The TCPA case that won't die - a cautionary tale
- Peter Schneider
- Aug 20
- 10 min read
Updated: Aug 21
I don't know if this pro se telephone consumer protection act case Escano v. Concord Auto Protect, Inc., No. 2:21-223 MV/GJF, 2025 LX 396631 (D.N.M. Aug. 19, 2025) is funny or sad.
It might be funny in that a pro se sued for unwanted calls, one defendant got the case dismissed, another got a judgment on the pleadings, and a third didn't appear and got away clean.
Mr. Escano appealed, lost on appeal, sued again, had that case dismissed on claim preclusion, and then went back to the original district court lawsuit and moved for permission to amend his complaint and restart the original lawsuit.
Predictably that motion was denied. Amazingly there was no discussion of sanctions. Lets take a deeper look.
On February 10, 2021, Plaintiff Ruben Escano ("Mr. Escano") sued Defendants in state court. His Complaint accused Defendants of violating the Telephone Consumer Protection Act ("TCPA") by sending to his cell phone at least 35 unsolicited communications regarding vehicle warranty packages. According to Mr. Escano, Concord Auto Protect, Inc. ("Concord") and ForeverCar, LLC ("ForeverCar") sent the communications on behalf of Liberty Mutual Group, Inc. and Liberty Mutual Auto and Home Services, LLC (together "Liberty Mutual"). Defendants removed the case to this Court on March 12, 2021. Subsequently, Liberty Mutual filed a Motion to Dismiss, ForeverCar filed a Motion for Judgment on the Pleadings, and Concord failed to appear. In her Proposed Findings of Fact and Conclusions of Law ("PFRD"), Judge Garza recommended that the presiding judge grant both Liberty Mutual and ForeverCar's motions and that Mr. Escano's TPCA claims against those defendants be dismissed with prejudice. She reasoned that the Complaint asserted only a vicarious liability claim against Liberty Mutual when it alleged that Liberty Mutual directed ForeverCar to place the calls. Additionally, Judge Garza determined that the Complaint did not plausibly allege that ForeverCar placed any calls. Because, in her view, the Complaint failed to state a TCPA claim against ForeverCar, Judge Garza concluded that Liberty Mutual could not be vicariously liable on the basis of a TCPA violation by ForeverCar. Judge Vazquez adopted in part Judge Garza's recommendation. She granted both Liberty Mutual and ForeverCar's motions but dismissed Mr. Escano's claims against Liberty Mutual and ForeverCar without prejudice. Just before the dismissal, however, Mr. Escano filed a motion to amend his complaint, attaching his proposed amended complaint ("PAC"). The PAC alleged that ForeverCar was directly liable for placing the calls to Mr. Escano, and that Liberty Mutual was vicariously liable because it directed ForeverCar to place the calls on Liberty Mutual's behalf. The PAC alternatively alleged that Liberty Mutual was directly liable and placed the calls, or if it neither placed the calls nor directed ForeverCar to place the calls, the two companies directed an unknown Doe caller to. In a second PFRD, Judge Garza recommended that the presiding judge deny Mr. Escano's motion to amend complaint. She reasoned that the PAC failed to state a claim for direct liability against Liberty Mutual because its alternative theory of liability directly contradicted its factual allegation that ForeverCar placed the calls. She interpreted Mr. Escano's direct liability and Doe caller vicarious liability claims against Liberty Mutual as his strategy to save his case from dismissal, not as alternatively-alleged, unknown facts. Moreover, she reasoned that the PAC did not adequately allege that Liberty Mutual was vicariously liable because it did not assert the necessary predicate that ForeverCar and Concordwere directly liable. As to this PFRD, Judge Vazquez adopted Judge Garza's recommendation in full. Mr. Escano neither objected to Judge Garza's recommendation that his direct liability claim be dismissed nor challenged that claim in his appeal to the Tenth Circuit. Consequently, the Tenth Circuit focused on Mr. Escano's vicarious liability claim against Liberty Mutual, affirming the district court as to dismissal of that claim. In accordance with the Tenth Circuit's mandate, Judge Vazquez denied Mr. Escano's motion to amend his complaint and dismissed his claims against Liberty Mutual and ForeverCar. Undeterred, Mr. Escano sued Liberty Mutual again. See Escano v. Liberty Ins. Group, No. 24-cv-590 MLG/KRS. In this subsequent suit, he alleged that Liberty Mutual was directly and, in the alternative, vicariously liable for the same calls at issue in this case. Liberty Mutual moved to dismiss, arguing that Mr. Escano's claims were subject to claim preclusion. Judge Garcia agreed and dismissed Mr. Escano's claims against Liberty Mutual without reaching their merits. That brings us to the present Motion. Having failed to object to the recommendation that his direct liability claim against Liberty Mutual be dismissed, having failed to challenge the dismissal of that claim on appeal, and having been precluded from asserting that claim in a different case, Mr. Escano now urges the Court to reconsider its dismissal of his direct liability claim against Liberty Mutual. Specifically, he seeks relief from Judge Vazquez's judgment and a reopening of his case. According to Mr. Escano, the sufficiency of his alternatively alleged direct liability claims against Liberty Mutual has "yet to be evaluated by any court. The instant [M]otion seeks to rectify this loose end."
