Koeller v. Cyflare Security: Do Not Call Damages Claim Proceeds, Injunctive Relief Dismissed

Allegations

The plaintiff alleged that his number, used only for personal residential purposes, had been on the National Do Not Call Registry since 2007. In February 2025, an employee of the defendant, a cybersecurity company, called to solicit its products. Plaintiff indicated that he was not interested, and that the number was personal. The same employee contacted him again in March 2025. The plaintiff filed this suit under 47 U.S.C. § 227(c)(5) and 47 C.F.R. § 64.1200(c)(2), seeking statutory damages, treble damages, and an injunction on behalf of himself and a putative class.

Residential Status Is Not Resolved on Outside Evidence

The defendant relied on the plaintiff's deposition testimony from an earlier lawsuit, which it said showed he used the number extensively to communicate with co-workers and received a work stipend for the phone. The court acknowledged that the registry rule applies only to residential subscribers and that a mixed-use number can be a business line on particular facts, citing Chennette v. Porch.com, Inc., No. 20-35962 (9th Cir. Oct. 12, 2022), which sets out factors for that inquiry.

But on a Rule 12(b)(6) motion, the court could not consider deposition testimony that was neither embraced by the pleadings nor a public record. The residential question is fact intensive and was not suited to resolution on a limited record. The complaint's factual allegations of residential use stated a plausible claim.

Treble Damages Are Relief, Not a Claim

The defendant argued that the complaint did not plausibly allege a willful or knowing violation, so treble damages should be dismissed. The court held that treble damages, like punitive damages, are a form of relief rather than a claim subject to Rule 12(b)(6). The amount recoverable depends on proof, not the demand in the pleading.

No Standing for Injunctive Relief

The defendant prevailed on this point. A plaintiff seeking an injunction must show a real and immediate threat of future injury, and past wrongs alone do not suffice. The plaintiff alleged two calls nearly three months apart and a single consumer complaint about cold calling almost a year before his calls. Those were only past instances of conduct, and the mere possibility of similar future calls was too speculative. The court granted the motion on the injunctive relief claim. The defendant was ordered to answer the remaining causes of action.

Practical Implications

Residential status. Defendants with evidence that a plaintiff uses a number for work should expect to present it at summary judgment, not on a motion to dismiss, unless the complaint itself supports the argument.

Treble damages. Motions targeting enhanced damages at the pleading stage are unlikely to succeed in courts following this reasoning.

Injunctive relief. Two calls months apart, with no allegation of continuing calls, were not enough here. Defendants should evaluate the specific pleading before moving against injunctive claims, and plaintiffs should allege facts suggesting continuing conduct.

Read the Eastern District of Missouri memorandum and order in Koeller v. Cyflare Security.