The big wins are rolling in for TCPA Defendants.
With twin circuit court of appeals rulings from the Eleventh and Seventh Circuit Courts of Appeal narrowing the scope of the TCPA’s ATDS definition, defeating TCPA cases in certain jurisdictions has become as easy as shooting fish in a barrel.
Here’s the latest Defense layup.
In Dotson v. Dish Network L.L.C., 2:19-CV-21, 2020 U.S. Dist. LEXIS 48783 (S.D. Ga. March 19, 2020) the Defendants motion for summary judgment was granted following Glasser. The Court determined first that the TCPA has a four year statute of limitations so claims for calls placed more than four years prior are inactionable.
More pertinently, after determining that it is Plaintiff’s burden to prove ATDS usage, the Court granted Dish summary judgment for lack of any applicable evidence on the subject in Plaintiff’s possession. But it wasn’t for lack of trying.
With Glasser requiring random or sequential number generation to state a TCPA claim in the Eleventh Circuit—where Georgia is located—the Plaintiff was left to attempt a Hail Mary argument. Plaintiff argued that it had asked Dish to identify the persons that made the calls at issue in the discovery process. Rather than answer the question, Dish had objected to the question. Plaintiff argued that the Court should deny summary judgment, therefore, because Dish’s refusal to identify the maker of the calls must mean that the calls were made automatically.
The Court correctly determined that an objection to a discovery demand is not evidence; it is merely an objection. Dish’s failure to respond to the interrogatory may or may not have been proper—and the Court suggests it was not—but the remedy for any failure to reply to a discovery question is for the propounder to compel a further response. Plaintiff did not do so and cannot use Dish’s objection to raise a triable issue of fact on the ATDS issue.
And so the TCPAWorld turns.