Unsolicited review of a pro-se complaint
- Peter Schneider
- 22 hours ago
- 5 min read
This blog is here in large part to help pro-se plaintiffs bring better cases so this is an unsolicited review of federal lawsuit Ortega v. Freedom Solar Servs., No. SA-24-CV-00662-FB, 2026 LX 233585 (W.D. Tex. May 15, 2026) which just got dismissed under FRCP 12(b)(6) for failure to state a claim.
I pulled the complaint and this post is not to criticize Mr. Ortega, but to help everyone learn so they can come back better.
I will quote the "facts" section of the complaint and give my commentary. The fact section is very brief and the judge will find it is insufficient to state a claim.
14. Plaintiff registered his cellular telephone number, 210-744-9663 ("Plaintiff's Number"), with the National Do Not Call Registry in 2012. I like the active voice "Plaintiff registered his cellular telephone number". Some judges will dismiss a DNC violation claim if the plaintiff does not plead that he/she did registered the phone number on the DNC list. 15. Plaintiff has never granted express consent to Defendant, or any entity affiliated with them, to receive telemarketing calls. Good good. 16. Plaintiff is, and has been at all times relevant to this action, the regular and sole user of his cellular telephone number 210-744-9663. I don't like listing my client's phone number publicly, but sometimes it is required. Each court is a little different, but judges require some amount of specifying the calling number, the called number, the date of the call, and factual details from the call - what was said or sold and so on. So in a case like this where the complaint is short on other details, usually listing the called number is going to be needed to avoid a motion to dismiss for insufficient notice pleading. But even here the judge will find not enough factual detail. 17. Plaintiff uses his cellular phone primarily for personal, residential, and household purposes. This should be enough but often this will be attacked as conclusory, so another sentence of specific examples of residential use is good. For example using it to call friends / family. 18. Plaintiff’s Number is designated for residential use, as it is assigned to a consumer telephone exchange service and is not assigned to a telephone exchange service designated for business use. 19. Defendant initiated a campaign of unsolicited telemarketing calls to Plaintiff's Number. The purpose of these calls was to generate sales leads and solicit Plaintiff to purchase Defendant's solar panel installation services. See my notes below the quoted section. 20. On numerous occasions during these calls, Plaintiff explicitly stated to Defendant's representatives that he was not interested and demanded that they stop calling him. Despite these direct, oral do-not-call requests, Defendant continued to call Plaintiff. The judge is going to nock the plaintiff for not being more specific about each call. See my notes below the quoted section. 21. Defendant called using multiple spoofed telephone numbers with the a non-exhaustive list of non-spoofed numbers utilized being: 346-342-4602 on May 23, 2024, at 9:58 AM, and 830-431-9821 on May 31, 2024. See my notes below the quoted section. 22. As a direct and proximate result of Defendant's actions, Plaintiff has suffered concrete harm. Defendant's repeated and unwanted calls unlawfully intruded upon Plaintiff's privacy, causing significant annoyance, frustration, and harassment. These calls also encumbered Plaintiff's personal property by occupying his telephone line, consuming device battery, and diminishing cellular bandwidth, thereby impeding his ability to use his phone for legitimate and critical communications.
This dismissal is an example of why we like to include a call matrix in our complaints. Frankly it is scary how little time a court clerk might spend reading the complaint and a call matrix like this summarizes all the facts in an eye catching way, and makes it easy to add the little details that are often the difference from winning and losing.
In my opinion there was enough there that Mr. Ortega should have survived the motion to dismiss, but it was borderline. A few more facts, presented crisply, might well have made the difference.
Defendant also argues that Mr. Ortega has failed to plead sufficient facts related to the dates, number, and contents of the alleged calls to state a claim for damages under the TCPA and the Texas Business and Commerce Code. The undersigned agrees, and recommends that the District Court dismiss Plaintiff's claims for injunctive relief and damages under both the TCPA and Texas Business and Commerce Code, and that it decline to exercise supplemental jurisdiction over his remaining state law claims.
Citing several district court decisions from within and outside this Circuit where claims brought under Section 227(c)(5) of the TCPA were dismissed for failure to allege sufficient facts about the "source, time, and frequency of the calls," Defendant argues that Mr. Ortega's pleadings do not contain sufficient detail.
While Mr. Ortega pleads certain basic facts, such as his phone number that received the unwanted calls and the dates of two calls, he does not plead the number of unwanted calls he allegedly received, the names of the callers, nor details about the contents of any specific call.
Although Mr. Ortega's pleadings identify the dates of two unwanted calls, this level of detail is analogous to the level of detail provided in pleadings that have been found insufficient to state a claim. Notice that all these issues are addressed in filling out the call matrix above. The call matrix is your friend.
Although Mr. Ortega's pleadings identify the dates of two unwanted calls, this level of detail is analogous to the level of detail provided in pleadings that have been found insufficient to state a claim. See Wass v. Amerigroup Texas, Inc., 4:20-cv-00445-BP, 2020 WL 4464361, (N.D. Tex. Aug. 3, 2020) (plaintiff failed to state a TCPA claim by alleging the date and approximate time of only one of five unwanted calls, without pleading the number of the caller). Mr. Ortega's references to a campaign of unsolicited calls do not provide Defendant with the "required notice about what phone calls will be at issue in this case." Callier v. MultiPlan, Inc., No. EP-20-CV-00318-FM, 2021 WL 8053527 (W.D. Tex. Aug. 26, 2021) (plaintiff stated a TCPA claim by pleading the time, date, and phone numbers of seven of nine unwanted calls).
In my opinion the judge is sending a signal to Mr. Ortega that he isn't liked because these deficiencies can easily be fixed by amendment and the judge didn't give Mr. Ortega an automatic opportunity to amend. But if Mr. Ortega hustles up an amended complaint pronto that addresses the issues and moves the court to permit the amendment there are good odds it will be allowed and the case will move forward.
Got a Case Like This?
If you’ve encountered similar issues 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 constitute legal advice. If you're considering suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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