Rule 8 Archives - Page 2 of 2

Topic: Rule 8

Court Dismisses TCPA Claim, Finds Plaintiff’s Arguments Waived

The Central District of California recently dismissed claims arising from allegedly unsolicited calls using an ATDS, finding that the plaintiff had waived her arguments by failing to address the defendant’s arguments in her response to the defendant’s motion to dismiss. See Hollis v. LVNV Funding, No. 18-1866, 2019 WL 1091336 (C.D. Cal. Jan. 2, 2019). The court found the dismissal justifiable given the plaintiff’s failure to plead her claim with specificity and her failure to cite to the specific portion of the TCPA that she believed had been violated. Id. at *5.

Continue reading “Court Dismisses TCPA Claim, Finds Plaintiff’s Arguments Waived”

California District Court Sends Plaintiff Back to the Drawing Board to Clarify Which of Six Defendants Actually Called Him

Plaintiffs often employ the spaghetti-against-the-wall tactic of asserting every conceivable claim against every conceivable defendant. But as a recent decision from the Southern District of California confirms, this strategy is not without risk.

In Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court dismissed a TCPA claim with leave to amend because the plaintiff had failed to allege a fundamental fact: which of the six named defendants actually called him. Continue reading “California District Court Sends Plaintiff Back to the Drawing Board to Clarify Which of Six Defendants Actually Called Him”

Northern District of California Rejects First Amendment Challenge to the TCPA

A federal judge in the Northern District of California recently denied a motion to dismiss a putative class action accusing Facebook of violating the TCPA by sending text messages reminding users about their friends’ birthdays. In so doing, the court rejected Facebook’s First Amendment challenge and found that the TPCA survived strict scrutiny. Brickman v. Facebook, Inc., No. 16-0751, 2017 U.S. Dist. LEXIS 11849 (C.D. Cal. Jan. 27, 2017). Continue reading “Northern District of California Rejects First Amendment Challenge to the TCPA”

Court Dismisses TCPA Suit for Failure to Adequately Allege Seller’s Vicarious Liability

The Northern District of Ohio recently dismissed a TCPA action because the plaintiff failed to allege any facts from which the court could conclude that the defendant was directly or vicariously liable for the alleged calls. See Seri v. CrossCountry Mortgage, Inc., No. 16-01214, 2016 WL 5405257 (N.D. Ohio Sept. 28, 2016).

In Seri, the plaintiff alleged that defendant Direct Source – a telemarketing vendor – made at least twenty unsolicited telemarketing calls to the plaintiff’s cellular telephone using an ATDS. He further alleged that defendant CrossCountry Mortgage, Inc. (“CrossCountry”) regularly had third-party telemarketers make telemarketing calls on its behalf and had an “extensive relationship” with Direct Source. Continue reading “Court Dismisses TCPA Suit for Failure to Adequately Allege Seller’s Vicarious Liability”

Michigan Federal Court Dismisses TCPA Complaint and Rejects Plaintiff’s Conclusory ATDS Allegations

The U.S. District Court for the Eastern District of Michigan recently dismissed a TCPA complaint upon finding the plaintiff’s factual allegations insufficient to satisfy the pleading standards imposed by both Rule 8(a) and the Supreme Court’s opinions in Twombly and Iqbal. The Court’s order provides useful guidance concerning the oft-litigated issue of whether a complaint contains sufficient facts to plausibly allege a defendant’s use of an ATDS.

Continue reading “Michigan Federal Court Dismisses TCPA Complaint and Rejects Plaintiff’s Conclusory ATDS Allegations”

District Court Says TCPA Plaintiffs Are Not Required To Plead Their Phone Numbers; Allows Plaintiff’s Negligence Claim Premised On Existence of Statutory Duty Of Care Under The TCPA To Move Forward

The District of South Carolina recently rejected the argument that TCPA claims must be dismissed if a plaintiff does not specify the telephone number that was allegedly called. See Williams v. Bank of America, No. 14-4809-RBH (D.S.C. June 19, 2015).

Continue reading “District Court Says TCPA Plaintiffs Are Not Required To Plead Their Phone Numbers; Allows Plaintiff’s Negligence Claim Premised On Existence of Statutory Duty Of Care Under The TCPA To Move Forward”

Florida Federal Court Grants Rule 12(b)(6) Motion For Failure To Satisfy Twombly/Iqbal Pleading Standard In TCPA Case

In a TCPA action involving allegedly unsolicited cellular telephone calls made using an automated telephone dialing system (“ATDS”), the Middle District of Florida ruled that plaintiff had merely recited the elements for a claim under the TCPA rather than allege adequate factual support, and dismissed plaintiff’s complaint without prejudice. See Hunter v. Diversified Consultants, Inc., No. 8:14-cv-2198, 2014 U.S. Dist. LEXIS 165355 (M.D. Fla. Nov. 26, 2014). The complaint contained only the following factual allegations: First, that “[d]uring the past 48 months prior to the filing of this complaint, Defendant contacted Plaintiffs’ [sic] cell phone without express permission with an automated dialing system”; and second, “Defendant called Plaintiffs’ [sic] cell phone intentionally and repeatedly, without express permission and with an automated telephone dialing system…” Id. at *2.

Continue reading “Florida Federal Court Grants Rule 12(b)(6) Motion For Failure To Satisfy Twombly/Iqbal Pleading Standard In TCPA Case”

Northern District of Illinois Applies Twombly/Iqbal Pleading Standard to Affirmative Defenses in TCPA Case

In a TCPA action involving allegedly unsolicited fax advertisements, the Northern District of Illinois applied the plausibility standard articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) to affirmative defenses. See Mussat v. Power Liens, LLC, No. 13-7853, 2014 U.S. Dist. LEXIS 141561 (N.D. Ill. Oct. 6, 2014). We recently discussed a similar TCPA case where the court held that the plausibility standard did not apply, and in doing so sided with the majority view that the textual differences between Rule 8(a)(2) (claims) and Rules 8(b)(1)(A) (defenses) and 8(c)(1) (affirmative defenses) prevented the application of the plausibility standard to affirmative defenses. See Exclusively Cats Veterinary Hospital, P.C. v. Pharmaceutical Credit Corp., No. 13-14376, 2014 U.S. Dist. LEXIS 132440 (E.D. Mich. Sept. 22, 2014). Perhaps because the defendant focused elsewhere in its briefing, the Mussat court simply cited a 25-year-old decision from the Seventh Circuit holding that courts can strike affirmative defenses that do not satisfy federal pleading standards and then recited the requirements of the Twombly/Iqbal plausibility standard. Mussat, 2014 U.S. Dist. LEXIS 141561 at *2.

Continue reading “Northern District of Illinois Applies Twombly/Iqbal Pleading Standard to Affirmative Defenses in TCPA Case”

Court Holds That Twombly/Iqbal Pleading Standard Does Not Apply to Affirmative Defenses in TCPA Case

In a TCPA action concerning allegedly unsolicited fax advertisements, the Eastern District of Michigan recently rejected the argument that the plausibility standard articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) applies to affirmative defenses. See Exclusively Cats Veterinary Hospital, P.C. v. Pharmaceutical Credit Corp., No. 13-14376, 2014 U.S. Dist. LEXIS 132440 (E.D. Mich. Sept. 22, 2014).

Continue reading “Court Holds That Twombly/Iqbal Pleading Standard Does Not Apply to Affirmative Defenses in TCPA Case”