Cases of Note
Plaintiff
Juicy's stated in its complaint that it uploaded a list of telephone numbers to EyeRate, who then sent promotional text messages to the telephone numbers on the list. The list that Juicy's uploaded to EyeRate included Plaintiff's phone number, even though Plaintiff's phone number is on the Do Not Call Registry.
In Juicy's third-party complaint against EyeRate, Juicy's initially alleged breach of contract, negligence, and breach of warranty claims. Juicy's then moved to drop the counts for breach of contract and breach of warranty, and to amend the remaining negligence claim.
The Court denied Juicy's motion for leave to amend its complaint because it found that Juicy's negligence claim was an attempt to seek contribution from EyeRate. When one party has paid more than its equitable share of a common liability, it can seek contribution from the other responsible parties.
The Court held that the TCPA does not create a right to contribution. Thus, since Juicy's original negligence claim sought contribution, the Court dismissed Juicy's complaint for failure to state a claim.
Schmitendorf v.
Plaintiff's phone number had been on the Do Not Call Registry since 2003. Plaintiff alleged that he received two unsolicited phone calls from someone identifying herself as "Danielle from Lennar" in March and
Defendant
The Court held that Plaintiff did not establish Defendant's direct liability because Plaintiff failed to contest, and thus conceded that "Danielle from Lennar" was an employee of
Since Plaintiff did not establish Defendant's direct or vicarious liability, the Court dismissed Plaintiff's claims. However, the Court granted Plaintiff leave to amend his complaint to add factual allegations in support of Defendant's direct or vicarious liability.
Tuso v.
The Court found these allegations insufficient to survive a motion to dismiss because they did not allege facts that would allow the Court to conclude either that the representatives with whom Plaintiff interacted were employees of Defendant, or that there was any formal principal-agent relationship between the calling third party and Defendant. The Court held that Plaintiff's complaint forced it to speculate and attribute liability to Defendant without any facts on which to base such assumptions and therefore dismissed the claims.
Despite its holding, the Court provided Plaintiff with a roadmap to amend the complaint and cure its deficiencies. The Court set out examples of curative additions, including: identifying the caller as an employee of the defendant; identifying the number on Plaintiff's caller identification as associated with the defendant; confirming that the defendant placed the calls by calling the number back; or providing a contract, business relationship, or other independent facts that would plausibly show that the third party placed the calls on defendant's behalf.
Woodard v. Health Ins. All., 2024 U.S. Dist. LEXIS 38204, 2024 WL 942629 (
Plaintiff, an attorney proceeding pro se, who the Court noted had previously brought at least eight other TCPA claims in the
Citing one of Plaintiff's prior TCPA lawsuits as precedent, the Court explained that the transfer of the first call to Defendant alone was not enough to establish that Defendant either initiated the call itself or exerted sufficient control over the caller to initiate the call on Defendant's behalf. Ultimately, the Court held that the complaint's dearth of facts connecting the automated calls to Alleviate Tax, connecting the caller ID to Alleviate Tax, or even indicating how Plaintiff knew that the live person he spoke to was an employee of Alleviate Tax was fatal to Plaintiff's claims.
Plaintiff admitted that he failed to include an allegation that he listed his residential landline on the national Do Not Call List Registry. The Court declined Plaintiff's request for leave to amend and cure this deficiency, however, because Plaintiff had already amended his complaint once, and was on notice at that time of this deficiency but failed to correct it.
Bank v.
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