TCPA defendant loses dumb motion to dismiss
- Peter Schneider
- Oct 16
- 3 min read
Some telephone consumer protection act defendants reflexively file motions to dismiss. Hey it is an easy money maker for their defense attorney. Today we look at the goat rodeo that is Smith v. Equrra, LLC, No. 25-10975, 2025 LX 436962 (E.D. Mich. Oct. 16, 2025) for what we can learn.
Sometimes the motion to dismiss is so weak that when it is denied it just comes off as dumb to have filed it. In this lawsuit it is compounded by either weak allegations or a judge that might be a little behind the curve. I'm taking the background from the Order. The plaintiff Mr. Smith alleged the defendant Equrra LLC solicited him via text messages many times in fairly rapid succession despite his number being listed in the national-do-not-call-registry.
Mr. Smith opted out [a common misnomer in court, you can't opt out of what you didn't opt in]. That didn't stop the calls and Mr. Smith sued Equrra. Equerra moved to dismiss.
§ 64.1200(d)
Mr. Smith claimed that as he proactively asked for the calls to stop and they didn't, Equrra must not have had written procedures for maintaining an opt out list
The core of Defendant's argument is that Plaintiff's complaint merely alleges that it lacks written procedures and provides no supporting evidence to substantiate this claim.
This argument fell flat. Mr. Smith alleged Equrra to have called him more than 30 days after Mr. Smith's DNC request, and further alleged:
"Defendant had the ability to immediately opt Plaintiff out of further communications, but chose not to do so." . . . Defendant's refusal to honor his opt-out requests by continuing to text message him demonstrates that it failed to institute procedures for maintaining a list of persons who request not to receive text messages from Defendant, that it does not provide training to its personnel engaged in telemarketing, that it does not maintain a standalone do-not call list, and that it does not maintain the required procedures for handling and processing opt-out requests.
§ 64.1200(c)
Equrra contends that Plaintiff fails to provide evidence demonstrating that his telephone number was registered on the National Do Not Call Registry.
The complaint alleges that Plaintiff registered his phone number on the National Do Not Call Registry on or about June 18, 2011. This allegation is sufficient to establish that Plaintiff's phone number was on the National Do Not Call Registry at all relevant times.
Prior Consent
Defendant argues that Plaintiff fails to allege that the messages were sent without prior express consent. However, consent is an affirmative defense that a plaintiff is not required to plead to assert a TCPA claim.
So three silly arguments that probably netted the defense attorney $10k in legal fees.
Got a Case Like This?
If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
Are telemarketers bothering you in Washington, Oregon, or Montana?
I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.
📞 Call: 206-800-6000 / 971-800-6000
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Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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