# Tom

> District Court, E.D. New York · August 5, 2026

URL: https://www.frixlaw.com/law-library/cases/11415325

## Case

- **Full name:** David Tom v. Delancey Street Group LLC, MJA Holdings, Inc.
- **Court:** District Court, E.D. New York
- **Decided:** August 5, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X
DAVID TOM,
Plaintiff,

-against- MEMORANDUM & ORDER
26-cv-1150 (JMA) (ST)
FILED
DELANCEY STREET GROUP LLC, MJA CLERK
HOLDINGS, INC., 8/5/202   6 2:53 pm

U.S. DISTRICT COURT
Defendants. EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X LONG ISLAND OFFICE
AZRACK, United States District Judge:
Plaintiff David Tom brings this putative class action against Defendants Delancey Street
Group LLC (“Delancey”) and MJA Holdings, Inc. (“MJA”) pursuant to the Telecommunications
Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227. The Amended Complaint alleges that
Defendants violated the TCPA by sending telemarketing texts to Plaintiff’s cell phone number,
which is listed on the national do-not-call registry. (ECF No. 11 (“Am. Compl.”).)
Before the Court are two motions to dismiss the Amended Complaint, one filed by each
Defendant. (ECF No. 44 (“Delancey Mot.”); ECF No. 49 (“MJA Mot.”).) Plaintiff opposed both
motions. (ECF No. 29 (“Pl. Delancey Opp.”); ECF No. 50 (“Pl. MJA Opp.”).) For the reasons
set forth below, both motions to dismiss are GRANTED.
I. BACKGROUND
A. Relevant Facts
The facts set forth herein are taken from Plaintiff’s Amended Complaint, documents
incorporated by reference in or integral to that pleading, and matters of which the Court may take
judicial notice. See Clark v. Hanley, 89 F.4th 78, 93 (2d Cir. 2023).
Compl. ¶ 19.) Plaintiff alleges that this cell phone number is “a residential, non-commercial

telephone number” that he uses “for personal, residential, and household reasons.” (Id. ¶¶ 19–20.)
Since at least March 2024, Plaintiff’s cell phone number has been listed on the national do-not-
call registry. (See id. ¶ 26.)
Defendant Delancey is New York company that sells debt restructuring services. (Id. ¶ 5.)
Defendant MJA is a New York company that operates a lead-generating telemarketing service.
(Id. ¶ 6.) Delancey hired MJA to generate leads for Delancey through telemarketing. (Id. ¶¶ 43–
47.) MJA also does business under the name “MCA Justice.” (Id.; see also ECF No. 49 at 2.)
On March 6, 2025, MJA sent a text to Plaintiff’s cellphone number that read:
Hi, it’s John with MCA Justice. Would it help if we cut your daily/weekly payments
by 80% and convert to monthly? Reply ‘Yes’ for more information Text STOP to
opt out[.]
(Id. ¶ 33.) Plaintiff replied directly: “Yes.” (Id.) The following exchange ensued:
[MJA:] Can you send me your email so I can forward you what I need to get started.
[Plaintiff:] Sure. David.m.tom@gmail.com
[Plaintiff:] Don’t text me email me only – about to board a plane no cell signal so
WiFi works a lot better
[MJA:] I just emailed you from john@mca-justice.com. The subject line is MCA
Justice. I look forward to working with you. Thank you for the opportunity.
[MJA:] Please confirm receipt.

