dismissing mr floors for cement a complaint with prejudice for failing to properly allege that not in that telephone dialing system and each e d s was used to send a series of unsolicited text messages in our position  was it came up here after a rule fifty six motion for summary judgment discovery was completed an expert opinions on both sides and the court on the lower court determined that as a matter of law it could be determined if an e t s was used and this court said that it was actually a inference that this text message was used with with and with any t d s and i think one of the important points to point out is at the pleading stage the plaintiff has no idea what type of dialing system was used until they're allowed to conduct discovery  very fact specific expert driven analysis which in this case was denied because we couldn't get past the you know vote what what use what role should the f c c these pronouncements about these types of  some guide i think that the court review that the f c c has decisions that that it's at least a very broad definition of any t d s let's take it in the statute first of all there has to be capacity there's no doubt is there that there was capacity to store or produce phone numbers to be called i've done these cases almost exclusively for many years your honor my personal belief i'm sorry about th and i don't want to mislead the court as far as capacity is concerned at the pleading stage the answer is we don't know we can assume there's capacity but as a key sense right now only mr flores received a text message on his phone he couldn't with with great certainty say that there is absolutely you right now how could you plead at all and if you take that position sure you need information or belief correct but what is your information and believe in that and that goes to pasadena and i think it's the question but the the the correct so if you have a list and you are dramatically go for one number two the next is that sequential yes or that would that would constitute sequential that that means you win the case well i would like to think so but but again we don't have th the system it's an expert driven analysis where we'd have to know what what dialing system it was we'd have to have the manual and our expert would have pine as to doesn't qualify as an e t s and so we have some evidence i mean this isn't a personalized text message word that i would send to my mr floor as a numerous occasions opted out of those text messages and instantaneously there was there's a response acknowledging that opt out and saying you're not going to get any more text messages although in this case those text messages continued that's all indicative and would give us a good faith belief that there is a dialing system that would likely have the capacity to qualify as an e t s three of our district court denied motions to dismiss on facts substantially similar to this case what role if any had to describe the inference that you want us to draw what's fact and what's inference in your complaint what do we need doing for to get you over the hump sure i think of the the in personal nature of the text message the fact that it set with with an s m s short code messaging service that's indicative of sending call massive call campaign campaigns the fact that there was an opt out request and the fact that he responded to that opt out request with instantaneous response acknowledging that saying that we won't contact you anymore and then subsequent to that there was a series of five text messages going back and forth that were identical with the same stock request in the same response and that's what you put in your pleading yes  but the judge didn't find that was enough so i what i'm saying is beyond that if we need to have anything beyond that what or what should we infer you are entitled to infer something that reasonably flows and follows from what you so what are you asking us to infer that's not stated specifically in your complaint i think we have pled enough to get over that hump with the pleading the way it stands i don't think there are any inferences that are required we should we should determine whether you've stated a cause of action based solely on the expressed language of the complaint is that what you're asking us to do i would ask that there would be enough with the complaint with with the exception if there was a requirement to be more the least get some discovery as to the dialing system because it's a separate issue in terms of the pleading is it your position that you have stated a cause of action based upon the express language of the complaint with out our well the district judge inferring anything from those facts i would argue that we have your honor if i could just reserve the last minute for an half or a bottle good afternoon your honour's the machine in peterson on behalf of the defendant and absolutely a dear international l l c you are as i'd like to begin with what happened here in this case and i would submit that if the district court h reached its decision based upon the initial complaint dismissed the initial complaint without leave to amend we would be an entirely different situation that we're in right now what the district court properly did was the district court said you haven't alleged facts showing a t t s you merely alleged legal conclusions i'm going to give you another chance the district court gave them another chance and they came black with a first amended complaint that in the district court's own words was virtually identical to the original complaint and in fact it had no other allegations other than instead of just merely stating that an a t t s an automatic telephone dialing system was used within the meaning of the t c p a which was a bare bone language of the original complaint the first amended complaint added that just the same sort of statutory language that went on to define what it automatic telephone dialing system is and i'm paraphrasing here but a system that has the capacity to store produced numbers randomly or sequentially which again is merely a statement of what found in the statute itself so no facts and when the district court judge again challenge them in oral argument to come up with some additional facts that would survive rule eight plaintiff's counsel said that he couldn't come statement with enough facts to show plausibility so in challenge to the first ruling there was an amendment and the plan to set out were alleging and it was showing the plausibility is enough to show plausibility is not the question it's enough to show a reasonable inference and with it's in it's within the sound discretion of the trial court to draw a reasonable trial