TCPA Tracker for March 2024

Cases of Note

Kansas Court Holds that TCPA Does Not Allow Contribution Claims

The United States District Court for the District of Kansas dismissed a defendant’s third-party negligence claim that attempted to seek contribution because, according to the Court, the TCPA does not create a right to contribution.

Plaintiff Brady Schmitendorf brought a putative class action against Defendant Juicy’s Vapor Lounge, Inc. alleging that Juicy’s sent telemarketing text messages to Plaintiff and other individuals whose phone numbers were listed on the national Do Not Call Registry. Juicy’s then filed a third-party complaint against EyeRate, Inc., a third-party vendor whom Juicy’s used to send its promotional text messages.

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. Juicy’s Vapor Lounge, Inc., 2024 U.S. Dist. LEXIS 40246, 2024 WL 959587 (D. Kan. Mar. 6, 2024).

Florida Court Dismisses Claim Due to Plaintiff’s Failure to Establish Defendant’s Liability for Correct Company

The United States District Court for the Southern District of Florida dismissed a TCPA claim brought by Plaintiff Richard Tuso against Defendant Lennar Corporation because Plaintiff failed to establish Defendant’s direct or vicarious liability.

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 April 2023.

Defendant Lennar Corporation moved to dismiss Plaintiff’s complaint on the grounds that the Danielle” referenced in the complaint is an employee of Lennar Sales rather than Lennar Corporation—which are different entities.

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 Lennar Sales. Moreover, Plaintiff did not establish Defendant’s vicarious liability because Plaintiff’s complaint did not contain any allegation supporting an inference of an agency relationship between Lennar Corporation and Lennar Sales.

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. Lennar Corp., 2024 U.S. Dist. LEXIS 51263, 2024 WL 1239474 (S.D. Fla. Mar. 22, 2024).

Illinois Court Dismisses TCPA Claim, But Offers Roadmap for Pleading Requirements

The United States District Court for the Northern District of Illinois dismissed Plaintiff’s TCPA and Florida state law analog claims under Fla. Stat. § 501.059, because the allegations in the complaint were contradictory and lacked factual assertions supporting Defendant’s purported liability. Plaintiff’s complaint first alleged that defendant Health Insurance Alliance directly called her twice on a number registered on the national Do Not Call Registry, but then also alleged that a separate third party placed the two calls on behalf of Defendant.

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 (N.D. Ill. Mar. 5, 2024).

New York Court Dismisses Serial Litigant’s TCPA Claims for Lack of Direct Connection to Defendant

The United States District Court for the Eastern District of New York dismissed Plaintiff’s TCPA claims filed against defendant Alleviate Tax, LLC and denied Plaintiff leave to amend to cure his pleading deficiencies because of the complaint’s silence on important facts needed to support a plausible TCPA claim.

Plaintiff, an attorney proceeding pro se, who the Court noted had previously brought at least eight other TCPA claims in the Eastern District, alleged that he received three automated calls from Defendant to his residential phone number. Plaintiff’s complaint asserted that the calls sounded robotic, advertised tax-debt services, and were telemarketing calls. On the first call, Plaintiff alleged that he pressed a button that transferred him to a live conversation with Defendant’s employee. On the second, he alleged that the pre-recorded message provided a number he could call, and upon dialing it, Plaintiff spoke with a live employee of Defendant. The Court highlighted that neither call included the name or address of the caller or the entity on whose behalf they were calling, and that Plaintiff’s amended complaint was similarly silent as to the caller identification or phone number for each of the calls.

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. Alleviate Tax, LLC, 2024 U.S. Dist. LEXIS 56828, 2024 WL 1332635 (E.D.N.Y. Mar. 28, 2024).