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Court Dismisses TCPA Claim, Finds Plaintiff’s Arguments Waived

The Central District of California recently dismissed claims arising from allegedly unsolicited calls using an ATDS, finding that the plaintiff had waived her arguments by failing to address the defendant’s arguments in her response to the defendant’s motion to dismiss. See Hollis v. LVNV Funding, No. 18-1866, 2019 WL 1091336 (C.D. Cal. Jan. 2, 2019). The court found the dismissal justifiable given the plaintiff’s failure to plead her claim with specificity and her failure to cite to the specific portion of the TCPA that she believed had been violated. Id. at *5.

The plaintiff had alleged that the defendant “placed repeated and harassing telephone calls to [her] cell phone” using “an automatic telephone dialing system or pre-recorded message” to collect a debt. Id at *1. She further alleged that the calls either “began with a noticeable pause or delay” or were “immediately disconnected upon being answered.” Id.She added that, despite her instructions to the defendant to stop calling her, the defendant continued to make calls that were “upsetting, harassing, and disruptive.” Id.

The defendant moved to dismiss, arguing that the plaintiff’s allegations were “nothing more than a formulaic recitation of a cause of action.” Id. at *5 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The court agreed, finding that the complaint was “almost entirely devoid of specific factual allegations.”  Hollis, 2019 WL 1091336 at *5. The court also noted that, although the plaintiff was aware of the defendant’s arguments, she had failed to address them either in her opposition or by amending her complaint. Id.Accordingly, the court found the plaintiff waived her TCPA claim and dismissed it without prejudice. Id. at *5-6.

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About this Author

Christina Chapin, Drinker Biddle, Trial Lawyer
Associate

Christina R. Chapin assists clients with various aspects of trial preparation, including legal research and the drafting of motions and other legal memoranda.

As a summer associate at Drinker Biddle, she researched and drafted memoranda on issues including cross-border discovery conflicts and tortious interference claims.

Christina served as a judicial extern for the Hon. Thomas M. Durkin of the District Court for the Northern District of Illinois and the Hon. Mary Anne Mason of the Illinois Appellate Court. 

(312) 569-1106
Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney
Partner

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 about the Telephone Consumer Protection Act; and a senior member of the firm's Class Actions Team and interdisciplinary Retail Industry Team.

Committed to civil rights and civic engagement, Michael has spearheaded public interest matters meant to prevent racial discrimination, protect the rights of the disabled and incarcerated, prohibit the use of unverifiable voting systems, and preclude the misuse of our laws and abuse of our civil justice system. One of his most recent public interest matters resulted in a landmark settlement that put an end to decades of discrimination by administrative agencies that had refused to make important information about public benefits programs available in alternative formats that were accessible to the blind and visually impaired. As a result of the settlement, thousands of class members have already requested and received documents in accessible alternative formats.

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