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California District Court Sends Plaintiff Back to the Drawing Board to Clarify Which of Six Defendants Actually Called Him

Plaintiffs often employ the spaghetti-against-the-wall tactic of asserting every conceivable claim against every conceivable defendant. But as a recent decision from the Southern District of California confirms, this strategy is not without risk.

In Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court dismissed a TCPA claim with leave to amend because the plaintiff had failed to allege a fundamental fact: which of the six named defendants actually called him.

The plaintiff claimed that he had received unsolicited automated calls in which the caller tried to sell him solar panels. When he filed suit, however, he sued three different companies, plus three individuals (two officers of one corporate defendant, and one officer of another). One of the corporate defendants moved to dismiss, arguing that the plaintiff had failed to allege facts showing that it had called plaintiff or that an ATDS had been used to make the calls.

With respect to the ATDS allegations, the court sided with the plaintiff. Because the complaint alleged that the calls had begun with a “pause or click,” the court found it reasonable to infer that the equipment that had been used to make the calls might satisfy the ATDS definition.

With respect to who “made” the calls, however, the court found that the complaint fell short. “When suing multiple defendants,” the court explained, “plaintiff must differentiate his allegations against each defendant and should not lump defendants together without distinguishing the alleged wrongs amongst defendants.” The court also rejected the argument that certain defendants were liable vicariously or under an alter ego theory. The court noted that the complaint often used the defendants’ names interchangeably and asserted inconsistent allegations concerning which defendants controlled the others. Thus, the court concluded, “Plaintiff has failed to adequately allege the first element of a TCPA claim, namely that [defendant], or an agent acting on its behalf, called a telephone number belonging to Plaintiff.”

Ewing illustrates the core requirement of Rule 8: that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The court enforced this rule by sending plaintiff back to the drawing board to allege facts showing each of the six defendants’ specific involvement in making the calls. Parties on both sides of the “v” should take note of this decision.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.


About this Author

Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in state and federal courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. He is also a founder of the firm’s TCPA Team; the senior editor of the TCPA Blog, which provides important information and insight...

Matthew J. Adler, attorney, Drinker Bilddle, San Francisco, healthcare, telecommunications

Matthew J. Adler represents clients across a broad range of industries, including health care, retail and telecommunications. He focuses his practice on complex commercial disputes, multi-state consumer class actions and product liability litigation. Matt has litigated cases in state and federal court, at both the trial and appellate level, and he is particularly skilled in pre-trial motion practice.

Matthew is a regular on the firm's Associates Committee and a regular contributor to Drinker Biddle’s Telephone Consumer Protection Act (“TCPA”) Blog, which regularly provides news and insights concerning TCPA. Prior to joining the firm, Matt worked as a staff attorney for the Supreme Court of California. He also served as a judicial extern while in Law School for Honorable Kathryn M. Werdegar, Associate Justice of the Supreme Court of California.