UPDATED Victory by Default: TCPA Defendant Ends up Winning a TCPA Case By Doing Nothing At All

EDITOR’S NOTE: Wanted to provide everyone a quick update. After I ran my story this AM, I heard from my friends at TrueAccord—hi Katie and Kelly! It seems that the case resulted in a settlement back in 2018 and the pro se plaintiff—who brought TCPA claims against an agency who only sends emails—was supposed to dismiss the suit. He just… never did. While the Court’s order states that the court had notified Defendant of the pending suit in 2019, it is unclear how that contact was attempted and TrueAccord never received word. So the case just lingered on for years after it was supposed to have evaporated. Figured I’d let everyone know the backstory here. Chat soon.

File this one in the “don’t try this at home” category.

A TCPA defendant was sued in federal court in the PA back in 2018. Rather than respond to the complaint, the Defendant did absolutely nothing—and ended up winning. The case is Martin v. Trueaccord Corp., CIVIL ACTION NO. 1:18-CV-01148, 2021 U.S. Dist. LEXIS 40459 (M.D. Pa. March 3, 2021).

Here’s the story.

A TCPA Plaintiff owes an obligation to move a case forward. Failing to prosecute a case over a long period of time is actually grounds for dismissal. That said, when a Defendant fails to respond to a complaint the case usually results in a swift “default” judgment against the Defendant; i.e. the Court rejects any viable defense and awards the Plaintiff a victory on the papers.

But here’s the thing—the Plaintiff did absolutely nothing in the case either.

In August, 2019 the Court—growing bored of the silence on its docket—ordered the Defendant to explain why default should not be taken against it. The defendant did not respond. And the Plaintiff never asked the Court to do anything about it.

A year later, in August, 2020 the Court checked back in but this time ordered Plaintiff to explain why he had not yet sought default. Once again the Plaintiff did nothing and the Defendant was silent as well.

After another six months elapsed the Court had apparently had enough. The magistrate judge assigned to the case has recommended dismissal of the suit with prejudice. That means the case is dead and cannot come back!

While I definitely do not recommend “do nothing” as an effective litigation strategy, Martin demonstrates just how little some TCPA plaintiffs care about their case. Defendants are wise to be cautious, however, TCPA default judgments—including on a classwide basis—can and do happen.


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