USDC MDFL ISSUES A DEFENSE LOSS: Motion to Dismiss and Stay Denied pending 11th Circuit en banc hearing on Drazen

Happy Monday TCPAWorld!

If you haven’t heard, our First Conference was Ah-mazing!

New week, new decision out of the sunshine state with a not-so-new plaintiff in Robin Taylor v. Leadpoint, Inc., 2023 WL 4545166 (M.D. FL) July 14, 2023. 

Plaintiff brought a putative class action alleging five separate calls – four which were rejected and one call that Plaintiff answered – in violation of the TCPA under 47 U.S.C. § 227(c). 

In a motion to dismiss, Leadpoint argues that Plaintiff failed to demonstrate that the “rejected” phone calls were a telephone solicitation and that Taylor was a “residential telephone subscriber.” Leadpoint also moved to stay the action pending the Eleventh Circuit’s en banc re-hearing of Drazen v. Pinto.  

The Court was not convinced and denied Defendant’s motions.  

LeadPoint insists that, unless a plaintiff answers the call and listens to the salesman’s pitch, a plaintiff cannot demonstrate that the salesman initiated the call “for the purpose of” delivering the pitch. 

The Court held that experience and common sense engender the plausible inference that, if a company calls a person five times in a day and advertises the company’s service when the person finally answers, the company intended by each call to advertise the service. 

Next, Leadpoint argues that Plaintiff failed to demonstrate her use of the phone and claims that her allegations are bare assertions. Plaintiff responded, and the Court agreed, that “coupled with the TCPA’s presumption that ‘wireless subscribers who ask to be put on the national do-not-call list are residential subscribers,’” creates the plausible inference that Taylor is a “residential subscriber.” 

Lastly and significantly, LeadPoint argued for a stay pending Drazen because it [Drazen] “will inform what type of claimed injury suffices for Article III standing” to sue under the TCPA.

But the Court noted that Drazen challenges a defendant’s allegedly using an “automatic-dialing system” to send a single phone call or text message. “In this action, however, no plaintiff or class member challenges the means by which LeadPoint sent a solicitation.”  Although Drazen’s rehearing might support staying an action that sues under 47 U.S.C. § 227 (b), nothing plausibly suggests that Drazen’s forthcoming decision will answer or inform whether a plaintiff’s receiving several calls despite a request not to receive calls confers standing under Section 227(c). 

There you have it!

Til next time, Countess!!!


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