W.D.N.Y. Court Dismisses Claim, Finding a School District Is Not a “Person” Under the TCPA, Plaintiff Appeals

The Western District of New York in Clark v. Buffalo City School District, Case No. 1:21cv00700, 2021 WL5764703 (W.D.N.Y. Oct. 28, 2021) recently granted a motion to dismiss because the defendant (a school district) was not a “person” within the meaning of the TCPA and could not be liable under the Act.  As we previously explained here, this decision creates a significant obstacle for plaintiffs who wish to go after school districts and other government actors for alleged TCPA violations.

Plaintiff alleged that Buffalo City School District violated the TCPA when it called and left voicemails on his cell phone.  Buffalo City School District moved to dismiss Plaintiff’s complaint arguing, among other things, that it was not a “person” within the meaning of the TCPA and could not be liable under the Act.  The Court agreed (without reaching the school district’s other arguments).

The Court first noted that the applicable definition of “person” is found at 47 U.S.C. 153(39), and defines the term as follows: “the term ‘person’ includes an individual, partnership, association, joint-stock company, trust, or corporation.”  Id. at *1.  The Court further relied on a prior case from the Middle District of Florida—Lambert v. Seminole County School Board, 2016 WL 9453806, (M.D. Fla. 2016)—which refused to extend the meaning of “person” to a school board and held that “[c]onspicuously absent from this definition of ‘person’ is any mention of governmental entities, let alone a phrase that may reasonably be construed as encapsulating a sovereign.”  The court rejected the plaintiff’s argument that the term “includes” in the definition of “person” enlarged the definition to encompass the school district, explaining that “while the list is not exhaustive, it indicates that the meaning of ‘person’ here is limited to private, non-governmental entities.”  Accordingly, the Court dismissed Plaintiff’s Complaint.

Following the decision of the District Court, the plaintiff appealed to the Second Circuit.  That appeal is currently pending as Clark v. Buffalo City School District, Case No. 21-2932.

The decision is an important reminder for governmental entities targeted in TPCA class actions that they have a solid ground for dismissal before discovery.

Justin O. Kay

About the Author: Justin O. Kay

Justin Kay advises and defends business clients regarding their interactions and communications with consumers. He appears regularly on behalf of clients before federal and state courts, federal agencies and independent self-regulatory bodies, such as the National Advertising Division of the Better Business Bureau. Justin’s practice focuses on defending clients in the growing number of complex class actions arising under federal and state consumer protection and privacy laws such as the federal Telephone Consumer Protection Act, the Illinois Biometric Information Privacy Act and the California Consumer Privacy Act. He is a deputy leader of the litigation practice group.

Kevin H. DeMaio

About the Author: Kevin H. DeMaio

Kevin DeMaio represents a wide range of clients in civil litigations. Kevin’s experience includes a variety of complex commercial and business disputes, including disputes involving contracts, commercial leases and consumer class actions.

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