Motion to dismiss granted - what does it mean to your TCPA lawsuit?
- Peter Schneider
- Mar 4
- 5 min read
Updated: Mar 9
Our good friend Eric Troutman once professed that every time a Telephone Consumer Protection Act case gets dismissed, an angel gets its wings.
Today he wrote an article about a TCPA pro-se plaintiff's lawsuit getting dismissed. "BACK TO BASICS: Court Dismisses Plaintiff’s TCPA Case Against Liberty Bankers On the Simplest Possible Grounds–But Its Lawyers Missed it"
First, a bit about the lawsuit Gutman v. Liberty Bankers Insurance, 2025 WL 615128 (D. N.J. Feb. 26, 2025).
In briefest terms, Plaintiff alleges that Defendant violated the Telephone Consumer Protection Act (“TCPA”) by calling Plaintiff’s cellphone using an automatic telephone dialing system (“ATDS”). On or about September 20, 2022, Plaintiff answered a phone call from Defendant whereby Defendant solicited the purchase of life insurance. (In addition to that September 20, 2022 call, Plaintiff alleges that he received multiple calls from Defendant. As alleged, the “calls were designed to facilitate a marketing scheme soliciting individuals, despite their registration” on state and federal do-not-call lists. Plaintiff alleges that he advised Defendant to stop its calls to no avail. Plaintiff filed his Complaint on June 17, 2024 in the Superior Court of New Jersey Law Division, Monmouth County, Special Civil Part. The Complaint purports to bring suit on behalf of a class that is not fully defined. Count One alleges a violation of “state and federal do-not-call list[s].” Count Two alleges a violation of the New Jersey Consumer Fraud Act (“NJCFA”), and common law fraud, harassment, and “tortious prohibitions against repeated solicitations.” Count Three alleges similar claims against John Doe defendants who are the alleged telemarketers and agents of Defendant who assisted in the fraud.
I did not read the actual complaint so outside of this opinion I do not understand the fraud allegation. You don't typically see fraud claims in most TCPA complaints. Liberty Banker's removed it to federal court and then moved to dismiss it. Their argument was:
In the Motion, Defendant argues that the Complaint fails to allege facts to support its causes of action. More specifically, the Complaint does not allege who made the calls, when the calls were made, or the numbers the calls were made from. For Count One, Defendant argues that the Court should grant its Motion because Plaintiff fails to allege that Defendant made a call that solicited him. For Count Two, Defendant argues that Plaintiff has not adequately alleged a violation of the NJCFA. Defendant does not address Plaintiff’s common law claims.
The Court had its own thoughts. Gutman forgot to make the ATDS allegations!
Although unclear, the Court infers from the Complaint that it seeks to assert two different claims under the TCPA: one for calling Plaintiff with an ATDS without his consent under 47 U.S.C. § 227(b)(1); and another for calling Plaintiff given that he is on the National Do-Not-Call Registry under 47 U.S.C. § 227(c)(5) . . . An ATDS means any equipment which has the capacity to store or produce telephone numbers, and to dial such numbers. 47 U.S.C. § 227(a)(1) . . . To sustain a claim under the TCPA for calling via an ATDS without prior consent, a plaintiff must establish three elements: “(1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.” . . . Although it may be difficult to plead the particulars of the alleged ATDS a defendant used, a plaintiff must allege facts that would allow a court to plausibly infer that a defendant used an ATDS . . . Accordingly, Plaintiff fails to state a claim under 47 U.S.C. § 227(b)(1).
And he forgot to allege the do-not-call violation elements!
Here, Plaintiff does not allege that he received multiple calls within a twelve-month period. Instead, Plaintiff simply alleges that “Defendant initiated multiple telephone calls to Plaintiff,” and “Defendant repeatedly solicited plaintiff.” . . . There is no allegation addressing when the phone calls were received or the period of time in which they were received. Importantly, although it is presumed that wireless subscribers who ask to be put on Do-Not-Call lists are “residential subscribers” under the TCPA, Plaintiff fails to allege that his cellular telephone number was not used for a business purpose . . . In short, although Plaintiff claims that he received calls from Defendant, the Complaint contains factually unsupported accusations and conclusions. Accordingly, Plaintiff also fails to state a claim under 47 U.S.C. § 227(c)(5) . . . Insofar as the Court finds that the Complaint does not state a claim under either relevant section of the TCPA, Count One will be dismissed without prejudice. In any subsequent amended complaint, Plaintiff shall set forth his separate claims under the TCPA as distinct counts.
Why does this happen? It could be a pro-se plaintiff just made mistakes doing something that is complicated and easy to get wrong, but often experienced attorneys make these same mistakes. But in this case the pro-se plaintiff is also a licensed attorney. Experienced plaintiffs/attorneys can suffer from this because most TCPA lawsuit settle, and the plaintiff/attorney just wants to do the minimum work if the case is going to settle quickly. They figure they can amend later if the defendant feels feisty, which is what happened here.
Plaintiff will be given leave to file an Amended Complaint within thirty days from the date of the accompanying Order, limited to addressing the deficiencies identified in this Opinion. An appropriate Order will follow.
There can be a cost to this because the judge is just allowing amendments "addressing the deficiencies identified in this Opinion" and a lazy complaint probably had other deficiencies that will be a problem later. Stuffing in more changes than allowed by the order opens the door to getting spanked like this other pro-se experienced.
But the overall issue isn't quite as rosy for the defendant as Troutman portrays in his blog. Gutman will amend and the lawsuit will continue. Of course the best practice is to avoid getting your complaint dismissed in the first place. This article might help you do that.
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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