1 Plaintiff is no stranger to TCPA litigation. Indeed, since September 2022, Plaintiff has filed fifteen TCPA
lawsuits, including this one, in district courts around the country. See Tom v. Modern Concepts Construction LLC,
No. 22-cv-1644 (M.D. Fla. 2022); Tom v. Atlantic Partners Realty Brevard, LLC et al., No. 22-cv-2217 (M.D. Fla.
2022); Tom v. Kloze Mortgage Corp. et al., 22-cv-2218 (M.D. Fla. 2022); Tom v. Transportation Media, Inc., No. 22-
cv-1296 (W.D. Tex. 2022); Tom v. Lead Genesis Partners, LLC, No. 24-cv-417 (M.D. Fla. 2024); Tom v. 7th Ace,
LLC, No. 24-cv-00761 (M.D. Fla. 2024); Tom v. Forbes & York Insurance LLC et al., No. 24-cv-01208 (D. Colo.
2024);. Tom v. Thomas Roofing and Repair Inc., No. 24-cv-01037 (M.D. Fla. 2024); Tom v. Forbes & York Insurance
LLC et al., No. 24-cv-01320 (M.D. Fla. 2024); Tom v. Consider Solar, LLC, No. 24-cv-01100 (E.D. Va. 2024); Tom
v. Local Search Group LLC, No. 24-cv-02887 (S.D. Tex. 2024); Tom v. US Solar Quotes LLC, No. 24-cv-01647
(M.D. Fla. 2024); Tom v. Ellington Service Corporation, et al., No. 24-cv-01859 (M.D. Fla. 2024); Tom v. Premier
Home Solutions, LLC, No. 24-cv-13195 (D. Mass. 2024).
Hi, it’s John at MCA-Justice. Take a look at my email and let me know if you have
any questions. I would like to be able to help you. Have a good night.
(Id.) On March 7, MJA texted:
Hi, it’s John at MCA-Justice. I will be working Saturday and Sunday if you would
like to review my email and discuss any questions you might have. Thank you[.]
(Id.) On March 8, MJA texted:
Hi, it’s John at MCA-Justice. Did you get a chance to review my email?
(Id.) On March 10, MJA texted again:
Hi, it’s John at MCA-Justice. Did you get a chance to review my email?
(Id.) After Plaintiff told MJA, via text, to contact him via email rather than text because he was
about to board a plane, Plaintiff never again responded to MJA via text. (See id.)
Plaintiff alleges that he responded “Yes” to MJA’s initial text “to identify the caller
contacting him illegally using an illegal fictitious name and for no other reason.” (Id. ¶ 34.) The
Amended Complaint includes an excerpt from the email exchange between Plaintiff and

john@mca-justice.com, in which MJA revealed that it is “a marketing arm for Delancey Street”
and that “Delancey Street is the actual Organization that will be handling the MCA Debt
Restructure.” (Id. ¶ 38.)
B. Procedural History
Plaintiff filed suit in the Northern District of New York on May 6, 2025 and filed an
Amended Complaint on July 14, 2025. (ECF No. 11.) The Amended Complaint alleges three
causes of action. Count I alleges that Defendants initiated telephone solicitations to Plaintiff and
other class members’ telephone numbers on the national do-not-call registry, in violation of the
TCPA and 47 C.F.R. § 64.1200(c)(2). (Id. ¶¶ 87–92.) Count II alleges that Defendants initiated

telephone solicitations to Plaintiff and other class members without transmitting required caller
identification information, as required by the TCPA and 47 C.F.R. § 64.1601(e)(1). (Id. ¶¶ 93–
and other class members after they were asked to stop. (Id. ¶¶ 99–102.) All three causes of action

are asserted pursuant to the private right of action set forth in 47 U.S.C § 227(c)(5).
Delancey filed a motion to dismiss Plaintiff’s original Complaint on June 23, 2025, (ECF
No. 8), and a supplemental brief addressing the Amended Complaint on August 8, 2025, (ECF
Nos. 17). On August 22, 2025, MJA filed a motion to dismiss the Amended Complaint. (ECF
No. 28.) Both motions, as originally filed in the Northern District of New York, sought to have
the case dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)
or, in the alternative, dismissed or transferred for improper venue pursuant to Federal Rule of Civil
Procedure 12(b)(3). (ECF Nos. 8, 17, 28.) On February 27, 2026, the Honorable Glenn T.
Suddaby transferred the action to this district, reserving judgment on the motions to dismiss for

decision by this Court. (ECF No. 40.) On April 2, 2026, each Defendant re-filed its fully briefed
motion in accordance with this Court’s Individual Rules. (See ECF Nos. 43, 44, 50 (Delancey
filings); ECF Nos. 46, 47, 48, 49, 51, and 52 (MJA filings).)
II. LEGAL STANDARD
To survive a motion to dismiss brought under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). That standard requires the Court to accept as true all well-pled factual allegations
in the Complaint. See Clark, 89 F.4th at 90. The Court need not accept conclusory assertions,
legal conclusions, or formulaic recitation of a claim’s elements. See, e.g., In re Facebook, Inc.,