judge's me included often put in requirements of specificity in pleading and allegations of complaints that we don't really like a cause of action we don't really like and the courts of appeals  shot them down it's true in the second circuit where i'm from joe here isn't the same coming thing but again when i don't really likes these statutes but they're in the book and they're playing and you don't need a brief response or perhaps there's an inference that it's some sort of an automated response to a stop request and i would agree that probably a reasonable inference but as the district court correctly pointed out automation isn't enough we have two alleged facts showing capacity to dial randomly or sequentially where there's an inference you i'm sorry i'm not please look at paragraph nine of the amended complaint despite the above stop message which plenty of s on october three each time the venite saying a plan of saying stop each time a defendant saying ok and each time defendant not heeding it suggesting to me that it's a fair inference that the automatic system over the road the manual system and therefore suggesting an automatic feature to the system and capacity and the district court of course i believe correctly concluded that the inference there is only an inference of automation and not necessarily an inference of sequential or random dialing and if you're looking at inferences although it probably pretty good inference that with respect to mass marketing messages where there is a much higher level of randomness there's often a high level of sequential text messaging or calling with respect to that collection it's different it's a specific individual with respect to a specific usually in a specific amount even here the text message of course referenced a specific reference number so the inference but doesn't that actually improve your opponent's case the fact that there was this repeated dunning even separate statutes that deal with that but the reality is  doesn't that show it's an inference you're trying to pressure him keep coming back it is automated same message same result what's why isn't that inference as my colleague suggest enough but i would say that automation like the district court found isn't enough it most what we have here is an inference of automation but it doesn't necessarily follow that automation necessarily means capacity what about the f c c rulings and its determinations in that regard well the f c c and again i agree with my posing council here has spoken most recently to the issue of capacity again that issue including a t t s issues currently up on appeal to the d c circuit a rulin expected quite soon the f c c is fundamentally a political body it was deeply divided over its two thousand and fifteen pronunciation doing that with everything to do with capacity not their capacity but the  so you know i don't know that we give too much weight there given what's happening with the d c circuit we don't know how they're going to rule with respect to whether or not the f c c properly issued its decisions this is something to complain and was fine this is not a brief we're just talking about whether it satisfies threshold right and it's important to remember that a court of appeals of like guerrilla fighter during the daytime when the battles going on we hide up in the hills and then at night we come down and shoot the wounded drifts it really isn't that hard especially for plaintiff's attorneys that are very experienced in the t c p a they regularly have experts in these cases they always have experts with respect to the class action t c p ip cases they could have played more facts about a deer about its business they could have looked on its website they could have talked about how debt collectors when they're sending messages almost uniformly i mean they could have alleged us on information believe use modern telephone equipment they could based upon some of their own expert analysis work in communications with their experts have alleged on information and belief that all modern telephone systems have the capacity to dial numbers randomly  hard to allege in good faith money is major to get these i'm sorry or are you just made maybe one case and i'm saying the opportunity to do that was after the original complaint and they didn't and they went right back to the court with the sensually the same allegations and i think the the the district court properly exercised his discretion followed on by the statements in oral argument that there was nothing more to add and simply didn't allow them an additional opportunity the time to do this is not to come and bother your honour's with this in the ninth circuit the time do it and pay real attention to it is when the district court says you have an alleged enough facts come back to me with more facts and then you get past the pleading stage and that for whatever reason was largely ignored and they came back with a sensually the same facts the district court properly dismissed and proper properly exercised his discretion not to allow the if counsel who just admitted spends almost all  time working on these cases if he were to as part of the complaint in the second many complaints and i'm count well i did work on these cases all the time i'm an expert in this area and in my opinion this has all the hallmarks of  collectors that it dear is a sophisticated debt collector it's in the business of debt collection that all debt collectors or virtually all the collectors use modern telephone systems that all or virtually all modern telephone systems have the capacity to dial numbers randomly or sequentially and i'm not saying any of this is true but i think they could have in good faith set on information and belief based upon their vast experience and they have a very very broad interpretation of capacity which does indeed cover you know why my time is short and just just a couple points that the district court you made went out of its way and said that we didn't present an expert at the time of the policing and so i looked at that and what exactly would we get an expert to do he would only or she would only have the information from our client he would know how that information was was transmitted we need to know what type of dialer was for them to be able to properly give an expert opinion what i think it when you talk about inferences what i think is interesting in this case is that the whole across a complaint against the dialing company fees too and so if there wasn't a good faith faith belief that the dialing company in fact using a t v s what would be the relevance of black churches pleading it's called alternative pleading you can deny one hand and save it's