Cupp

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 RONALD CUPP, Case No. 25-cv-07479-TSH

8 Plaintiff,

ORDER GRANTING MOTION TO

9 v. DISMISS

10 TA FINTECH, INC., Re: Dkt. No. 28

11 Defendant.

12

13 I. INTRODUCTION

14 Plaintiff Ronald Cupp brings this case against Defendant TA Fintech, Inc. for violations of

15 the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq. Pending before the

16 Court is Defendant’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

17 ECF No. 28. Plaintiff filed an Opposition (ECF No. 29) and Defendant filed a Reply (ECF No.

18 30). The Court finds this matter suitable for disposition without oral argument pursuant to Civil

19 Local Rule 7-1(b) and VACATES the April 9, 2026 hearing. For the reasons stated below, the

20 Court GRANTS the motion.1

21 II. BACKGROUND

22 Defendant is a national sales organization of securities trading and training for others under

23 the name of Trade Algo and Trade GPT. Compl. ¶ 6, ECF No. 1. Its primary business is selling

24 memberships. Id.

25 Plaintiff alleges that from April 20 through May 16, 2024, Defendant violated the TCPA

26 by texting and calling him “97 times using automatic telephone dialing system on Plaintiffs [sic]

27

1 emergency cell phone 707-318-9929, with no prior express consent or permission given by

2 Plaintiff.” Id. ¶ 8. Plaintiff “immediately revoked any perceived consent, thru emails, calls, and

3 texts from Defendant, plaintiff has instructed (Luke Russell) through Email, phone (Rob, Seth, and

4 another man), and by calling Corporate Office in New York and the Agent in DE. to stop calling

5 and texting.” Id. ¶ 9. He states he “was told verbally and through text messages that he would be

6 removed from the ‘call list’. But call/text continued to bombard Plaintiff.” Id. On May 6, 2024,

7 Plaintiff sent to Defendant “via certified mail a notice of intention to commence action,” but

8 Defendant did not respond. Id. ¶ 14.

9 Plaintiff filed this case on September 4, 2025, bringing one claim for violation of the

10 TCPA. Id. ¶¶ 19-25. Defendant filed the present motion on February 13, 2026.

11 III. LEGAL STANDARD

12 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal

13 sufficiency of a claim. A claim may be dismissed only if it appears beyond doubt that the plaintiff

14 can prove no set of facts in support of his claim which would entitle him to relief.” Cook v.

15 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citation and quotation marks omitted). Rule 8

16 provides that a complaint must contain a “short and plain statement of the claim showing that the

17 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, a complaint must plead “enough facts

18 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

19 570 (2007). Plausibility does not mean probability, but it requires “more than a sheer possibility

20 that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009). A complaint

21 must therefore provide a defendant with “fair notice” of the claims against it and the grounds for

22 relief. Twombly, 550 U.S. at 555 (quotations and citation omitted).

23 In considering a motion to dismiss, the court accepts factual allegations in the complaint as

24 true and construes the pleadings in the light most favorable to the nonmoving party. Manzarek v.

25 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); Erickson v. Pardus, 551

26 U.S. 89, 93–94 (2007). However, “the tenet that a court must accept as true all of the allegations

27 contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements

1 678.

2 If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no

3 request to amend the pleading was made, unless it determines that the pleading could not possibly

4 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en

5 banc) (citations and quotations omitted). A court “may exercise its discretion to deny leave to

6 amend due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated failure to

7 cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . .,

8 [and] futility of amendment.’” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892–93 (9th

9 Cir. 2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

10 IV. DISCUSSION

11 The TCPA makes it unlawful for any person to make a call (other than for emergency

12 purposes) using any automatic telephone dialing system (ATDS) or an artificial or prerecorded

13 voice made without the prior express consent of the called party. 47 U.S.C. § 227(b)(1)(A)(iii).

14 To make a claim under the TCPA, a plaintiff must show: “(1) the defendant called a cellular

15 telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s

16 prior express consent.” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir.

17 2012).

18 The Court finds Plaintiff has adequately pled the first element, as he alleges Defendant

19 called and texted his cell phone 97 times. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946,

20 954 (9th Cir. 2009) (a text message is a “call” for purposes of the TCPA). However, the second

21 and third elements are disputed.