IPO Derivative Litig., 797 F.3d 148, 159 (2d Cir. 2015). Determining whether a Complaint states
a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Iqbal, 556 U.S. at 664.
A. Regulatory Framework
Congress passed the Telecommunications Consumer Protection Act of 1991, 47 U.S.C.

§ 227, to restrict unwanted telemarketing solicitations to consumers.
The instant action primarily involves § 227(c) of the TCPA, which authorizes the Federal
Communications Commission (the “FCC”) to prescribe regulations that “protect residential
telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they
object.” See 47 U.S.C. § 227(c)(1); 47 C.F.R. §§ 51, 52, 64. The TCPA and its implementing
regulations thus provide for the creation of “a national database . . . of telephone numbers of
residential subscribers who object to receiving telephone solicitations,” also known as a “do-not-
call registry.” See 47 U.S.C. §§ 227(c)(3); 47 C.F.R. § 64.1200(c)(2). It is a violation of § 227(c)
to “initiate any telephone solicitation to . . . [a] residential telephone subscriber who has registered
his or her telephone number on the national do-not-call registry.” 47 U.S.C. § 227(c)(3)(F); 47

C.F.R. § 64.1200(c)(2).
However, a solicitation does not violate § 227(c) if it is made with the subscriber’s “prior
express invitation or permission.” 47 C.F.R. § 64.1200(c)(2)(ii). A subscriber may revoke prior
consent “by using any reasonable method to clearly express a desire not to receive further calls or
text messages from the caller or sender[,] including by using “the words ‘stop,’ ‘quit,’ ‘end,’
‘revoke,’ ‘opt out,’ ‘cancel,’ or ‘unsubscribe’ sent in reply to an incoming text message[.]” Id.
§ 64.1200(a)(10). If the subscriber uses any words other than those listed, “the caller must treat
that reply text as a valid revocation request if a reasonable person would understand those words
to have conveyed a request to revoke consent[.]” Id. A caller must honor a subscriber’s revocation

“within a reasonable time not to exceed ten business days from receipt of such request.” Id.
than one telephone call within any 12-month period by or on behalf of the same entity in violation

of the regulations prescribed under this subsection[.]” 47 U.S.C. § 227(c)(5).
Additionally, the TCPA’s implementing regulations require that “any person or entity that
engages in telemarketing . . . must transmit caller identification information.” 47 C.F.R.
§ 64.1601(e)(1).
B. Plaintiff Fails to Allege “More Than One” Non-Consensual Call
Defendants argue that the texts did not violate § 227(c)(5) and implementing regulations
because, inter alia: (1) Plaintiff’s cell phone number is not residential, as is required by 47 C.F.R.
§ 64.1200(c)(2), and (2) Plaintiff did not receive “more than one” non-consensual solicitation, as
is required by 47 U.S.C. § 227(c)(5).2 As explained below, the Court concludes that, regardless

of whether Plaintiff’s cell phone number is residential, Plaintiff fails to state a claim because he
has not alleged that he received “more than one” solicitation that violated § 227(c) and its
implementing regulations.
1. Whether Plaintiff’s Phone Number is Residential
Defendants argue that the texts did not violate § 227(c)’s implementing regulations because
Plaintiff’s cell phone number is a business number, not a residential number as Plaintiff alleges.
(See ECF No. 49 at 9–12; ECF No. 44 at 8–11.) Defendants point to evidence outside the
pleadings to support this claim, including the complaint in one of Plaintiff’s fourteen other TCPA
actions, Tom v. Consider Solar, No. 22-cv-01100 (E.D. Va 2024), in which he alleges that a
different phone number is his residential landline. (ECF No. 47 ¶ 5). Plaintiff maintains that the

phone number in the instant action is a personal cell phone number that he does not regularly use

2 It is uncontested that Plaintiff’s phone number was listed on the national do-not-call registry.
residential. (ECF No. 50 at 14–16.)

