interpreting “capacity” under § 227 “to mean ‘is capable of,’ not ‘could 27 be capable of’ or ‘has the potential to be capable of.’ ”
How later courts described this case
- interpreting “capacity” under § 227 “to mean ‘is capable of,’ not ‘could 27 be capable of’ or ‘has the potential to be capable of.’ ”
- finding no abuse of 4 || discretion in denying leave to amend where the amendment would be futile
Written by the judges who cited it.
The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 RONALD CUPP, Case No. 24-cv-07388-AMO
8 Plaintiff,
ORDER GRANTING MOTION TO
9 v. DISMISS PLAINTIFF’S FIRST
AMENDED COMPLAINT
10 ABC-AMEGA, INC., et al.,
Re: Dkt. No. 29
Defendants.
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13 Before the Court is Defendant BDO USA, P.C.’s (“BDO”) motion to dismiss self-
14 represented Plaintiff Ronald Cupp’s first amended complaint (“FAC”), Dkt. No. 29, which
15 defendant ABC-Amega joined, Dkt. No. 30. This Order assumes familiarity with the facts and
16 procedural history of this case. The motion is fully briefed and because it is suitable for decision
17 without oral argument, the Court vacated the August 14, 2025 hearing. See Fed. R. Civ. P. 78;
18 Civ. L.R. 7-1(b). Having carefully reviewed the parties’ papers, the arguments made therein, and
19 the relevant legal authority, the Court hereby GRANTS BDO’s motion for the following reasons.
20 The Court previously found Cupp failed to state a claim under the Telephone Consumer
21 Protection Act (“TCPA”), and granted leave to amend solely for the purpose of adding allegations
22 regarding whether Defendants used an automatic telephone dialing system (“ATDS”) and whether
23 Cupp consented to the communications. Dkt. No. 27 at 4. An ADTS is “equipment that has the
24 capacity (A) to store or produce telephone numbers to be called, using a random or sequential
25 number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). To survive the motion
26 to dismiss, Cupp “need not somehow have inside knowledge of a defendant’s operations and
27 equipment to survive dismissal under Rule 12(b)(6), rather, he . . . merely must proffer factual
1 Plumbing, Inc. v. Pivotal Payments, Inc., No. 16-CV-05486-JCS, 2017 WL 733123, at *8 (N.D.
2 Cal. Feb. 24, 2017) (citing Brown v. Collections Bureau of Am., Ltd, 183 F.Supp.3d 1004, 1005
3 (N.D. Cal. 2016)).
4 For the most part, Cupp’s additions in the FAC are legal arguments regarding the
5 “capacity” of the equipment used to call him. Cupp stresses that he “can not factually state how
6 defendants[’] phone/text system works at this stage, pending some discovery, but upon
7 information and belief, defendants’ system does have the capacity . . . to store and produce
8 numbers and to dial such numbers.” FAC ¶ 12 (emphasis in original). Acknowledging the lack of
9 factual allegations regarding the functionality of the equipment used to make the calls to him,
10 Cupp asserts that his “layman’s understanding [is] that the only software or equipment that does
11 not have the ATDS ‘CAPACITY’ is a hard-wired old type of rotary phone” for which “[n]othing
12 can plug in or add or change the system.” FAC ¶ 26.
13 However, in interpreting the TCPA, the U.S. Supreme Court has held “a necessary feature
14 of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number
15 generator to either store or produce phone numbers to be called,” because if the requirement were
16 simply that a telephone have the capacity to autodial stored phone numbers that had not been
17 randomly or sequentially generated in the first instance, such interpretation “would capture
18 virtually all modern cell phones, which have the capacity to store numbers to be called and dial
19 such numbers.” Facebook, Inc. v. Duguid, 592 U.S. 395, 405-06 (2021) (citing 47 U.S.C.
20 § 227(a)(1)) (internal quotation marks and modifications omitted). Cupp is therefore mistaken
21 that all modern phones have the requisite ADTS “capacity” under § 227. If Cupp means to say
22 that any phone other than a “non-wired old type of rotary phone” has ADTS capacity because it
23 has the potential to obtain the capacity through modification of the device, Cupp provides no
24 authority supporting such an interpretation, and that interpretation runs counter to the Supreme
25 Court’s interpretation of the statute. See id; cf. Gragg v. Orange Cab Co., 995 F.Supp.2d 1189,
26 1195 (W.D. Wash. 2014) (interpreting “capacity” under § 227 “to mean ‘is capable of,’ not ‘could
27 be capable of’ or ‘has the potential to be capable of.’ ”).
1 ATDS was used, FAC ¶ 24, but knowledge is not required at this stage; rather, he must state a
2 claim plausible on its face. He has not done so. In the absence of knowledge or evidence of a
3 device’s ATDS capacity, certain facts can support an inference of such capacity sufficient at the
4 pleading stage to survive a motion to dismiss. For example, in Brown, the court denied a motion
5 to dismiss a TCPA claim, rejecting the defendant’s argument that the plaintiff’s “inability to allege
6 any facts about the content of the calls he received (because he does not suggest he answered any
7 of them) means his allegations that defendant used an ATDS are fatally conclusory.” Brown, 183
8 F.Supp.3d at 1005. There, the plaintiff alleged the defendant called him using an ATDS at least
9 sixteen times, and he alleged that he had read internet complaints about calls from the same phone
10 numbers. Id. While the court recognized that internet complaints by anonymous third parties
11 likely would not be admissible evidence, it concluded the plaintiff had stated a claim that was
12 facially plausible. Id.
13 Here, however, Cupp has put forth no such facts, and thus has failed to plausibly allege the
14 calls were made from a device with ATDS capacity. In his initial complaint, Cupp alleged several
15 facts that the Court found to be inconsistent with his allegations that a ATDS was used. For
16 example, Cupp alleged initially that he “talked to a lady who was making phone collections from a
17 controller’s office of BDO in TN,” Compl. ¶ 17, and that he received a call from someone
18 “claiming to be VP of ABC [who] threatened she would have someone local sue [him],” Compl.
19 ¶ 15. Cupp has omitted these allegations from the FAC. While no new facts in the FAC
20 contradict these previous allegations, see Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806
21 F.2d 1393, 1401 (9th Cir. 1986) (a plaintiff may amend a complaint only to allege “other facts
22 consistent with the challenged pleading”), Cupp has not included additional facts supporting his
23 allegation that the calls were made using an ATDS. In short, the FAC suffers the same
24 deficiencies as the initial complaint. The Court therefore need not reach the issue of whether
25 Cupp consented to the calls to determine dismissal of the complaint is appropriate. Accordingly,
26 the motion to dismiss is GRANTED.
27 Cupp requests that if the Court dismiss the FAC he be allowed to amend the complaint.
1 Indians v. Rose, 893 F.2d 1074 (9th Cir. 1990), Cupp has had two opportunities to plead a TCPA
2 || claim and has failed to do so. Accordingly, it is clear that further amendment would be futile.
3 See Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (finding no abuse of
4 || discretion in denying leave to amend where the amendment would be futile). Cupp’s FAC is thus
5 dismissed with prejudice.
6
7 IT IS SO ORDERED.
8 Dated: October 2, 2025
9 ff □
10 coh
ARACELI MARTINEZ-OLGUIN
I United States District Judge
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