Court Rejects Habitual TCPA Plaintiff’s Procedural Gamesmanship

In a recent condemnation of procedural “gamesmanship of the lowest order,” District Judge Michael M. Baylson not only denied a plaintiff’s request for a default judgment and for sanctions, but also sua sponte ordered the plaintiff to show cause why sanctions should not be issued against him.  The case is Perrong v. DVD II Group, LLC, 2023 WL 3229934 (E.D. Pa. May 3, 2023).

Plaintiff Andrew Perrong, who the court described as “a habitual litigant with extensive familiarity with the TCPA and court proceedings,” filed a TCPA action against Defendants DVD II Group, LLC and Kevin Knasel.  Mr. Perrong hired a process server, who successfully served Defendants on March 13, giving them until April 3 to respond according to the federal rules.

A day after the Defendants were served, however, counsel for Defendants, a Mr. Haskins, contacted Mr. Perrong to say that he was authorized to waive service on Defendants.  Mr. Haskins also allegedly stated that the Defendants had not yet been served.  According to Defendants, Mr. Haskins did not become aware of the service on March 13 until after that phone call.  Mr. Perrong provided a waiver of service form, which was signed on March 15 and returned on March 20, extending the Defendants’ time to respond to May 13.

On March 15, Mr. Perrong learned that the Defendants had, in fact, been served by the process server before Mr. Haskins had waived service.  Rather than ask Mr. Haskins what had happened, Mr. Perrong “[u]nilaterally determine[ed]” that Mr. Haskins had lied to him, “ignored all further communication” from him for “several weeks,” “waited in silence for the April 3, 2023 deadline to pass,” and then moved for both default judgment and sanctions.

The court was not amused.  As for Mr. Perrong’s request for default judgment, the Court found that default was not appropriate because “both parties agree that Defendants intended to answer” the Complaint.  And as for the request for sanctions, it found that nothing about Mr. Haskins’s conduct reflected an attempt to obtain a waiver through false pretenses or any other misconduct.  To the contrary, it found that the only misconduct was Mr. Perrong’s “decision to act with petulance rather than professionalism.”  Given his lack of “decorum and respect,” the Court ordered him “to show cause as to why sanctions should not be granted in favor of Defendants.”

Plaintiffs should be reminded that, while status as a pro se litigant may ordinarily “shield [one] from sanctions for the unnecessary legal fees” defendants are forced to accrue, “habitual litigant[s]” with legal experience may be denied the “flexibility usually afforded to pro se litigants.”  Such is the case for Mr. Perrong.  Only after he stipulated to a dismissal with prejudice and provided a written apology “for not behaving with the level of decorum and respect” required, did the Court discharge its order to show cause regarding sanctions.

W. Joshua Lattimore

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