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Doctor Who? Plaintiff’s Vicarious Liability Claim Against Doctor Dismissed for Lacking Specifics

pro se Plaintiff’s TCPA complaint was dismissed with prejudice.  Here’s how: 

The Plaintiff was getting calls for medical services.  He alleged the callers used an ATDS, and continued despite him telling them he did not consent, and was on the National Do Not Call Registry.  The court noted that as the calls did not stop, the Plaintiff played along in an attempt to uncover who was calling him. He alleged the callers asked questions, and referred to a “doctor” that would review his answers.  He then got the callers to mail him home test kits from the two medical companies they represented.

After the case was removed to federal court, the Plaintiff dismissed the medical companies. Only one defendant remained, an individual doctor, against whom the Plaintiff alleged 8(!) different claims under the TCPA, and one state law claim for trespass to chattels. The doctor filed a motion to dismiss. The Plaintiff amended. 

The doctor filed a second Motion to Dismiss, and it its heart the doctor again argued, all claims arising under the TCPA should dismissed because Plaintiff failed to allege that I ever made an unsolicited robo call to him, and failed to allege any facts that the person who made the robo call to him was my agent. Kline v. Elite Med. Labs., Inc., 2019 U.S. Dist. LEXIS 214802, *10.  In response, the Plaintiff argued the callers told him a doctor will evaluate him, and our doctor will call you.  Consequently, he argued that it’s apparent the lead generators and callers had implied authority from the doctor, as he asserted the doctor worked for the callers’ medical companies.  

Ultimately, the court ruled that under Federal Rule of Civil Procedure 8, the Plaintiff failed to plead enough facts that any agency relationship existed.  The Plaintiff merely alleged that the doctor had consulted for the medical companies, but critically, there was no allegation that the doctor directed the callers to call the Plaintiff, or that the doctor gave the callers a reasonable belief he was giving them authority to call on his behalf. 

Sharply, as this was the Plaintiff’s second amended Complaint, the court ruled the Plaintiff showed he has no chance of properly alleging the TCPA claims.  Finally, the court declined to exercise jurisdiction over the remaining state law claim.

This decision is demonstrative that when a pro se does not connect the dots, TCPA claims can be knocked out for lack of specifics alleging the connection for vicarious liability.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 350
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About this Author

Jason M. Ingber Litigation Attorney Squire Patton Boggs Los Angeles, CA
Associate

Jason M. Ingber’s practice focuses on consumer class action defense and breach of contract litigation. Jason specializes in cases brought under the Telephone Consumer Protection Act and has handled all phases of litigation in cases involving consumer protection statutes, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act and the California Homeowner Bill of Rights.

Prior to joining the firm, Jason defended over a hundred single plaintiff consumer disputes. He has also managed pro bono matters.

While at the UCLA School of Law, Jason...

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