The Court does not reach the issue of what evidence is admissible at the pleading stage to
determine whether a phone number is residential or commercial because, for reasons discussed
infra, the Court grants the motion to dismiss based on the numerical threshold in § 227(c)(5).
2. Whether Plaintiff Received Multiple Violative Solicitations
If MJA violated § 227(c) at all, it did so only by sending the first text message to Plaintiff’s
registered number, which read: “Hi, it’s John with MCA Justice. Would it help if we cut your
daily/weekly payments by 80% and convert to monthly? Reply ‘Yes’ for more information[.] Text
STOP to opt out[.]” (See Am. Compl. ¶ 33.) As discussed below, MJA’s subsequent texts were
not violations because when Plaintiff replied “Yes” to that first text message, Plaintiff provided
MJA with “prior express invitation or permission” to send him future texts.

Plaintiff does not meaningfully dispute that he consented to receive further texts from MJA
when he replied “Yes” to MJA’s initial text. (See ECF No. 50 at 16–17.) His sole argument is
that he was “merely feigning interest” to determine the identity of the telemarketer for the purposes
of filing a TCPA suit, and that his decision to “play along” is “insufficient to establish prior
consent.” (Id. at 17.) This argument is meritless. Plaintiff claims that the decisions in two out-
of-Circuit district court cases “counsel[] that the Plaintiff may identify that the calls were
solicitations by playing along with a caller to ascertain the nature of its sales pitch, exactly as
alleged here, not consenting[.]” (Id. at 17 (citing Shelton v. Nat’l Gas & Elec., LLC, No. 17-cv-
4063, 2019 WL 1506378, at *4 (E.D. Pa. Apr. 5, 2019); Bradley v. DentalPlans.com, No. 20-cv-

1094, 2024 WL 2865075, at *15 (D. Md. June 6, 2024)).) However, neither of these cases supports
Plaintiff’s contention that a TCPA plaintiff’s subjective intent to “play along” renders irrelevant
his consent to receive solicitations for purposes of § 227(c). In Shelton, the district court held that
purposes had sufficiently alleged a constitutional injury-in-fact. 2019 WL 1506378, at *5. There,

the question was not whether the plaintiff had provided express invitation or permission to receive
solicitations, but whether a missed call can constitute a violation of a TCPA provision not at issue
in the instant action, § 227(b)(1). See id. (explaining that plaintiff was injured because a defendant
violates § 227(b)(1) by making even one call “using any [automated telephone dialing system] . .
. to any telephone number assigned to a . . . cellular telephone service,” regardless of whether the
call was answered). Meanwhile, Plaintiff cites Bradley for the proposition that consent cannot “be
obtained on and during the course of an illegal call.” (ECF No. 50 at 17 (citing Bradley, 2024 WL
2865075, at *15).) Plaintiff’s purported rule is nowhere to be found in that case, which applied
the consent standard found in a different TCPA provision from the one relevant to this case and in

any event is no longer good law. See Bradley v. Dentalplans.com, No. 20-cv-1094, 2026 WL
788856, at *9 (D. Md. Mar. 20, 2026) (granting defendant’s reconsideration motion and holding
that the plaintiff’s oral consent to receive future pre-recorded calls was sufficient such that
defendant did not violate TCPA § 227(b)(1) as a matter of law.)3 Accordingly, neither of the cases
cited by Plaintiff supports his claim that his consent was ineffective because he consented for the

