TMobile bungles admissions in a telemarketing case, court turns off their appeal
- Peter Schneider
- Aug 22
- 7 min read
Have you ever felt like TMobile took to long to get to your complaint? So did Mr. Persichetti, but probably unlike you, he did more than just leave a bad review in T-Mobile v. Persichetti 2025 WL 2416172 (GA App. Aug. 21, 2025).
Apparently after receiving over 100 solicitation calls, he sued, and T-Mobile didn't have enough lawyers to get to the lawsuit such that Mr. Persichetti moved for a default judgment. Along the way he did something smart I've seen too few plaintiffs in his position do - he sent T-Mobile requests for admissions, which went unanswered and were key to his getting - and keeping - a $150,000 judgment.
Mr. Persichetti used the requests for admission in just the perfect place - a recalcitrant defendant who thinks rolling over and playing dead is a good move, because often it is. Plaintiffs are often in a catch-22 situation - they have allegations sufficient to survive a motion to dismiss, but allegations weak enough that a judge won't give a default judgment.
Requests for admission can bridge that gap.
T-Mobile USA, Inc. appeals from the trial court’s award of damages following the entry of default judgment against it in William Persichetti’s action for violations of the Telephone Consumer Protection Act (“TCPA”), 47 USC § 227, et seq., and the regulations promulgated thereunder, 47 CFR § 64.1200 (c). T-Mobile contends that the trial court erred in awarding damages in an amount greater than the relief sought in Persichetti’s complaint and in denying T-Mobile’s motion to withdraw admissions. For the reasons that follow, we affirm in part and reverse in part. In his complaint, Persichetti, a T-Mobile subscriber, alleged that T-Mobile, in violation of the TCPA, repeatedly sent telemarketing text messages to his cellular telephone number despite his oral and written requests that T-Mobile stop sending him the unwanted text messages, his registration on the national do-not-call registry, and a prior lawsuit against T-Mobile for alleged violations of the TCPA. See Persichetti v. T-Mobile United States, 479 FSupp.3d 1333 (N.D. Ga. 2020). As damages, Persichetti sought up to $500 for each violation and requested that the court award treble damages because T-Mobile’s conduct was willful and knowing. See 47 USC § 227 (c) (5). Persichetti also sought attorney fees and expenses pursuant to OCGA § 13-6-11 and “such additional relief as deemed just and proper.” T-Mobile was served with Persichetti’s complaint on May 9, 2024, and when T-Mobile failed to answer, Persichetti moved for default judgment on September 30, 2024.Persichetti also served T-Mobile with discovery requests, including requests for admission, on August 6, 2024. At the scheduled hearing on Persichetti’s motion for default judgment, the trial court was informed that, the night before the hearing, T-Mobile had served Persichetti with a motion to open the default and a motion to withdraw admissions.2 T-Mobile also informed the trial court that it had responded to discovery, and Persichetti provided the court with the responses he had received. 3 The trial court then heard argument on all three motions and orally denied the motion to open the default and the motion to withdraw admissions. Next, the trial court conducted a damages hearing on Persichetti’s motion for default judgment. To support his claim for damages, Persichetti introduced the discovery requests served on T-Mobile, including Request for Admission No. 35, which stated: “Since May 24, 2021, T-Mobile has initiated more than 100 text messages to Plaintiff’s telephone number for the purpose of encouraging the purchase of products and/or services from the Defendant.” Based on the admissions established by T-Mobile’s failure to respond, Persichetti sought $50,000 in base statutory damages ($500 per call), asked that the damages be trebled, and requested that T-Mobile be enjoined from continuing to make telemarketing calls to Persichetti’s telephone number. T-Mobile objected to the relief requested by Persichetti and argued that there was no evidence that there were more than 100 text messages to Persichetti’s telephone number. Before ruling that it would grant the judgment sought by Persichetti, the trial court noted that T-Mobile, in its belated response to Request for Admission No. 35, had stated that it had made reasonable inquiry and lacked sufficient evidence to admit or deny the request. The trial court subsequently issued a written Default Judgment in which it concluded that T-Mobile was in default, the facts set forth in the requests for admission were deem established by virtue of T-Mobile’s failure to respond, and T-Mobile had initiated 100 telemarketing text messages to Persichetti’s telephone number in willful and knowing violation of the do-not-call regulations. As damages, the trial court awarded Persichetti $150,000 ($500 for