January 19, 2021

Volume XI, Number 19

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January 18, 2021

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Court Grants Motion to Dismiss TCPA Serial Plaintiff’s Complaint

Happy Friday afternoon, TCPAWorld. Well, you may be glad to know that a TCPA serial plaintiff, Craig Cunningham’s complaint (Yes, that infamous pro se plaintiff, Craig Cunningham) just got dismissed by a district court in the Ninth Circuit under Rule 12(b)(6). See Cunningham v. Chiorzi, No. 3:20-cv-386-SI, 2020 U.S. Dist. LEXIS 102464 (D. Or. June 11, 2020).

Cunningham alleges that he received at least 22 sexually explicit text messages soliciting him to join adult dating websites and to purchase a product called “Bio-Viraxegan.” He asserts that the text messages were caused to be sent by the defendant via an ATDS. However, the text messages did not identify the sender, and Cunningham does not allege any facts based on which he believes defendant is the responsible person.

Defendant filed a Rule 12(b)(6) motion to dismiss the complaint. In the court’s discussion, the court points out at least three major deficiencies in the complaint: First, no additional facts to support the ATDS assertion beyond a single statement that “[e]ach call was sent by an ATDS;” second, no indication as to the dates for the alleged text messages; and third, also the most fundemental one, no factual allegations to support a claim against this defendant. Cunningham merely states that “Plaintiff identified the Defendant Shaun Chiorzi aka Shaun Ghiorzi[] is the person profiting and directing these text messages to be sent to the Plaintiff.”

According to the court’s analysis:

The Complaint fails to state a claim on which relief can be granted because its threadbare factual allegations amount to a mere recitation of the elements of a TCPA claim and are speculative.

Hopefully this can send another signal to these serial plaintiffs that their complaints that are nothing more than a mere recitation of the TCPA elements will not be tolerated by the court. Of course, there may not even be a place for them in the courtroom depending on how the Supreme Court will decided on the fate of the TCPA, which we shall see very soon.

Stay tuned, TCPAWorld residents.

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© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 164
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About this Author

Shiqi (Sara) Borjigin Litigation Attorney Squire Patton Boggs Los Angeles, CA
Associate

Sara Borjigin is a Litigation associate in the Los Angeles office, focusing on business and commercial disputes and matters involving the Telephone Consumer Protection Act (TCPA).

Prior to joining our team, Sara handled various disputes involving business and employment law, professional liability, securities and insurance coverage.

During law school, Sara was a judicial extern for the Honorable Richard L. Fruin in the Superior Court of California in the County of Los Angeles. She also studied abroad in Beijing, China, at Peking University Law School.

213-689-6534
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