3 In Bradley, the district court initially applied 47 C.F.R. § 64.1200(a)(2)’s requirement that a defendant
accused of making pre-recorded telemarketing calls in violation of TCPA § 227(b)(1) must obtain the recipient’s
“prior express written consent” to receive such calls. 2024 WL 2865075, at *8 (emphasis added). The court
accordingly denied defendant’s motion for summary judgment, finding that there remained a factual dispute as to
whether the plaintiff’s oral consent to receive pre-recorded calls about her Cigna dental plan constituted “prior express
written consent” to receive “win back” calls from Cigna after her plan had expired. Id. at *1–2, 7–8. However, the
court later granted defendant’s reconsideration motion, holding that the § 64.1200(a)(2)’s “prior express written
consent” requirement derived from a misinterpretation by the FCC of TCPA § 227(b)(1)—which requires only “prior
express consent”— and that the FCC’s “written consent” requirement is no longer due any deference from courts after
Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), and McLaughlin Chiropractic Assocs., Inc. v. McKesson
Corp., 606 U.S. 146 (2025). See Bradley v. Dentalplans.com, No. 20-cv-1094, 2026 WL 788856, at *9 (D. Md. Mar.
20, 2026); accord Bradford v. Sovereign Pest Control of TX, Inc., 167 F.4th 809 (5th Cir. 2026). Thus, the court held
that plaintiff’s consent satisfied the statute’s “prior express consent” standard and that defendant’s conduct did not
violate the TCPA.
position.

Plaintiff alternatively argues that, even if he did consent, he quickly revoked that consent
by writing “Don’t text me email me only[,]” thereby making the subsequent six messages non-
consensual in violation of § 227(c). (ECF No. 50 at 20.) This argument is unavailing. Plaintiff
did not revoke his consent to receive further texts by writing “Don’t text me email me only – about
to board a plane no cell signal so WiFi works a lot better[.]” (ECF No. 50 at 20; Am. Compl.
¶ 33.) This text did not contain any of the words that must be treated as presumptive revocations,
such as “stop,” “quit,” or “unsubscribe.” See 47 C.F.R. § 64.1200(a)(10). Indeed, MJA’s initial
text message clearly informed Plaintiff that he could “text STOP to opt out” of further messages,
but he did not do so. (Am. Compl. ¶ 33.) The relevant question is thus whether a reasonable

person would understand Plaintiff’s text to have conveyed a request to revoke his prior consent.
See 47 C.F.R. § 64.1200(a)(10). The Court concludes that any reasonable person would interpret
Plaintiff’s text as an expression of his temporary preference for e-mail over text due to the lack of
in-flight cell service, not as a permanent revocation of his consent to receive text messages.
Notably, all MJA’s subsequent texts to Plaintiff were for the purpose of inquiring whether Plaintiff
had received the requested email or would like to discuss its contents, indicating that this is
precisely how MJA interpreted Plaintiff’s message. (Am. Compl. ¶ 33.) Moreover, even if
Plaintiff’s text could be understood as a revocation request, MJA honored that request within four
days, which is a reasonable period and is significantly less time than the “ten business days”
maximum contemplated by § 64.1200(a)(10).

Accordingly, the Court concludes that Plaintiff gave MJA express permission to send him
text messages from MJA by replying “Yes” to MJA’s initial message and that Plaintiff did not
revoke that consent.
nevertheless satisfies the “more than one” requirement in § 227(c)(5). According to Plaintiff,

§ 227(c)(5) extends a private right of action to plaintiffs who can satisfy two distinct and unrelated
conditions: (1) “a numerosity gate,” which requires that a plaintiff received more than one call
from the same entity within twelve months, and (2) “a violations gate,” which requires that at least
one of those calls violated the regulations promulgated under § 227(c). (ECF No. 50 at 17.)
Plaintiff thus argues that non-violative calls “unquestionably” count toward the “more than one”
numerical threshold. (Id. at 18.).
Plaintiff’s strained interpretation of § 227(c)(5) has no basis in the statutory text or case
law. Again, § 227(c)(5) extends a private right of action to any individual who received “more
than one telephone call within any 12-month period by or on behalf of the same entity in violation

