In a recent decision by the Southern District of California, summary judgment was entered in favor of a second-hand fashion retailer, Poshmark, in a putative class action. The court concluded that the user of the app, not Poshmark, had “made the calls” that invited the plaintiff to use the mobile app. See Reichman v. Poshmark, Inc., No. 16-2359, 2017 U.S. Dist. LEXIS 73769, at *11 (S.D. Cal. May 15, 2017). Continue reading
The Northern District of Ohio recently dismissed a TCPA action because the plaintiff failed to allege any facts from which the court could conclude that the defendant was directly or vicariously liable for the alleged calls. See Seri v. CrossCountry Mortgage, Inc., No. 16-01214, 2016 WL 5405257 (N.D. Ohio Sept. 28, 2016).
In Seri, the plaintiff alleged that defendant Direct Source – a telemarketing vendor – made at least twenty unsolicited telemarketing calls to the plaintiff’s cellular telephone using an ATDS. He further alleged that defendant CrossCountry Mortgage, Inc. (“CrossCountry”) regularly had third-party telemarketers make telemarketing calls on its behalf and had an “extensive relationship” with Direct Source. Continue reading
The Middle District of Florida recently entered summary judgment in favor of a school board, reasoning that it is not a “person” that is subject to suit under the TCPA. See Lambert v. Seminole Cty. Sch. Bd., No. 15-0078 (M.D. Fla. Jan. 21, 2016). The decision creates a potentially insurmountable obstacle for plaintiffs who have taken to setting their sights on school districts and other well intentioned government actors.
In Lambert, the defendant allegedly made 537 calls to the plaintiff’s cellphone shortly after he received a reassigned number. The calls used prerecorded voice prompts and messages that were meant to communicate with prospective substitute teachers, to whom the school district had issued five-digit identification codes. The plaintiff alleged that he was not the intended recipient of the calls and that he neither worked as a substitute teacher nor received an identification code. Continue reading
The United States District Court for the Middle District of Florida (J. James D. Whittemore) recently granted LTD Financial Services, L.P.’s motion for partial summary judgment in a TCPA case involving pre-recorded calls allegedly placed to plaintiff’s cellular telephone. See Estrella v. LTD Financial Services, LP, No. 14-2624, 2015 U.S. Dist. LEXIS 148249 (M.D. Fla. Nov. 2, 2015). As we have previously covered, district courts across the country have demonstrated a willingness to dispose of cases where the records fail to establish that the calls or text messages at issue were sent using an automatic telephone dialing system (“ATDS”).
The Eastern District of North Carolina recently granted a motion compelling arbitration in a TCPA case involving debt-collection calls allegedly made to plaintiff’s cellular telephone. See Rice v. Credit One Fin., No. 5:15-130, 2015 WL 4528933 (E.D.N.C. July 27, 2015). As previously covered here, here, and here, district courts around the country have demonstrated a willingness to order arbitration when TCPA claims fall within the scope of an arbitration agreement.
In a TCPA action involving allegedly unsolicited cellular telephone calls made using an automated telephone dialing system (“ATDS”), the Middle District of Florida ruled that plaintiff had merely recited the elements for a claim under the TCPA rather than allege adequate factual support, and dismissed plaintiff’s complaint without prejudice. See Hunter v. Diversified Consultants, Inc., No. 8:14-cv-2198, 2014 U.S. Dist. LEXIS 165355 (M.D. Fla. Nov. 26, 2014). The complaint contained only the following factual allegations: First, that “[d]uring the past 48 months prior to the filing of this complaint, Defendant contacted Plaintiffs’ [sic] cell phone without express permission with an automated dialing system”; and second, “Defendant called Plaintiffs’ [sic] cell phone intentionally and repeatedly, without express permission and with an automated telephone dialing system…” Id. at *2.
In a TCPA action involving allegedly unsolicited fax advertisements, the Northern District of Illinois applied the plausibility standard articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) to affirmative defenses. See Mussat v. Power Liens, LLC, No. 13-7853, 2014 U.S. Dist. LEXIS 141561 (N.D. Ill. Oct. 6, 2014). We recently discussed a similar TCPA case where the court held that the plausibility standard did not apply, and in doing so sided with the majority view that the textual differences between Rule 8(a)(2) (claims) and Rules 8(b)(1)(A) (defenses) and 8(c)(1) (affirmative defenses) prevented the application of the plausibility standard to affirmative defenses. See Exclusively Cats Veterinary Hospital, P.C. v. Pharmaceutical Credit Corp., No. 13-14376, 2014 U.S. Dist. LEXIS 132440 (E.D. Mich. Sept. 22, 2014). Perhaps because the defendant focused elsewhere in its briefing, the Mussat court simply cited a 25-year-old decision from the Seventh Circuit holding that courts can strike affirmative defenses that do not satisfy federal pleading standards and then recited the requirements of the Twombly/Iqbal plausibility standard. Mussat, 2014 U.S. Dist. LEXIS 141561 at *2.
In a TCPA action concerning allegedly unsolicited fax advertisements, the Eastern District of Michigan recently rejected the argument that the plausibility standard articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) applies to affirmative defenses. See Exclusively Cats Veterinary Hospital, P.C. v. Pharmaceutical Credit Corp., No. 13-14376, 2014 U.S. Dist. LEXIS 132440 (E.D. Mich. Sept. 22, 2014).