A Rock And A Hard Place: Court Denies TCPA Defendant Post-Certification Leave To Add Bristol-Myers Squibb Affirmative Defense

Seemingly every class action plaintiff’s attorney has a canned response to a Rule 12(b)(2) motion to dismiss non-resident putative class members: that it is premature to even consider the motion prior to certification, because any such individuals are not yet part of the case. Some courts accept this argument and delay consideration of the issue until class certification. But in a recent Southern District of California case, a TCPA defendant learned the hard way that the better course is to raise the defense at the pleading stage to avoid waiver. See McCurley v. Royal Seas Cruises, No. 17-cv-00986, 2019 U.S. dist. LEXIS 114644 (S.D. Cal. July 10, 2019).

Instead of challenging personal jurisdiction of claims of absent class members at the pleadings stage, the defendant in McCurley first raised a Bristol-Myers-Squibb-based argument in opposition to class certification. The court held that the defendant waived the defense by failing to include it in a Rule 12(b)(2) motion or in its answer.

In a creative attempt to preserve the issue, the defendant filed a motion under Rule 15(a)(2) to amend the answer post-certification, claiming that the issue was not ripe pre-certification because the absent class members were not yet part of the case. The court rejected this attempt too, holding that the leave was sought in bad faith and would be futile, because the defense had no chance of success.

McCurley highlights one of the many difficult procedural decisions in class actions face. Challenge jurisdiction over claims of non-resident absent class members prior to certification, and a court may deny it as premature. But wait until after certification, and a court may find that it was waived. Given the harsh consequence of waiver, the better approach is typically to bring all plausible jurisdictional challenges at the pleadings stage. Even if a court denies a motion as premature, the issue is preserved for future proceedings.

At the end of the day, the result in McCurley may have been the same even if the defendant raised the Bristol-Myers Squibb defense at the pleadings stage, since the court found it futile. But it does serve as a reminder to TCPA defendants that failing to include jurisdictional motions at the outset of a case is fraught with peril.

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