each of the 100 text messages, trebled), plus costs, and enjoined T-Mobile from making telemarketing calls to Persichetti’s telephone number. This appeal followed. T-Mobile contends that the trial court erred by awarding relief greater than the relief sought in the complaint. It argues that Persichetti is only entitled to monetary damages for the three text messages referenced in the complaint and that injunctive relief was improper because it was not requested in the complaint. Initially, we note that T-Mobile does not challenge the trial court’s grant of a default judgment on the issue of its liability. When a case is in default, the plaintiff is entitled to judgment “as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, ”unless the action involves unliquidated damages, “in which event the plaintiff shall be required to introduce evidence and establish the amount of damages. . . .” OCGA § 9-11-55 (a). In other words, by virtue of its default, T-Mobile “is in a position of having admitted each and every material allegation of[Persichetti’s] complaint except as to the amount of damages suffered by [Persichetti].” (Citation and punctuation omitted.) Paris v. E. Michael Ruberti, LLC, 355 Ga. App. 748, 752 (845 SE2d 720) (2020). And “defenses which go to the right of recovery are not available to [T-Mobile] in default even though the same defense may also go to the assessment of damages.” (Citation and punctuation omitted.) However, as T-Mobile correctly points out, ”[a] judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.” OCGA § 9-11-54 (c) (1). Here, Persichetti’s complaint alleged that despite his extensive efforts to dissuadeT-Mobile from initiating telemarketing calls, T-Mobile persisted, continuing to make such calls to Persichetti’s telephone number in subsequent months. Persichetti alleged as examples three specific text messages. Contrary to T-Mobile’s assertion, the complaint did not limit its damages claim to those three examples, and the trial court was authorized to determine the amount of the monetary damages award based on the evidence presented. See OCGA § 9-11-55 (a); Floyd v. First Union Nat.Bank of Ga., 203 Ga.App. 788, 789 (1) (417 SE2d 725) (1992) (where demand for judgment prayed for damages in an “open-ended” amount, the court was authorized to determine the amount of the award, and its determination would not conflict with OCGA § 9-11-54(c)(1)). By virtue of its failure to respond to the requests for admission, T-Mobile admitted that it initiated over 100 telemarketing text messages to Persichetti’s telephone number. See OCGA § 9-11-36 (a) (2).4 And “[a]ny matter admitted under OCGA § 9–11–36 is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.” (Citation and punctuation omitted.) Brown v. Morton,274 Ga.App. 208, 209 (617 SE2d 198) (2005); see McClarty v. Trigild Inc., 339 Ga. App. 691, 693 (794 SE2d 408) (2016) (an admission under OCGA § 9-11-36 is substantive evidence and “relieves the opposing party from the need of any evidence, as to the matter admitted”) (citation and punctuation omitted). Because the trial court denied T-Mobile’s request to withdraw its admissions, T-Mobile is bound by its admission of the basis for Persichetti’s monetary damages claim, and T-Mobile’s challenge to the trial court’s award of those amounts fails. See Crumpton v. Samples, 365 Ga. App. 143, 149 (2) (877 SE2d 683) (2022) (rejecting challenge to final judgment based on argument that trial court erred in denying motion to withdraw requests for admission in light of conclusion that trial court properly denied motion to withdraw). T-Mobile contends that the trial court erred in failing to conduct the proper analysis of its motion to withdraw admissions and in denying the motion. During the motions hearing conducted by the trial court in this case, after the trial court denied T-Mobile’s motion to open default, Persichetti’s counsel inquired whether the trial court was also denying T-Mobile’s motion to withdraw admissions. The trial court responded, “Yes, ”without elaboration. The record on appeal does not reflect that this oral pronouncement was ever reduced to writing. As a result, we have no ruling to review on appeal. See Steedley v. Gilbreth, 352 Ga. App. 179, 185 (3) (834 SE2d 301) (2019) (“[A]n oral order is not final nor appealable until and unless it is reduced to writing, signed by the judge, and filed with the clerk.”); see also Mondy v. Magnolia Advanced Materials, 303 Ga. 764, 772 (4) (b) (815 SE2d 70) (2018) (“[U]ntil an oral pronouncement is memorialized the trial judge has broad discretion to amend, alter, or completely change his decision, and any discrepancy between the oral pronouncement and the written ruling will be resolved in favor of the written judgment.”)
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
📧 Email: peter@nwdebtresolution.com
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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