“Cavalier and Unprofessional”: Court Blasts TCPA Plaintiff for Failing to Allege Key Facts; Dismisses Complaint
Well this week he suffered a very different fate recently against another energy company.
In Bank v. Spark Energy, 19-CV-4478 (PKC) (LB), 2020 U.S. Dist. LEXIS 175830 (E.D.N.Y. Sept. 24, 2020) the Defendant moved to dismiss Mr. Bank’s TCPA complaint because it failed to allege facts connecting Spark to the calls at issue and also because Plaintiff failed to allege his number was on the DNC list (with respect to the DNC claims in the complaint.) At oral argument Mr. Bank apparently informed the Court that he had intentionally avoided supplying certain allegations of fact—such as that he was connected to a Spark employee as part of a warm transfer during the critical call—in order to avoid unnecessary additional briefing.
As the allegations of the complaint were simply insufficient without the withheld allegations the Court granted the Defendant’s motion to dismiss. The Court went further, however, and informed Mr. Bank that it would not allow the lawsuit to continue until Plaintiff explained further his decision to avoid making critical allegations in the first place:
Because the Court strongly disapproves of Plaintiff’s cavalier and unprofessional attitude with respect to the drafting of his Complaint—i.e., deliberately omitting critical factual allegations based on specious, unconvincing, and seemingly ad hoc reasoning—the Court will require Plaintiff to show cause why the Court should overlook his knowing and deliberate failure to include factual allegations essential to his TCPA claims and why he should be permitted to file an amended complaint…
We’ll let you know how this turns out.