A review of a pro-se plaintiff's TCPA complaint against Alleviate Tax
- Peter Schneider
- Mar 26, 2024
- 3 min read
Updated: Jan 21
This is an unsolicited review of pro-se plaintiff Farbod Moghadam's second amended complaint against Alleviate Tax LLC alleging violations of the Telephone Consumer Protection Act (TCPA) in the New Jersey federal district court.
First, I congratulate him for having the moxie to stand up against telemarketers. The Troutman law firm is defending Alleviate so he has pretty decent odds of winning so long has he keeps learning as quickly as his response to Alleviate's motion to dismiss indicates.
But there were a few issues in his complaint that even some experienced attorneys get wrong from time to time.
Mr. Moghadam's complaint is here.
He did pretty well but a few minor mistakes gave Troutman room to file a MTD. He cited in ¶12:
"In implementing regulation, 47 C.F.R. 64.1200(c), provides that “[no] person or entity shall initiate any telephone solicitation [to] a residential telephone subscriber who has registered her or her telephone number on the [NDNC list].”"
but in ¶22 he said "My personal phone number has been registered on the NDNCR, since February 20, 2020." instead of a more active statement of fact "I registered my personal phone number on the NDNCR in February 20, 2020."
Often judges gloss over who registered the phone number on the NDNCR, but if a judge is looking for an excuse to dismiss a lawsuit, this does open the door.
The second omission in the complaint is a statement of fact that Mr. Moghadam uses his phone as a residential phone line. Troutman jumps on that as well in Alleviate's motion to dismiss. Had Mr. Moghadam stated that he pays the cell phone service fees out of his own pocket and does not use the phone for business purposes, Troutman's ability to make a motion to dismiss on this issue may have evaporated away.
Mr. Moghadam's complaint described a number of Alleviate's phone calls in one sentence as "Between August 17, 2023, and October 16, 2023, Alleviate made eight, or more, unanswered calls and left three voice messages." It might have been better practice to describe the telemarketing nature of these calls in a little more detail as some judges won't assume every call not specifically alleged to be a telemarketing call, is a telemarketing call.
Mr. Moghadam's complaint could have spent a few more sentences citing and describing the recent telemarketing litigation Alleviate is embroiled in to a stronger case that Alleviate's alleged telemarketing violations were willful or knowing.
Only Mr. Moghadam and Alleviate know exactly what was said when Mr. Moghadam "conveyed my inability to continue the conversation and ended the call" but this might have been an opportunity to allege that Mr. Moghadam made a do-not-call request to Alleviate. It could have been a strong indication that any further solicitation calls were willful or knowing violations of the TCPA.
The judge is very unlikely to grant a dismissal without giving Mr. Moghadam the opportunity to amend, and looking at his response to Troutman's MTD, Mr. Moghadam seems more than capable of seeing how to fix any deficiencies.
Other plaintiffs have fought off an Alleviate motion to dismiss. Good luck Mr. Moghadam!
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.
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