A good motion to dismiss can end a case outright. Many Defendants, however, seem to bring motions that really have no chance in TCPA suits.
Here’s a quick example.
In Rose v. New Tsi Holdings, Inc., 21-CV-5519 (JPO), 2022 U.S. Dist. LEXIS 56525 (SDNY March 28, 2022) the Plaintiff alleged Defendant’s business was being promoted via prerecorded calls to his cell phone. The phone was allegedly used for personal purposes and was on the DNC. The calls were allegedly made without consent and continued after a do not call request was made reading STOP CALLING AND TEXTING ME and including the number at issue.
Despite these rather clear cut allegations the Defendant moved to dismiss. The Court had little trouble denying the motion finding that the use of a prerecorded call to contact a cell phone without consent violates the TCPA. And calls to a residential number on the DNC list without consent also violate the statute. The Plaintiff’s allegations were sufficient to state a claim.
The only piece of the motion that had a chance was the portion challenging the treble damages request. But since the Plaintiff alleged he had directly asked for calls to stop–which request was ignored–the Court found that the Defendant could be liable for enhanced damages under the TCPA’s willfulness standard.
Not really many surprises here. So the TCPAWorld goes…