22 Defendant argues Plaintiff’s claim fails because he does not adequately allege it used an

23 ATDS to call him. Mot. at 3-5. The Court agrees. The TCPA defines ATDS as “equipment that

24 has the capacity (A) to store or produce telephone numbers to be called, using a random or

25 sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1); Facebook,

26 Inc. v. Duguid, 592 U.S. 395, 399 (2021) (“To qualify as an ‘automatic telephone dialing system,’

27 a device must have the capacity either to store a telephone number using a random or sequential

1 Borden v. eFinancial, LLC, 53 F.4th 1230, 1234 (9th Cir. 2022) (“[A]n autodialer must randomly

2 or sequentially generate and dial a telephone number.”). A plaintiff “need not somehow have

3 inside knowledge of a defendant’s operations and equipment to survive dismissal under Rule

4 12(b)(6), rather, he or she merely must proffer factual allegations that support a reasonable

5 inference that an ATDS was used.” Abante Rooter & Plumbing, Inc. v. Pivotal Payments, Inc.,

6 2017 WL 733123, at *8 (N.D. Cal. Feb. 24, 2017) (citing Brown v. Collections Bureau of Am.,

7 Ltd., 183 F. Supp. 3d 1004, 1005 (N.D. Cal. 2016)).

8 In his complaint, Plaintiff does not allege random or sequential number generation.

9 Plaintiff does not allege Defendant’s equipment generated telephone numbers at all, much less

10 randomly or sequentially. Instead, Plaintiff asserts Defendant “violated the TCPA by texting and

11 calling Plaintiff 97 times using automatic telephone dialing system,” Compl. ¶ 8, and recites

12 statutory language in support of this allegation, id. ¶¶ 10–11. That is the exact kind of conclusory

13 pleading Twombly and Iqbal reject. See Borden, 53 F.4th at 1233–36 (affirming dismissal where

14 allegations did not plausibly support ATDS use under Duguid); Cupp v. ABC-Amega, Inc., 2025

15 WL 932970, at *2 (N.D. Cal. Mar. 26, 2025) (granting motion to dismiss Cupp’s TCPA claim

16 where he alleged the defendants used an ATDS without additional factual support); Patton v. CBC

17 Settlement Funding, LLC, 2022 WL 22972603, at *2–3 (C.D. Cal. Nov. 17, 2022) (granting

18 motion to dismiss where ATDS allegations were conclusory and did not plausibly allege random

19 or sequential number generation).

20 In his opposition, Plaintiff attached screenshots of a log he created with the dates and times

21 of the alleged calls/texts (Ex. A) and screenshots of text messages (Ex. B). He argues: “These are

22 exactly the kind of circumstantial facts courts treat as sufficient to infer automated equipment.”

23 Opp’n at 7. However, courts “may not consider material outside the pleadings when assessing the

24 sufficiency of a complaint under Rule 12(b)(6).” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d

25 988, 998 (9th Cir. 2018). Plaintiff himself acknowledges that such extrinsic evidence is improper

26 at this stage. See Opp’n at 8 (“On a Rule 12(b)(6) motion, the Court is limited to the complaint,

27 documents incorporated by reference, and judicially noticeable materials.”). As Plaintiff did not

] As the Ninth Circuit has recognized, “[w]hile we all wish for fewer calls and messages

2 from marketers, [the Court is] limited to the bounds of the TCPA.” Borden, 53 F.4th at 1236.

3 Thus, where the pleaded facts do not plausibly support the random or sequential number

4 || generation requirement, dismissal must follow. See Cupp v. ABC-Amega, Inc., 2025 WL 932970,

5 at *2 (“Without additional factual support, the Court must conclude that Cupp has not adequately

6 || pleaded an ATDS was used.”). Plaintiff fails to plead the second element of a TCPA claim, and

7 || the Court therefore need not reach the issue of whether he consented to the calls to determine

8 dismissal of the complaint is appropriate. Accordingly, the motion to dismiss is GRANTED.

9 Vv. CONCLUSION

10 For the reasons stated above, the Court GRANTS Defendant’s motion to dismiss WITH

11 LEAVE TO AMEND solely for the purpose of adding allegations related to his TCPA claim. See

12 || Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (A

13 || plaintiff may amend a complaint only to allege “other facts consistent with the challenged

14 || pleading.”). Any amended complaint must be filed by April 27, 2026.

2 15 Plaintiff may wish to seek assistance from the Federal Pro Bono Project, a free service

a 16 || offered by the Justice & Diversity Center of the Bar Association of San Francisco. You may

2 17 || request an appointment by emailing fedpro@sfbar.org or calling 415-782-8982. At the Legal

Z 18 || Help Center, you will be able to speak with an attorney who may be able to provide basic legal

19 || help but not representation. More information is available at https://www.cand.uscourts.gov/pro-

20 || se-litigants/.

21 Plaintiff may also wish to obtain a copy of this District’s Handbook for Litigants Without a

22 || Lawyer, which provides instructions on how to proceed at every stage of your case. The

23 handbook is available in person at the Clerk’s Office and online at:

24 || https://www.cand.uscourts.gov/pro-se-litigants/.

25 IT IS SO ORDERED.

26 Dated: March 27, 2026

27 AV. |\"4 _

THOMAS S. HIXSON

28 United States Magistrate Judge