Hi TCPAWorld! The Baroness here and back with the latest and greatest.
How many of you folks have heard of Nathen Barton? Well, for those of you who don’t know, he is a serial litigator in Washington and has filed dozens of TCPA lawsuits. Someone you may want to keep on your radar (or do not call list).
Here, Nathen Barton sued a non-profit organization, Serve All Help All Inc. (SAHA) for violations of the TCPA. More specifically, Barton alleges SAHA made unsolicited phone calls to his son’s cell phone, without prior express written consent.
Plaintiff moved for summary judgment and moved to strike, and SAHA cross moved for summary judgment and moved to strike. I want to dive into SAHA’s cross motion for summary judgment on the Complaint.
But first, I do want to address what the Court said about Plaintiff’s Motion for Summary Judgment. The Court stated, “Plaintiff’s Motion for Summary Judgment and Plaintiff’s Response to SAHA’s Cross Motion for Summary Judgement, and supporting documents are a confusing mess. Even considering the leeway granted pro se parties’ pleading, the Plaintiff’s showing is not sufficient to justify a summary judgment” (emphasis added). Small win here for SAHA.
Now to SAHA’s cross motion for summary judgment.
SAHA cross moved for summary judgment arguing that Plaintiff could not show he has Article III standing under the U.S. Constitution. This motion is actually a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction and the court construed it as such.
In a 12(b)(1) motion, the party asserting the existence of federal court jurisdiction must establish three elements: 1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) causation; and (3) a likelihood that a favorable decision will redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
SAHA attacks the first element and argues Plaintiff has not shown he has suffered a violation of a privacy interest that the TCPA was intended to protect. To put it simply, SAHA argued Plaintiff has not suffered an “injury in fact.”
“[SAHA] points to the TCPA University website, the Facebook posts, and Plaintiff’s extensive TCPA litigation history. It maintains that his entire scheme is designed to invite calls that he would otherwise not have received.” [SAHA] contends that he cannot establish any expectation of privacy regarding phones purchased and used in his for profit TCPA scheme.”
On the flip side, however, Plaintiff argues SAHA invaded his privacy. Plaintiff obtained the phone number primarily for the purpose of his son having a phone and not for the purpose of filing TCPA lawsuits. Believable?
The Court in Washington thought so. The Court denied SAHA’s motion to dismiss based on a lack of standing because “[t]here are disputed facts as to why Plaintiff brought this case and his other TCPA cases…[SAHA’s] motion to dismiss raises defenses to be proven at trial, but does not successfully attack Plaintiff’s jurisdictional showing at this stage with material fats in issue.”
Unfortunately, Nathen Barton lives to see another day.