“Beyond Call Volume” – Sixth Circuit Re-affirms Twombly/Iqbal Pleading Threshold for TCPA Autodialer & Prerecorded-Voice Claims

Introduction

Antonio Lynn Fluker, Jr. v. Ally Financial, Inc., No. 24-1023 (6th Cir. July 2, 2025) (unpublished opinion)

While incarcerated, Antonio Lynn Fluker, Jr.—a frequent pro se litigant—filed a Telephone Consumer Protection Act (“TCPA”) action alleging that Ally Financial, Inc. made more than 800 unlawful collection calls to his cellular phone between February 2021 and September 2022. He pursued statutory liquidated damages ($300,000) and exemplary punitive damages ($1 million). The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, finding the pleading “threadbare” and conclusory. The Sixth Circuit affirmed, stressing that:

• Mere call volume does not plausibly establish use of an “automatic telephone dialing system” (ATDS) or a “prerecorded/artificial voice.”
• Even pro se litigants must supply minimal factual allegations that permit a reasonable inference of liability under Twombly and Iqbal.
• A plaintiff cannot amend by interjecting new statutory claims (here, the Michigan Consumer Protection Act) in a response brief to a motion to dismiss.

Summary of the Judgment

The Sixth Circuit (Judges Boggs, Gibbons & Nalbandian; opinion by Judge Nalbandian) affirmed the Rule 12(b)(6) dismissal with prejudice. Key holdings:

1. ATDS Allegation: The complaint only parroted statutory language and cited high call volume; it failed to allege facts indicating the dialing equipment used a “random or sequential number generator” as required by Facebook, Inc. v. Duguid, 592 U.S. 395 (2021).
2. Prerecorded-Voice Allegation: Likewise, high call volume alone could not reasonably support an inference that prerecorded voices were used; plaintiff offered no call-specific descriptors (e.g., lack of human interaction, dead air, identical message content).
3. Pro Se Standard: Liberal construction does not relieve a pro se plaintiff from pleading “plausible” facts; conclusory assertions remain insufficient.
4. MCPA Claim: A new statutory theory raised only in a brief cannot amend a complaint; the district court correctly ignored it.

Analysis

Precedents Cited and Their Influence

• Ashcroft v. Iqbal, 556 U.S. 662 (2009) & Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) – Provide the “plausibility” pleading standard. The panel relied heavily on these cases to evaluate whether Fluker moved his allegations “across the line from conceivable to plausible.”
• Facebook, Inc. v. Duguid, 592 U.S. 395 (2021) – Narrowly defines “automatic telephone dialing system” as equipment using a random or sequential number generator. The Fluker opinion applies Duguid to reject allegations that do not speak to “random/sequential” generation.
• Charvat v. EchoStar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010) – Cited for the proposition that a single violative call can trigger liability; mentioned only to show the panel assumed arguendo that some calls occurred while Fluker was not incarcerated.
• Bates v. Green Farms Condominium Ass’n, 958 F.3d 470 (6th Cir. 2020) & Guzman v. DHS, 679 F.3d 425 (6th Cir. 2012) – Reinforce that new claims cannot be raised through briefing rather than amendment.
• Pro se construction cases: Boswell v. Mayer, 169 F.3d 384 (6th Cir. 1999); Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012); Prime Rate Premium Fin. Corp. v. Larson, 930 F.3d 759 (6th Cir. 2019) – Illustrate the limits of leniency toward pro se litigants.

Legal Reasoning of the Court

1. Pleading Insufficiency – The panel treated Fluker’s assertions (“Ally called my cell phone using an ATDS” and “using a prerecorded voice”) as legal conclusions. Without additional factual context—date-specific call details, audible indicators, or description of system features—no reasonable inference of liability could be drawn.
2. Specificity Requirement Post-Duguid – Because ATDS liability now hinges on random or sequential number generation, any plausible complaint must allege facts suggesting that technology, not mere mass dialing from a stored list.
3. Call Volume Not Dispositive – Excessive calls, while suspicious, do not inherently reveal the mechanism or voice technology used; legitimate dialers or manual calling could produce similar volume.
4. Prejudice & Futility – Dismissal with prejudice was justified: the defects were substantive (lack of factual basis) and an amended pleading had not been proffered despite plaintiff’s multiple opportunities.

Impact on Future Litigation

Although unpublished, the decision is persuasive authority within the Sixth Circuit and signals to district courts nationwide that:

• Post-Duguid, plaintiffs must bridge the gap between call frequency and the statutory concept of an ATDS—e.g., allege “dead air,” identical recorded messages, clicks, or inability to interact with a live agent.
• High-volume debt-collection suits may face early dismissal when they rely solely on numeric tallies.
• Pro se status will not soften the plausibility threshold; courts will continue to safeguard judicial resources by policing conclusory pleadings.
• Debt collectors and creditors gain an additional shield against boilerplate TCPA complaints, possibly reducing nuisance filings.
• Practitioners drafting TCPA complaints should gather call logs, voicemail recordings, or firsthand observations before filing.

Complex Concepts Simplified

• Automatic Telephone Dialing System (ATDS) – A device that dials phone numbers produced by a “random or sequential number generator.” Think of a machine that spits out numbers like a lottery draw, then calls them automatically.
• Pleading “Plausibility” – Under Twombly/Iqbal, a complaint must contain enough facts to make the claim believable, not just possible. The court asks: “Can we reasonably see how the defendant might be liable?”
• Pro Se Plaintiff – A litigant representing himself. Courts read such pleadings generously, but the litigant still must supply the basic facts.
• Prerecorded or Artificial Voice – A message spoken by a computer or recorded human that is played back automatically when the call connects. Red flags include identical wording every time, no ability to interrupt or ask questions, or lengthy silence before the message starts.
• Rule 12(b)(6) Dismissal – The lawsuit is thrown out at the pleading stage because, even if everything alleged is true, the facts do not add up to a legal claim.

Conclusion

Key Takeaways:

1. The Sixth Circuit reaffirmed that the Twombly/Iqbal standard applies with equal force to TCPA cases and to pro se litigants.
2. Call volume, standing alone, is not a proxy for ATDS or prerecorded-voice usage; plaintiffs must allege call characteristics tied to the statutory definitions.
3. Post-Duguid, any viable ATDS allegation must reference random or sequential number generation, or at least facts pointing plausibly in that direction.
4. Attempting to add new statutory theories through briefing is ineffective; proper amendment procedures must be followed.
5. The opinion, though unpublished, will likely discourage formulaic TCPA pleadings and may lead to an uptick in early dismissals of similar pro se or thinly-pled cases.

Ultimately, Fluker v. Ally Financial serves as a practical primer on how not to plead a TCPA case—and a warning that courts will scrutinize allegations for factual heft before unlocking the powerful statutory damages the TCPA offers.