of the regulations prescribed under [§ 227(c).]” 47 U.S.C. § 227(c)(5) (emphasis added). The
plain meaning of this text requires more than one telephone call that violates § 227(c)’s
implementing regulations. If Congress had intended to say “more than one call, with at least one
call in violation of the regulations[,]” it would have done so. See Dean v. United States, 556 U.S.
568, 572 (2009) (“[Courts] ordinarily resist reading words or elements into a statute that do not
appear on its face.” (quoting Bates v. United States, 522 U.S. 23, 118 (1997)).) Plaintiff cites a
single out-of-Circuit district court case, Gibbs, in support of his position, and even that case does
not say what Plaintiff claims. (See ECF No. 50 at 18 (citing Gibbs v. SolarCity Corp., 239 F.
Supp. 3d 391, 397 (D. Mass. 2017).) Although the plaintiff in Gibbs argued that a non-violative
call can count toward § 227(c)(5)’s numerical threshold, the court did not decide the question

because it concluded that the plaintiff had received multiple violative calls. See Gibbs, 239 F.
Supp. at 397 (“The complaint alleges numerous unsolicited calls after [plaintiff’s] first revocation
of consent. Certainly ‘more than one,’ which is all that is required.”). This Court has not identified
courts widely assume that multiple violative calls are required to state a claim under § 227(c)(5).

See, e.g., Silva v. Seven Rock Life Corp., No. 23-cv-6407, 2024 WL 3228437, at *5 (E.D.N.Y.
June 28, 2024) (holding that plaintiff stated a claim under § 227(c)(5) where she alleged “that she
received more than one unsolicited telephone solicitation” to her registered number); Gillam v.
Reliance First Cap., LLC, No. 21-cv-4774, 2023 WL 2163775, at *3 (E.D.N.Y. Feb. 22, 2023)
(dismissing § 227(c)(5) claim because, though plaintiff alleged multiple calls, he failed to allege
that more than one of the calls was a “solicitation” as required by § 227(c)); Greene v. Select
Funding, LLC, No. 20-cv-07333, 2021 WL 4926495, at *5 (C.D. Cal. Feb. 5, 2021) (similar).
To the extent that Plaintiff argues that the “more than one” requirement is satisfied by his
allegation that all of MJA’s texts violated the TCPA regulations’ caller identification requirement,

47 C.F.R. § 64.1601(e)(1), the Court notes that there is no in-Circuit case law addressing whether
such violations can support a claim under the private right of action in 47 U.S.C. § 227(c)(5).
Other district courts are divided on the question because, when the FCC passed § 64.1601(e) in
2003, the agency did not specify which subsection of the TCPA the regulation implements.
Compare, e.g., Worsham v. Travel Options, Inc., No. 14-cv-2749, 2016 WL 4592373, at *4–5, 7
(D. Md. Sept. 2, 2016), aff’d, 678 F. App’x 165 (4th Cir. 2017) (holding that § 64.1601(e)(1)
violations are not actionable under § 227(c)(5) because “[a]ny violation of § 64.1601(e)(1) is a
violation of technical and procedural standards under subsection d, and as earlier noted, no private
right of action exists under [that subsection]”); Meyer v. Capital Alliance Group, No. 15-cv-2405,
2017 WL 5138316, at *17 (S.D. Cal. Nov. 6, 2017) (same); Griffin v. Am.-Amicable Life Ins. Co.

of Texas, No. 24-cv-00243, 2024 WL 4333373, at *3 (D. Or. Sept. 27, 2024) (same), with, e.g.,
Dobronski v. Selectquote Ins. Servs., No. 23-cv-12597, 2025 WL 900439, at *3 (E.D. Mich. Mar.
25, 2025) (disagreeing with the “majority approach” and concluding that § 64.1601(e)(1) was most
actionable under § 227(c)(5)); Newell v. JR Cap., LLC, 791 F. Supp. 3d 571, 582 (E.D. Pa. 2025)

(same). There being no controlling precedent on this question, this Court is persuaded by the
majority approach, which finds there is no private right of action given § 64.1601(e)(1)’s silence
on the matter. See Meyer, 2017 WL 5138316, at *17 (citing Ziglar v. Abbasi, 582 U.S. 120, 133,
(2017)).
In sum, because Plaintiff received only one solicitation from MJA that violated § 227(c)’s
implementing regulations, Plaintiff fails to state a claim for relief pursuant to the private right of
action in § 227(c)(5), which requires “more than one” violative call. Because the Court grants the
instant motions to dismiss on this ground, the Court does not reach the other questions raised by
the motions.4

