September 27, 2022

Volume XII, Number 270

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September 27, 2022

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September 26, 2022

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CONCLUSORY ALLEGATIONS AIN’T GOING TO CUT IT: Texas Court Grants Defendant’s Motion to Dismiss

Happy Friday TCPA World, Count Kay here with a brief post to ease you into the weekend. Our team sees TCPA complaints every single day, and they all have the same basic/boilerplate allegations. So, it’s nice when we see a court put their foot down and dismiss these complaints that do nothing more than broadly allege the elements necessary for bringing a TCPA suit without detailing facts about how the defendant specifically violated the TCPA. This morning I was able to wake up with a smile after reading an opinion coming out of the Northern District of Texas, granting defendant’s motion to dismiss under FRCP 12(b)(6). The case is Shannon Powers, et al., Plaintiffs, v. One Technologies, LLC, Defendant, let’s break this one down:

Plaintiff Shannon Bowers brought suit against One Technologies, alleging that One Technologies sent her text messages in violation of both the TCPA and Texas Business and Commerce Code. For the TCPA claim, Plaintiff broadly alleged that Defendant failed to maintain and internal DNC list and sent the text messages at issue; for the TBCC claim she claims that Defendant failed to register with the state as a telemarketer. Defendant responded by filing a motion to dismiss, contending that Plaintiff failed to plead anything more than conclusory allegations and that (1) Plaintiff failed to illustrate that it sent the text messages, such that the TCPA claim should be dismissed; and (2) Defendant is not a telemarketer, such that the TBCC claim should also be dismissed. The Court issued its opinion rather bluntly, granting Defendant’s motion on the grounds that Plaintiff merely pled conclusory allegations asserting that Defendant is liable without identifying who its agents are or “much less pled an agent-principal relationship.” The court went on to explain that it is granting Defendant’s motion to dismiss Plaintiff’s TBCC claim because, plainly interpreting its scope, it does not apply to text messages.

Finally, finally, finally. A court putting its foot down to the same boilerplate allegations and not expanding the scope of a statute after plainly interpreting its language. We, and I’m sure you guys, love to see this. If you have any questions about this case or just generally want to talk shop, please reach out! That’s all for now folks, we wish you all an awesome weekend.

SHANNON POWERS, et al., Plaintiffs, v. ONE TECHNOLOGIES, LLC, Defendant., 3:21-CV-2091, 2022 WL 2992881 (N.D. Tex. July 28, 2022)

Case No. 3:21-CV-2091

© 2022 Troutman FirmNational Law Review, Volume XII, Number 210
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About this Author

Sean S. Kay Litigation and TCPA Attorney Troutman Law Firm
Associate Attorney

Sean Kay is the Count at Troutman Firm and of TCPAWorld. Sean's background is in both complex litigation as well as various areas of business law. Sean attended Arizona State University, where he earned a Bachelor of Arts degree in Business Law. Sean went on to attend Chapman University, Dale E. Fowler School of Law, where he was the co-founder of the Law and Economics society, and ultimately earned his Juris Doctor. Sean's practice at Troutman Firm is focused on class action defense litigation related to the Telephone Consumer Protection (TCPA) and compliance.

949-350-5612
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