A review of a pro-se plaintiff's TCPA complaint

This is unsolicited review of a telephone consumer act pro-se plaintiff's complaint. I chose this complaint because it fits the theme of another recent blog post - are confirmation text messages actionable under the TCPA. First, the standard disclaimers. I practice in the ninth circuit and I will look at it through the lens of my practice area. The lawsuit itself is from New Jersey and perhaps a lawsuit might work there that won't work here, and vice versa. The lawsuit has a New Jersey state claim I won't address at all. And finally, I am not criticizing anyone, just giving my thoughts so that other plaintiffs can come with stronger lawsuits.

The lawsuit came to my attention through a removal action, which is cool to see the nuts and bolts of. The defense attorney removed the lawsuit from a state court to federal court, told the federal court a brief history of the case, and showed the federal court the complaint.

Zelma v Wonder Group Inc..pdf

Download PDF • 1.82MB

I'll summarize the history of the case as recounted by the notice of removal. ¶1 of the removal notice says in June of 2024, Richard Zelma filed a lawsuit in New Jersey state court, essentially against unknown John Doe defendants, for violations of the telephone consumer protection act. He had some phone calls but not the names of the entities behind them.

Through a subpoena (page 27 ¶34) it appears he learned the identity of the sender of two text messages and six months later he amended the complaint to name Wonder Group Inc., and mailed them a copy of the amended complaint (starts at page 21 of the pdf above). In turn, Wonder removed the lawsuit to federal court because it has original jurisdiction over TCPA claims.

The foundation of the of the amended complaint are two text messages. They appear to be confirmation texts sent to verify some request or transaction.

Something quickly leaps out - according to the image, they were sent on November 13, 2024. On a lawsuit filed in June of 2024.

Perhaps these are just two specific examples of a long series of text messages sent by the same defendant(s) that predated June of 2024, but some plaintiffs have been known to file one "john doe" lawsuit and use it as a catch all to serve subpoenas for information in essentially unrelated events. Your milage may vary if the court draws this conclusion and finds the plaintiff abused the subpoena process as this TCPA plaintiff found out. The safest approach is to file a new lawsuit when it appears a new defendant is dialing your digits.

The second thing that leaps out are the lawsuit claims. 47 U.S.C. § 227(c) for

do-not-call violations, 47 U.S.C. § 227(b) for autodialed call violations, placing autodialed calls without an opt-out mechanism, and the New Jersey state claim.

Putting on my defense attorney hat, in the ninth circuit I would expect motion to dismiss to follow. I did a deeper dive of are confirmation texts actionable under the TCPA, and I won't repeat all of that here, but will simply point out the definition of telemarketing / telephone solicitation both have the root requirement:

initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person

I have never seen a court hold that a barebones confirmation code text is for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services. If I am wrong, please point me to a case citation. What made Abboud v. Circle K Stores Inc., No. CV-23-01683-PHX-DWL, 2 (D. Ariz. Jan. 27, 2025) distinguishable was those texts went beyond what was required for a confirmation code text:

Plaintiff's counsel conceded during oral argument that if the text messages had merely stated “Circle K, reply yes to confirm the receipt of future text messages,” they would not run afoul of the TCPA. But that is not what the text messages said. Defendant made a discretionary choice to add additional verbiage to the text messages that went beyond confirming the recipient's consent to receive future messages

These Wonder texts are exactly what the Abboud court heavily implied would not be TCPA violations. A ninth circuit federal district court judge is very likely to find the Wonder texts are not telemarketing or telephone solicitation under the TCPA, not in the least because Zelma had to use a subpoena to find out the entity behind them. A judge is likely to find it would be impossible for a consumer to make a purchase just based on the content of these text messages.

In the ninth circuit, a case called Borden v. eFinancial, LLC, 53 F.4th 1230, (9th Cir. 2022) has killed off pretty much all reflexively added ATDS [automatic telephone dialing system] claims (but not artificial and pre-recorded voice claims) because the bar in this circuit is now very high to succeed with them.

Borden and ATDS claims requires its own blog post to do it justice, but the take away is, Wonder will also certainly make that argument that it didn't randomly or sequentially dial Zelma's number, but only dialed it in response to some user's input. Be that a fat finger mistake or something else. As far as I know this argument is persuasive in all circuits.

I am not commenting on the New Jersey claim, but in the ninth circuit the rest are likely to be dismissed with prejudice. I would not want to see this dismissal be appealed because it almost certainly would result in a consumer unfriendly ninth circuit ruling. I do think telemarketers should be able to send one text as part of a double opt in verification. This will end a lot more unwanted calls than it creates. But we don't want them turning to Abboud style advertisements.

There are a few other nits to pick in the complaint. It asserts these facts about the do-not-call registration:

Thus, the defendant engaged in this proscription by texting messages to Plaintiff to his cellular telephone, [551] XXX- 0393, where that cellular number has remained listed with the federal and (NJ) state no-call-list since 2003, to avoid receiving unwanted telemarketing or text message solicitations of any kind . . . Plaintiffs phone number referenced above has been and remains listed on the FTC and New Jersey no-call-registry since inception, 2003 and 2004.

Where technically 47 CFR § 64.1200(c)(2) says "A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry". A defense attorney like Troutman will absolutely file a motion to dismiss if the telephone number's subscriber or regular user does not allege that they themselves registered the phone number. In most courts this is a losing argument but you win every fight you don't have.

A bigger nit to pick is the complaint only alleges two texts. I highly recommend complaints allege specific calls, but also makes clear that the list of calls alleged is not exhaustive and there are calls not yet traced to the defendant. Why does this matter? If you don't, and in discovery you try to learn about other calls, the other side will object saying your complaint already limited the number of calls and many judges will side with the defendant.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

Return to blog articles