Hi TCPAWorld! The Baroness here and I’ve got a new case for you.

Gerard Jackson v. Direct Building Supplies LLC out of the Middle District of Pennsylvania.

There, the defendant Direct Building Supplies filed a motion to dismiss and motion to strike class allegations in response to the plaintiff Gerard Jackson’s amended complaint.

Looking to the motion to dismiss standard first, it’s important to keep in mind that a Court generally considers only the allegations pled in the complaint, exhibits attached thereto, and facts of public record. Anything that is brought forth outside of the complaint is typically barred unless it is “integral” to the complaint and no dispute exists regarding the accuracy of the document.

Most should be aware of this, but it is one of the issue’s that arose in Jackson.

Direct Building attached an email that was described in the amended complaint to its reply brief in support of its motion to dismiss. But the Court found that while Jackson referenced the email in the Complaint, the Court did not find it was “integral.” It merely added context, but it was not necessary to establishing a TCPA claim.

Direct Building also attempted to insert new factual matter in its brief. More specifically, it attempted to turn the Court’s attention to various other lawsuits filed by Jackson wherein he asserts a different phone number for each. Direct Building argued that these “inconsistencies” concerning Jackson’s telephone number make him an inadequate class representative. However, the Court found this to be improper because at the motion to dismiss stage, it only analyzes the adequacy of the pleadings.

Such use of outside materials are more appropriate only after discovery has been conducted and at a motion for summary judgment phase.

Now turning substantively to Direct Building’s motion to dismiss, it argued that claims under section 227(c)’s private right of action are statutorily unavailable for calls placed to cellphones. More specifically, Direct Building argued that cellphone numbers are not the same as “residential” phone numbers.

Are cell phones the same as residential phone numbers?

Can you use a cell phone for personal and residential use?

Does Section 227(c) apply to cell phones?

Well, the Eastern District of Pennsylvania recently opined that “[t]he consensus in this Circuit is that Do Not Call claims may apply to cell phones.”

Therefore, the Court was not persuaded by Direct Building’s argument. Indeed, the weight of existing authority indicates that cellphone users may be considered residential telephone subscribers.

Direct Building also filed a motion to strike class allegations pursuant to Rule 12(f).

First, Direct Building argued that Jackson’s class definition constituted a fail-safe class.

A fail-safe class is one that defines its members by the plaintiff’s liability.

Direct Building argued that Jacksons’ class was a fail safe class because class membership turned on whether an individual received a “telephone solicitation” and by definition, a telephone solicitation is a call made without consent. But the Court stated that the word “solicitation” was no where to be found in the class definition. Therefore, it was not a fail safe.

Second, Direct Building argued that Jackson’s class should be stricken because of a lack of commonality and numerosity. Ultimately, however, the Court found its arguments premature and difficult to resolve without discovery.