I like to see things for myself, so I went and looked at Mr. Escano's original complaint.
This is a representative sampling of his pleadings.
Beginning on or about February 20, 2020 and continuing to February 5, 2021 or about that date, Defendant CONCORD AUTO PROTECT, INC.; Defendant FOREVERCAR, LLC; Defendant LIBERTY MUTUAL GROUP, INC.; Defendant LIBERTY MUTUAL AUTO AND HOME SERVICES, LLC; Defendant ALON SALMAN: Defendant DOES 1~ 10 INCLUSIVE AND ALL OF THEM (hereinafter and collectively, “Defendants”); and/or their agents placed, and/or directed the placement of, at least thirty-five automatically-disled and unsolicited communications to my celluler telephone regarding extended vehicle warranties or vehicle service plans {hereinafter, “communications”). The communications include at least thirteen calls and at least twenty-two text messages. Additionally, my phone number is on the Federal Communication Commission’s “National Do Not Call” list . . . On or about February 20, 2020 and dialing from the phone number 561-530-2312, Defendant CONCCRD AUTO PROTECT, INC. and Defendant ALON SALMAN, or their agents, used an ATDS, or effectively-similar equipment, to send an unsolicited text message to my cell phone . . . On or about May 13, 2020 and calling from the phone number 435-291-3873, Defendant FOREVERCAR, LLC, or its agents, used an ATDS, or effectively-similar equipment, to call my cell phone with an artificial or prerecorded message, while using a calling system that utilized two or more active phone lines. Defendant FOREVERCAR, LLC stated neither the true name of its company nor a callback number in the prerecorded message. As such, Defendant FOREVERCAR, LLC willfully or knowingly violated at least six distinct prohibitions of the TCPA . . .
Noted above, ForeverCar moved to dismiss the complaint, which the magistrate judge recommended granting. If you recall, the root of Mr. Escano's problems at the district court level was the ruling that the Complaint did not plausibly allege that ForeverCar placed any calls.
ForeverCar contends Mr. Escano has failed to sufficiently allege facts “showing that ForeverCar made any of the thirteen telephone calls” of which Mr. Escano complains. ForeverCar argues that the Complaint fails to connect the thirteen different phone numbers to ForeverCar, and, in fact, that the Complaint alleges the callers identified “entities other than ForeverCar[.]” . . . In his response, Mr. Escano maintains that ForeverCar placed the thirteen phone calls. (Doc. 37 at 3). As a specific example, he contends that the phone representative who identified himself as a Liberty Mutual employee during the January 19, 2021 call offered “Platinum” and “Platinum Plus” vehicle service plans, but that Liberty Mutual does not sell vehicle service plans directly to consumers. Id. at 4. Rather, “[t]he only company that the Liberty Defendants partner with to sell their [vehicle service plans] is ForeverCar[,] [a]nd the two kinds of [vehicle service plans] that ForeverCar offers are called ‘Platinum’ and ‘Platinum Plus.’” Id. From this, Mr. Escano draws the conclusion that “the phone representative [Mr. Escano] spoke with was a ForeverCar employee.” However, the Complaint concedes that, in each of these calls, the phone representative or automated message “stated neither the true name of its company nor a callback number in the message.” Despite this, Mr. Escano’s insists that the Court can infer from other facts concerning the nature of ForeverCar’s business and its relationship with Liberty Mutual that ForeverCar made the thirteen calls. That is, he asks the Court to draw this inference because (1) the January 19, 2021 caller who identified himself as a Liberty Mutual employee was offering vehicle service contracts, (2) the caller was specifically offering Platinum and Platinum Plus plans, (3) Liberty Mutual does not offer vehicle service plans directly to consumers, (4) ForeverCar does offer vehicle service plans and, particularly, the Platinum and Platinum Plus plans, and (5) ForeverCar is the only company who sells vehicle service plans to Liberty Mutual. The problem, however, is that Mr. Escano fails to allege any of these contextual facts in his Complaint, but rather offers them only in his response to the Motion for Judgment on the Pleadings See Lexon Ins. Co., 2021 WL 1145160 (“For a party to survive a motion for judgment on the pleadings, a complaint must contain sufficient facts to state a claim to relief that is plausible on its face.”); [This was the root of his problem in the original complaint - allegations have to be in the complaint, allegations from responses to dispositive motions don't count and Mr. Escano didn't seem to realize this]
Mr. Escano did come back with a proposed amended complaint with better allegations against ForeverCar:
During that May 13, 2020 call, a ForeverCar representative offered Plaintiff either of two different VSPs, which the representative called the “Platinum plan” and “Platinum Plus plan.” . . . During that January 19, 2021 call, a ForeverCar phone representative offered Plaintiff either of two different VSPs, which the phone representative called the “Platinum plan” and “Platinum Plus plan.” . . . During the very last call, on January 26, 2021, a ForeverCar representative referenced a model of vehicle that Plaintiff had discussed only with the ForeverCar representative from the January 19, 2021 call . . . ForeverCar offers at least two different kinds of VSPs, which it refers to as the “Platinum plan” and “Platinum Plus plan.” See Getting Started | ForeverCar Vehicle Service Plans, ForeverCar, https://www.forevercar.com/getting-started, archived at https://perma.cc/8KKP-SH6E . . . ForeverCar’s website states that it contacts potential customers, “by voice or text using automatic dialing equipment.” ForeverCar Consent to Electronic Communications, ForeverCar, https://www.forevercar.com/consent-to-electronic-communications archived at https://perma.cc/E4G7-7X86 . . .