C. Leave to Amend
In the conclusion of each of his opposition briefs, Plaintiff requests leave to file a Second
Amended Complaint. (See ECF No. 29 at 25; ECF No. 50 at 25.) “A court should freely give
leave when justice so requires, but it may, in its discretion, deny leave to amend for good reason,
including futility, bad faith, undue delay, or undue prejudice to the opposing party.” MSP
Recovery Claims, Series LLC v. Hereford Ins. Co., 66 F.4th 77, 90 (2d Cir. 2023) (affirming denial
of leave to amend). “Futility is a determination, as a matter of law, that proposed amendments

4 Defendants make several other arguments in support of their motions to dismiss. For instance, Delancey
argues that it cannot be held directly or vicariously liable for text messages sent by MJA. (ECF No. 44 at 11–20.)
Delancey also argues that the Amended Complaint fails to state a claim that Defendants did not honor Plaintiff’s do-
not-call request within a reasonable time. (Id. at 22–24.) Most notably, MJA argues that the text messages MJA sent
to Plaintiff are not actionable because they are not “telephone calls” within the scope of § 227(c)(5). (ECF No. 49 at
5–9.) The Court notes that the Seventh Circuit recently became the first Court of Appeals to decide this question,
holding that text messages are not telephone calls for purposes of § 227(c)(5). Steidinger v. Blackstone Med. Servs.,
No. 25-cv-2398, 2026 WL 2028517, at *5 (7th Cir. July 14, 2026). But see Wilson v. Better Mortg. Corp., 811 F.
Supp. 3d 631 (S.D.N.Y. 2025) (concluding that text messages are covered by Section 227(c)(5)); Silva v. Seven Rock
Life Corp., No. 23-cv-6407, 2024 WL 3228437, at *5 (E.D.N.Y. June 28, 2024) (treating text messages as telephone
calls for purposes of § 227(c)(5)). The instant motions do not require this Court to decide whether text messages are
covered by § 227(c)(5) because, even if they do count, Plaintiff has not met the provision’s numerical threshold.
Civil Procedure.” In re Tribune Co. Fraudulent Conv. Litig., 10 F.4th 147, 175 (2d Cir. 2021)

(affirming denial of leave to amend).
Here, leave to amend would be futile because Plaintiff has already provided screenshots of
the full text exchange between himself and MJA, (see Am. Compl. ¶ 33), and the Court has
concluded that those texts are insufficient as a matter of law to state a claim under § 227(c)(5) of
the TCPA. Plaintiff has not identified any facts that, if added to the Second Amended Complaint,
would help him to meet the pleading standard. “Denial of leave to amend is proper ‘where the
request gives no clue as to how the complaint’s defects would be cured.’” Noto v. 22nd Century
Grp., Inc., 35 F.4th 95, 107 (2d Cir. 2022) (quoting Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo
Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015)) (denying leave to amend where plaintiffs made the

request in a conclusory fashion and only in the conclusion to their opposition brief); see also Oden
v. Bos. Sci. Corp., 330 F. Supp. 3d 877, 904 & n.4 (E.D.N.Y. 2018) (“Plaintiff’s request to amend,
contained solely in his opposition memorandum, is procedurally defective since ‘a bare request to
amend a pleading contained in a brief, which does not also attach the proposed amended pleading,
is improper under Fed. R. Civ. P. 15.’”) (quoting Koehler v. Metro. Transportation Auth., 214
F. Supp. 3d 171, 178 (E.D.N.Y. 2016)).
IV. CONCLUSION
For the reasons articulated above, Plaintiff’s claims are hereby DISMISSED with prejudice
and without leave to amend. The Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: August 5, 2026
Central Islip, New York
/s/ JMA
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11415325. Public record. Not legal advice.