Ortega v. DiTommaso Inc.: A "Distinct Pause" Pleads List Dialing, Not an Autodialer, but Live Transfers Plead Agency

Allegations

The plaintiff's cell number had been on the National Do Not Call Registry since 2012. He alleged that a call center placed calls to him on February 29, 2024, on behalf of the defendant, a business lender. On one call there was a distinct pause before a representative came on, asked about business loans and transferred him to an owner of the defendant, who discussed a line of credit. The owner then texted him. The plaintiff replied that his number was on the Registry, and two more texts followed. After a demand letter, the defendant said it uses a third party call center for telemarketing.

The Autodialer Claim Fails

Section 227(b)(1)(A)(iii) requires use of an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice. Under Duguid, an ATDS must use a random or sequential number generator to store or produce numbers. The court cited Panzarella v. Navient Solutions, which distinguished random or sequential dialing from calls made from a customer list.

The complaint alleged that the pause demonstrated the system was "working through a list of numbers." That allegation defeated the claim: dialing from a list is not ATDS use. Having filed an amended complaint after notice of the defendant's arguments, the dismissal of this claim came without further leave to amend.

The Do Not Call Claim Survives

Section 227(c)(5) requires more than one call within twelve months. The defendant said only one call was alleged and the texts were requested. The court saw the complaint as alleging multiple "calls" on February 29, 2024, which was enough. It declined to rely on the superseded original complaint, because under Fifth Circuit law superseded pleadings are not judicial admissions, though they may be used as evidence later. The defendant did not dispute that texts can count as calls, so the court assumed so without deciding.

Agency Is Plausibly Pleaded

The defendant argued the complaint only alleged that the call center had placed the calls. Agency may be pleaded with generalized facts. A call center representative transferring the call to the defendant's owner, the owner's follow-up texts, and allegations that the defendant outsourced telemarketing and had accepted live transfers were more than a bare assertion. The plaintiff could not be expected to describe the business relationship in more detail without discovery.

Texas Claims

The Texas registration claim under Business and Commerce Code § 302.101 survived on the same agency reasoning; the defendant may contest its "seller" status at summary judgment. The § 305.053 claim which piggybacks on a TCPA violation survived with the Do Not Call claim.

Takeaways

• Pause allegations can backfire. Alleging that a system worked through a list concedes the opposite of what Duguid requires.
• Live transfers matter. A transfer from a call center to the seller's own personnel is strong agency pleading.
• Separate claims. The TCPA Do Not Call claim does not depend on autodialer use.

Read the Western District of Texas memorandum opinion.