendant used an ATDS was a recitation of an element. A plaintiff need not plead technical specifications, but must indicate what about the calls supports the inference.

Call volume alone did not suffice. Eight hundred calls over 20 months is "merely consistent with" ATDS use. In a footnote, the panel addressed the district court's view that a debt collection purpose shows targeted calling incompatible with random number generation. Because the complaint referred only to "an alleged debt," the panel declined to treat it as a concession, but found the complaint deficient regardless.

The Prerecorded Voice Claim

The prerecorded voice claim also failed on similar grounds, although the panel conceded that quantity is more probative in this context. Common sense suggests a company calling 40 times a month might use a prerecorded message, which "might get [the plaintiff] close." But, in the court's words, close counts in horseshoes and hand grenades, not federal pleading.

The panel then described the kind of facts that would suffice, and they are modest: an inability to interrupt the speaker, or conspicuous dead air in the message. No discovery is needed to describe what made a call sound recorded.

The panel also held that new state law claims raised for the first time in an opposition brief could not amend the complaint.

Practical Implications

For defendants in the Sixth Circuit, the opinion is useful authority for moving against complaints that merely track statutory language, especially ATDS allegations after Duguid. For plaintiffs, the lesson is to plead concrete observations about the calls themselves: message content, the generic nature of the script, the sound of the voice, pauses, and whether a live person could be reached. Although unpublished, the opinion's list of sufficient facts gives district courts a practical benchmark.

Read the Sixth Circuit opinion in Fluker v. Ally Financial.