Well here is one you don’t see every day.
A Plaintiff fin Michigan is facing sanctions that may total the entire cost of defense in a TCPA suit. The reason? He pleaded two phone numbers in the complaint that did not actually receive any phone calls—even though he may actually have received unwanted calls from the Defendant to a different number.
The case is Dobronski v. Alarm Mgmt. II, Case No. 18-11055, 2020 U.S. Dist. LEXIS 215666 (E.D. Mich. November 18, 2020).
Here’s the tale:
Plaintiff’s complaint alleged that he received calls on two phone numbers from Defendant. Notably the Plaintiff may not even have been required to allege the phone numbers he received calls on to begin with—case law is split on the subject—so Plaintiff probably didn’t think mis-alleging the numbers mattered much.
Defendant quickly advised the Plaintiff that it never called the numbers at issue and then served a Rule 11 motion. A rule 11 motion is a notoriously misused tool and filing a vapor motion (i.e. untethered to any dispositive motion) is usually pretty pointless. And that appeared to be the case here—the court swiftly denied the motion as “premature.”
But the motion had enough of an effect on Plaintiff that he moved to amend his complaint to add a new phone number—the one that he actually received calls on in the first place (allegedly.) In a harbinger of things to come, however, the Court denied Plaintiff leave to amend.
At this point Plaintiff had two choices—dismiss the case (as it related only to two numbers that did not receive calls) or barrel ahead with the litigation hoping that the Court would subsequently allow him to pursue claims related to an unalleged phone number.
Guess what he chose?
With the case still live, Defendant filed the easiest MSJ in the history of TCPAWorld. It read only: “Dude, Judge, we never called the numbers at issue in the complaint. Judgment us. Thanks.”
Ok, that’s not what it said, but it could have been. The Plaintiff had no evidence of calls to the pleaded numbers and fell back to his old argument that: i) he never had to allege the numbers at issue to begin with; and ii) Defendant really did violate the TCPA but just to a different phone number so, come on.
The Court was very much not impressed with Plaintiff’s argument—which had essentially been rejected when the Court refused to allow an amended complaint to be filed. It granted Defendant’s motion finding there was zero evidence of calls to the pleaded phone numbers.
And then the Court went further.
Recognizing that Defendant had filed a rule 11 motion way back at the beginning of the case arguing that it never called the pleaded phone numbers, the Court found there was zero basis to continue the case based on the complaint as pleaded. Now, if the Court had allowed an amendment to list different phone numbers the case might have had merit. But the Court did not. So the Plaintiff knew fully and completely that the allegations in the complaint were false and baseless. The decision to continue with the case anyway violated Rule 11.
So Defendant was awarded its fees—as in all of its fees—incurred defending the case. A cost bill will be filed and a later order setting forth the precise (sure to be big) sanctions order will follow.
This is truly a remarkable little case. To be sure, 9 judges out of 10 would have allowed an amendment or otherwise denied summary judgment to a defendant where the Plaintiff did receive unwanted calls, albeit to a different number. But TCPA litigation is about situational awareness folks. If a court has denied relief and exercised its discretion firmly against you once, don’t poke the bear. By continuing to advance his case in the face of a court that plainly wasn’t having it Plaintiff put himself in harm’s way. The result—although unusual—was actually pretty predictable given the procedural history here.
For TCPA defendants, take note. An errant allegation can be exploited to great effect under the right circumstances.
By Eric J. Troutman