The Middle District of North Carolina recently denied, in part, a motion seeking dismissal of serial TCPA plaintiff Craig Cunningham’s complaint alleging violations of the TCPA and the North Carolina Telephone Solicitations Act (NCTSA). See Cunningham v. Wallace & Graham, P.A., et al., No. 1:24-cv-00221 (M.D.N.C. Nov. 19, 2024). The court suggested that the NCTSA probably does not apply extraterritorially but ultimately denied defendants’ motion to dismiss the NCTSA claim because the parties did not brief the issue.
In Wallace & Graham, plaintiff alleged that he received initial calls from an agent of Sokolove Law, LLC (Sokolove), asking if he was interested in pursuing a claim against the government for toxic exposures that occurred at Marine Corps Base Camp Lejeune (despite the fact that plaintiff allegedly never worked at Camp Lejeune).
Following the initial calls, plaintiff alleged that he received multiple calls from various agents of Sokolove, including calls from the law firms Wallace & Graham, P.C. and Rhine Law Firm, P.C., as well as other individual attorneys. In total, plaintiff claimed that he received 43 calls and four text messages about the possible representation. Plaintiff purportedly asked to be placed on the firms’ internal do-not-call lists and supposedly requested copies of their do-not-call policies. The firms allegedly declined to show plaintiff the policies.
The defendants moved to dismiss the complaint, arguing, in part, that plaintiff: (1) failed to allege a TCPA claim; and (2) failed to state a cognizable claim under the NCTSA because plaintiff is not a North Carolina telephone subscriber and therefore lacked standing to pursue a claim under the statute.
First, the court held that plaintiff plausibly alleged a TCPA violation.
Second, and most notably, the court also denied defendants’ motion concerning the NCTSA. Defendants argued that plaintiff lacked statutory standing to pursue a claim under the NCTSA because he is a Texas resident and the statute is intended to protect only North Carolina telephone subscribers. In response, plaintiff argued that the plain text of the statute does not limit its protections to telephone subscribers within the state. Plaintiff cited the supposedly broad definition of “telephone subscriber” in the statute to argue that it should not be limited to only North Carolina telephone subscribers. The definition is not expressly geographically limited. See N.C. Gen. Stat. § 75-101(11).
The court examined legislative history from the North Carolina General Assembly, including the public interest in “additional protections for North Carolina residents who enter into consumer transactions initiated through telephone solicitations.” The court also noted that North Carolina courts recognize a presumption against extraterritorial application of state law.
The court suggested that plaintiff’s arguments regarding the extraterritorial reach of the statute were “doubtful, at best,” but ultimately denied the motion to dismiss. The court concluded that the parties had not briefed the law on the extraterritorial reach of North Carolina legislation, and declined to dismiss the claim on that basis.
