As we have reported here and here, courts throughout the country, including most notably the Eleventh Circuit in Salcedo v. Hanna, have grappled with the question of whether a single unsolicited text message may constitute sufficient injury to satisfy the constitutional standing requirement in Article III. The Salcedo court held that one text message does not suffice.
But what about a single fax? That was the question recently presented to the Middle District of Florida in Daisy, Inc. v. Mobile Mini, Inc., No. 20-0017 (M.D. Fla. Sept. 24, 2020). The court similarly found that, at least under the relatively unique circumstances of the case, a single fax did not confer standing.
The Eastern District of Pennsylvania recently dismissed a serial TCPA plaintiff’s complaint sua sponte because the court concluded that it did not have personal jurisdiction over the defendant. Perrong v. REWeb Real Estate, LLC, No. CV 19-4228, 2020 WL 4924533 (E.D. Pa. Aug. 21, 2020). The case demonstrates that courts are becoming increasingly frustrated with “professional plaintiffs” who repeatedly file TCPA claims against businesses and pressure them “to settle independent of the merits of the case.” Id. at *3.
We have previously written about decisions that dismissed TCPA claims because plaintiffs could not allege or prove facts establishing that the party making the offending calls was acting as an agent for the named defendant. The Northern District of Illinois recently applied these principles to dismiss claims against a defendant for lack of personal jurisdiction.
For years, the plaintiffs’ bar has crammed thousands of non-forum class members into a single action in order to more easily justify broader discovery requests, and to more quickly aggregate statutory damages. And many defendants and courts simply assumed that plaintiffs could do so. But that assumption was called into question by Bristol-Myers Squibb Co. v. Superior Court of California, a mass tort case in which the Supreme Court held that federal courts do not have specific personal jurisdiction over the nonresidents’ claims merely because resident plaintiffs “allegedly sustained the same injuries as did the nonresidents.” Continue reading
Last week, the Eastern District of North Carolina denied a TCPA defendant’s personal jurisdiction challenge, finding unpersuasive its argument that it did not purposefully avail itself of the protections of North Carolina law because it did not intentionally make phone calls to Plaintiff in North Carolina. See Hicks v. Houston Baptist Univ., No. 5:17-CV-629-FL, 2019 WL 96219, at *4–5 (E.D.N.C. Jan. 3, 2019). Continue reading
Nearly three years ago, in Campbell-Ewald Co. v. Gomez, the Supreme Court held that claims are not mooted by unaccepted offers of complete relief under Rule 68 because they create neither an “obligation” to provide nor an “entitlement” to receive any relief. But the Court expressly left open the possibility that depositing the full amount of a plaintiff’s individual claim in an account payable to the plaintiff might be enough. Continue reading
After the Supreme Court held in Campbell-Ewald v. Gomez that merely offering to make a payment will not moot a claim, we predicted that defendants would explore various procedural mechanisms for arguing that actually making a payment will moot a plaintiff’s claim. Indeed, although the Supreme Court did not reach the issue, its decision strongly suggested that plaintiffs who have received complete relief—as opposed a mere offer of complete relief—no longer have live cases or controversies as required by Article III. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (Feb. 9, 2016) (“We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.”). This week, however, a panel of the United States Court of Appeals for the Seventh Circuit held that not even tendering funds into a court-monitored interest-bearing account is enough to moot a claim. See Fulton Dental, LLC v. Bisco, Inc., No. 16-3574 (June 20, 2017). What, if anything, would be enough it did not say. Continue reading
On November 7, 2016, a Southern District of Florida court sua sponte declined to exercise its supplemental authority and dismissed a plaintiff’s state law claims in a TCPA action. In Travis v. Residential Credit Solutions, Inc., the plaintiff alleges that defendant placed hundreds of calls to his cellular phone using an ATDS in an effort to collect a debt. From these allegations, the plaintiff filed an individual complaint consisting of three claims: two claims asserting violations of the Florida Consumer Collection Practices Act (“FCCPA”) and one claim asserting a violation of the TCPA. Continue reading
The Second Circuit last week confirmed that entries of judgment satisfying an individual plaintiff’s claims moot TCPA class actions.
In Bank v. Alliance Health Networks, LLC, No. 15-cv-4037 (2d Cir. Oct. 20, 2016), the Second Circuit affirmed the dismissal of the class claims after an entry of judgment, pursuant to the defendants’ offer of judgment, rendered the class claims moot. The Second Circuit acknowledged that the Supreme Court held in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) that an unaccepted offer of judgment does not moot a plaintiff’s claims. “But where judgment has been entered and where the plaintiff’s claims have been satisfied, as they were here when [the plaintiff] negotiated the check, any individual claims are rendered moot.” Continue reading