For years now my team has been filing answers in TCPA class actions—when we are required to answer at all— that have very specific denials of class allegations and that articulate and plead FACTS demonstrating why a suit lacks merit or is otherwise not subject to class certification. While we remain very much in the minority in this approach—most defendants simply file vague and empty denials as their answer—a new decision demonstrates the wisdom of a more robust answer. It also demonstrates that some courts are absolutely fed up with repeat TCPA plaintiffs and their “aggressive” tactics.
In Perrong v. Reweb Real Estate LLC, CIVIL ACTION NO. 19-4228, 2020 U.S. Dist. LEXIS 152271 (E.D. Pa. August 21, 2020) Andrew Perrong—noted in the decision “as a prolific and frequently successful pro se litigant in cases brought under the TCPA”—saw a seemingly sure win against an out-of-state Defendant evaporate when the Court concluded it lacked jurisdiction over the Defendant based upon allegations in the Defendants’ answer.
The background is worth recounting. Perrong filed and apparently served the complaint on the Florida-based Defendant and then swiftly moved for default judgment in November, 2019. The Defendant swiftly moved to set aside the default—again without a lawyer— arguing it had not been properly served and was not subject to jurisdiction in PA. The Court granted the motion to set aside the default in December, 2019. The defendant then moved to dismiss the case for lack of jurisdiction—a motion the court characterized only as “conclusory”—but filed an answer containing a great deal of detail explaining the background of the case and Perrong’s (alleged) behavior ahead of filing.
The Court seemed quite impressed with the Defendant’s answer and noted a number of the salient allegations:
- Defendants contend that the texts were sent accidentally to the wrong number as one of their employees was seeking to communicate with the owner of the specific property identified and was using a number found in a published directory.
- Defendants further deny that their business lacked a “Do-not-call” policy and attached it as an exhibit to their answer.
- Defendants averred that they limit their activities to Southeast Florida, where they are licensed, and conduct no direct business activities in Pennsylvania.
- They further identify the specific person whom they were trying to contact and identify him as the owner of a property in Cape Coral Florida, an area in which they regularly do business.
- Defendants further pleads that Plaintiff demanded $7000 in settlement, told them that they would need to hire a lawyer, further stating that his demand would increase if they did not immediately capitulate.
The Court was seemingly quite impressed with the answer noting:
Considering the general and often evasive nature of many answers to civil complaints, the specificity and unambiguous nature of the denials stands out.
After reviewing the answer and the “conclusory” motion the Court sua sponte ordered Perrong to prove jurisdiction over the Defendant. The Court finds that Perrong’s declaration lacked any facts that proved Defendants did business in PA and was “long on argument and short on facts.”
Interestingly, the Court refused to grant Perrong’s request for jurisdictional discovery finding, in essence, that doing so would play into Perrong’s hands and allow him to impose an undue burden on a Defendant needlessly:
Similarly, his request for jurisdictional discovery would impose further transactional costs on Defendants. Both are consistent with Plaintiff’s aggressive style of litigation, and a concern arises that this represents a strategy of pressuring these defendants to settle independent of the merits of the case.
The Court also makes clear that boilerplate allegations that a Defendant does business in a state should never be made without factual support: I remain troubled that Plaintiff would unambiguously allege in the Complaint that Defendants conduct business here “by purchasing and owning property” in the absence of any factual support.
Quite a few lessons to be drawn from all of this. Obviously the Defendants’ chances in the litigation were greatly helped by its lengthy and well-pleaded answer. The Court was troubled by Plaintiff’s direct—but apparently baseless—assertion that Defendants did business in the state of PA and was certainly not going to play into the hands of an “aggressive” repeat-player. Definitely an important case to keep in mind for TCPA defendants facing tactics that may be designed to pressure a settlement “independent of the merits of the case.”