The U.S. District Court for the Middle District of Florida recently denied a defendant’s motion to dismiss on standing grounds even though plaintiff remained on the line to discover the identity of the caller solely for the purpose of filing a TCPA lawsuit. Despite the adverse ruling on the facts presented, the court recognized that a factual attack on standing may succeed at the pleading stage if a defendant can adduce conclusive facts to show that plaintiff welcomed the relevant phone call. Defendants facing TCPA lawsuits from professional or serial plaintiffs should take note of this decision.
Facts
In Simpson v. J.G. Wentworth Co., plaintiff claimed that he received a telemarketing call on his cell phone from Digital Media Solutions (DMS) on behalf of J.G. Wentworth in July 2022. 2024 WL 245992 (M.D. Fla. Jan. 23, 2024). Simpson’s cell phone number was registered on the National Do Not Call Registry at the time of the alleged call, which opened with a pre-recorded voice message that didn’t identify the caller. Simpson remained on the line and eventually spoke with a person who identified himself as being from J.G. Wentworth. Afterwards, Simpson sued J.G. Wentworth and DMS for purported violations of the TCPA and the Florida Telephone Solicitation Act (FTSA).
DMS moved to dismiss under Rule 12(b)(1) for lack of standing and under Rule 12(b)(6) for failure to state a claim under the FTSA. The court denied the motion in whole and allowed Simpson’s claims to proceed.
Standing Analysis
DMS argued that Simpson lacked standing because he invited the call when he remained on the phone and interacted with the J.G. Wentworth representative. In support of this argument, DMS provided a call transcript showing that, at the beginning of the phone call, Simpson was given the option to end the call by “press[ing] 1” yet chose to stay on the line for 15 minutes.
The court rejected DMS’s argument and held that Simpson had standing to sue. “[W]hether Simpson could have immediately ended the call is irrelevant to the standing analysis” because “the simple receipt of an unwanted phone call causes a concrete injury.” Id. at *3 (citing Drazen v. Pinto, 74 F.4th 1336, 1346 (11th Cir. 2023) (en banc)). Furthermore, the court held that the call transcript was “consistent with Simpson’s version of events . . . that he stayed on the line and continued engaging with the Defendants’ representatives to figure out who was calling (and thus who to sue)” and did not conclusively establish that Simpson consented to the phone call. Id. Nonetheless, the court reasoned that “there may be some set of circumstances where a transcript and a defendant’s internal records can conclusively establish that a call was not unwanted and thus defeat standing at the pleading stage,” but this was not such a case. Id.
The court separately rejected DMS’s argument that Simpson failed to state a claim under the FTSA.
Conclusion
Despite the adverse ruling on the facts presented, the Simpson court recognized that a factual attack on standing may succeed at the pleading stage if a defendant can adduce conclusive facts to show that plaintiff welcomed the relevant phone call. Defendants should consider whether the facts alleged or evidence they plan to submit with a Rule 12(b)(1) motion conclusively establish that plaintiff invited their outreach or can instead be characterized as evidence of plaintiff’s effort to identify and sue the caller. If a defendant cannot establish consent at the pleading stage, additional discovery regarding this issue may be necessary.
Simpson is the latest decision assessing whether serial or professional plaintiffs have standing to sue under the TCPA. Our prior coverage regarding this issue can be found here.
