In case any of you wonder whether TCPA cases are sometimes litigated on cruise control, boy do I have a story for you.
Imagine a litigant passing away and her lawyer not knowing about it for nearly a year. During that timeframe the deceased Plaintiff’s attorney engages in settlement discussions, responds to discovery demands, submits status conference statements and schedules to the Court—and even allows his clients deposition to be noticed. That is exactly what happened in Barrett v. Medicredit, Inc., No. 3:17-cv-3251-B, 2019 U.S. Dist. LEXIS 48558 (N.D. Tx. March 25, 2019). There the Plaintiff’s attorney—renowned volume filer Sulaiman Law Group Ltd—narrowly avoided sanctions after prosecuting a case for almost precisely a year on behalf of a dead client.
In an interesting order, the Barrett court first outlines all of the facts leading up to the sanctions motion—including the death of the TCPA Plaintiff in mid-December, 2017 through various stages of the litigation and concluding when SLG found out via social media that the Plaintiff had died approximately 48 hours before the Plaintiff’s scheduled deposition. (My favorite part of the story is where the Plaintiff’s phone number changed hands and the TCPA consumer lawyer—presumably utilizing a software-enabled dialing device such as a smartphone—called the number and reached the wrong party on a recycled phone number by mistake.) Opposing counsel and the court were alerted to the death of the Plaintiff in December, 2018—353 days after the Plaintiff had died. The Court then cuts and paste, at length, from each parties’ briefs supporting and opposing the motion for sanctions.
While the backstory is intriguing and chuckle-worthy—in a dark way— the court was not inclined to sanction SLG and make it bear the cost of defense. Sanctions “require clear and convincing evidence of bad faith, improper motive, or reckless disregard of the duty owed to the court and not mere negligence on counsel’s part.” The Court found that Medicredit did not meet this heavy burden. Although Sulaiman’s conduct “might have been negligent” the Court concluded that Defendant had not shown that “Sulaiman recklessly disregarded any duty to the court.”
So SLG escapes sanctions but will, undoubtedly, pay closer attention to their client’s *ahem* whereabouts in the future.