But the magistrate judge didn't see this as enough:
The Court disagrees with Mr. Escano that the inquiry of who placed these thirteen calls “should end” with the bare allegation that ForeverCar made the calls . . . The Court is not required to accept this allegation as true. See Papasan v. Allain, 478 U.S. 265, 286 (1986) (stating courts are “not bound to accept as true legal conclusions couched as factual allegation”) . . . a plaintiff must at least describe, in layman’s terms, the facts about the calls or circumstances surrounding the calls that make it plausible that they were made using an [ATDS].”) . . . That is not to say, however, as ForeverCar would have it, that the proposed amendment fails to adequately allege ForeverCar made the calls simply because none of the callers mentioned ForeverCar by name. The Court can imagine a variety of other factual allegations that could adequately connect ForeverCar to the thirteen calls. As such, the Court must consider the other factual allegations in the Proposed Amended Complaint to determine whether Mr. Escano adequately alleges it was ForeverCar who made the thirteen offending calls. In the January 19, 2021 call, the caller “told Plaintiff that the company he was calling from was Liberty Mutual, he works for Liberty Mutual, and the VSP he was offering was from Liberty Mutual.” Therefore, Mr. Escano alleges, the thirteen calls were placed by ForeverCar. The Court cannot deduce from these facts any plausibility, as opposed to conceivability, that it was ForeverCar who made the calls . . . requiring a plaintiff to “nudge[] their claims across the line from conceivable to plausible”) . . . a caller’s mere mention or solicitation of a product also offered by the defendant—in this case the Platinum and Platinum Plus plans—which the Court accepts as true, is not enough to adequately allege it was therefore the defendant who made the offending phone call.
Mr. Escano filed an appeal with the 10th circuit that did not go well. If he had read our how to document solicitation calls, he might have been able to come to court with better evidence against ForeverCar.
Mr. Escano does not challenge the district court’s dismissal of his original claims against Liberty Mutual and ForeverCar. Instead, his opening brief focuses on the court’s denial of leave to amend on the ground of futility. We generally review the denial of a motion to amend for abuse of discretion, but “[w]hen a district court denies amendment based on futility, our review for abuse of discretion includes de novo review of the legal basis for the finding of futility.” The district court held the PAC did not supply enough facts to plausibly plead that it was ForeverCar who made the unwanted calls. The court agreed with the magistrate judge, who determined that the bare allegation that ForeverCar made the calls is a legal conclusion that the court was not required to accept as true. That assertion, the district court held, “merely parrots the language of the TCPA,” and “without any factual allegations to support it, is insufficient to state a plausible claim for relief.” Mr. Escano argues that the district court impermissibly employed a heightened fact-pleading standard rather than the refined notice-pleading standard discussed in Robbins. He asserts it was sufficient, standing alone, that he alleged ForeverCar made the unwanted calls: “When the Complaint alleges that ForeverCar and Liberty Mutual took specific actions (and those allegations do not require legal interpretation to understand), then those allegations are indeed factual, and must be accepted as true at the pleading stage.” We disagree. The unsupported allegation that ForeverCar made the unwanted calls is the type of “naked assertion[] devoid of further factual enhancement” and “mere conclusory statement[]” that Iqbal held to be insufficient to state a plausible claim. 556 U.S. at 678 (internal quotation marks omitted). The PAC contains details regarding the timing and content of the calls. With regard to who made the calls, however, the PAC simply states it was ForeverCar, without supplying any facts to support that allegation. It thus presents “an unadorned, the-defendant-unlawfully-harmed-me accusation,” which is insufficient.
Which brings us full circle to the start of the story and his motion to reopen the case.
The lesson here is, you have to have the goods to tie the defendants to the unwanted calls. Mr. Escano's had options - two I can think of right now is he could have purchased a service plan or other otherwise signed up for service. Or asked for a hard copy of service plan to be emailed to him.
This "reopened" case isn't done as of this moment, but Mr. Escano is walking in the direction of the defendants getting sanctions against him under FRCP 11 and 28 U.S. Code § 1927. Sometimes it is important to know when you just don't have the goods and let the case go.
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.
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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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