How to respond to a telemarketers' motion to dismiss

After a lawsuit is filed with the court, typically defendants can respond with an answer, or a motion to dismiss. Many defendants' knee jerk reaction will always be a motion to dismiss. It delays the case, which defendants typically like, maybe there is a pleading defect in the complaint, and if nothing else, many of them seem to believe and many defendants daydream that the TCPA plaintiff is a terrible person, the defendant did nothing wrong, and maybe a motion to dismiss that lays this out for the the judge will get the whole mess to go away. Here are my thoughts on what I do in these situations.

#1 - Read it. Read their motion to dismiss your TCPA lawsuit. Take notes.

I start by a quick read of their motion to dismiss. Then a slow, detailed read. During the slow, detailed read I have a notes file open and I copy and paste into the notes things I know need to be addressed in a response. I also have my complaint open and I copy into the notes file any relevant sections of my complaint. For example they might state the complaint fails to allege XYZ, but it does. I'll copy into the notes file their allegation, and all the places the complaint does allege XYZ.

#2 - Research my needed caselaw.

I have a separate notes file for every motion or issue I know is coming in the case. I have found that many times while I was researching another issue, or just reading for enjoyment, I'll come across a case or legal reference that will help address a future issue. Once I have their motion to dismiss, I can start to focus on what issues I need some legal support on, and focus on finding it.

When I find it, I read the entire case, look to see if it is still good case law (are new opinions still citing it for the premise I need it for), copy the relevant portion to my notes file, and save the complete case citation. When looking for the perfect case citation, I actually look for several of them. One is the most on-point binding appellant decision I can find, and the other is the most recent application of the binding appellant decision I can find in my same trial court division. If I can't find one or both of those, then I look for other trial court opinions, out of circuit appellant decisions, etc.

#3 - Research their caselaw.

Their motion to dismiss will likely be chock full of misleading caselaw. Many opposing attorneys turn to 'cheat sheet' case law aggregator websites. The opposing attorney probably didn't read their case citations, may not cite it accurately even if he/she knows better, and is certain you and the judge won't read it either. And likely many of the cases they cite won't support the premise they are cited for, or with proper analysis may even support your case. I read every single case citation from the opposition. Here is an example:

Here, Plaintiffs have purportedly served the “foreign currency exchange business organization” by serving individual Defendants with the [deposition] Subpoenas. Critically, however, there is no “foreign currency exchange business organization” to be served, and no individual person was named in the [deposition] subpoena to appear on its behalf. See Donoghue v. Cty. of Orange, 848 F2d 926, 931-32 (9th Cir 1987) (it was not an abuse of discretion for the lower court to quash a Fed. R. Civ. P. 30(b)(6) subpoena that did not designate an individual sought to testify on the entities’ behalf). Here, individual Defendants were not named in the [deposition] Subpoenas and do not acknowledge or concede the existence of the purported “foreign currency exchange business organization,” let alone serve as its authorized representatives.

If you actually read Donoghue, you realize it was addressing the subject of trial subpoenas, not deposition subpoenas. Catching these attorneys with their tail in the door on a bogus case citation could get them sanctioned. "In addition, Defense counsel is ORDERED to show cause no later than November 12, 2024, why counsel should not be sanctioned under Federal Rule of Civil Procedure 11(b) for citing a decision that is clearly inapplicable to the facts and issues raised in this litigation." Barton v. Delfgauw, 3:21-cv-05610-DGE, 13 (W.D. Wash. Nov. 1, 2024).

Write a Response

Once I am prepared, I create an outline of my Response to their motion to dismiss. I want to make sure I hit every material contested point [multiple courts in this circuit have determined that plaintiffs can waive arguments - or abandon entire claims - by failing to respond to points made in a defendant's motion to dismiss. Marziano v. Cnty. of Marin, No. C-10-2740 EMC, 2010 WL 3895528, at 4 (N.D. Cal. Oct. 4, 2010); Qureshi v. Countrywide Home Loans, Inc., No. C09-4198 SBA, 2010 WL 841669, at 9 (N.D. Cal. Mar. 10, 2010); Jones v. Regents of Univ. of Cal., No. 21-CV-07844-JSW, 2022 WL 1137089, at *2 (N.D. Cal. Apr. 18, 2022). Ewing v. Freedom Forever, LLC, 23-CV-1240 JLS (AHG), 18-19 (S.D. Cal. Jan. 19, 2024)] but use wisdom and experience to know what of their baloney I can just ignore.

If I come to the conclusion that they are correct in some aspect of their motion to dismiss, but it is something I could fix with an amendment, I will make that clear to the judge. And if I don't think I can fix it with an amendment to my complaint, I'll concede it rather than lose credibility with a frivolous claim. For the do-it-yourself crowd out there, you might remind the court:

Pro se complaints are held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Where a plaintiff is proceeding pro se, the Court has an obligation “to construe the pleadings liberally and to afford the [plaintiff] the benefit of any doubt.” Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, pro se pleadings must still allege facts sufficient to allow a reviewing court to determine whether a claim has been stated. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Dismissal of a pro se complaint without leave to amend is proper only if it is “absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (internal quotations and citation omitted).

In writing my Response, I don't worry about making the first draft look pretty, I work to make it complete, addressing every point, not missing any rebuttal. After my first draft is complete, I ruthlessly cut redundancy and weak arguments, cut words and phrases that don't help, and aggressively get the same point across in fewer words. The inexperienced believe they need 20 pages to make sure the judge gets the point, the experienced know that getting the point across in a clear and concise 8 pages is better.

At the very end, when I can survey the entire document, I look at my caselaw again. Is my caselaw strong where I need it to be? Did I miss a case that would have helped me? Is my caselaw up to date - was there a new decision recently? Did something recently undermine their caselaw? Are my arguments clear even to a lay reader?

The above seems deceptively simple. The best situation is avoid pleading mistakes.

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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