Serial TCPA Litigant Admonished by Court for Making Jurisdictional Allegations Without Factual Support
The TCPA is a magnet for serial litigants. There are handful of individuals located in various states across the country who seem to account for an outsized share of TCPA filings, and who are sometimes known to resort to aggressive tactics to extract settlements from callers. While serial litigants have had their fair share of wins in TCPA cases over the years, one was recently bench slapped by a District Court for going too far.In Perrong v. REWeb Real Estate LLC, No. CV 19-4228, 2020 WL 4924533 (E.D. Pa. Aug. 21, 2020), the pro se plaintiff had filed suit against a Florida real estate company and its owners in the United States District Court for the Eastern District of Pennsylvania. The plaintiff’s claims were based upon three text messages sent by defendants to his phone regarding real estate listings in Florida.
The defendants (who were also representing themselves in pro se) moved to dismiss the plaintiff’s complaint for lack of personal jurisdiction. Notably, there was significant litigation before the case arrived at this point. Initially, the defendants had not timely responded to the plaintiff’s complaint, so plaintiff obtained their default. Defendants moved to set aside the default, which the plaintiff had opposed, but which the court granted. So before the jurisdictional issue was teed up for the court, this single case—involving three text messages—had already consumed an outsized proportion of the court’s time.
The court’s ruling dismissing the case for lack of jurisdiction is perhaps no wonder against this backdrop. The plaintiff attempted to establish jurisdiction in the case through generic allegations that the defendants “purchas[ed] and own[ed] property in this District and/or enter[ed] into contracts for the purchase and sale of real property with residents of this District.” He also alleged that defendants were conducting “brisk business” in Pennsylvania based on a single listing on the defendants’ real estate website for a Florida property owned by a Pennsylvania resident.
The defendants’ motion prompted the court to issue an order requiring the plaintiff to “set forth in an affidavit the factual basis for his allegations of jurisdiction.” The plaintiff responded with an affidavit that the court found to be “long on argument and short on facts.” The court noted that the affidavit contained “no support” for the plaintiff’s jurisdictional allegations, and stated that it was “troubled that Plaintiff would unambiguously allege in the Complaint that Defendants conduct business [in Pennsylvania] ‘by purchasing and owning property’ in the absence of any factual support.”
The court also took note of the fact that the defendants had specifically pleaded in their answer that “Plaintiff demanded $7000 in settlement, told [the defendants] that they would need to hire a lawyer, further stating that his demand would increase if they did not immediately capitulate.” Although this portion of the defendants’ answer did not directly bear upon the issue of jurisdiction, the court noted that the “specificity” of the pleading “stood out”.
Indeed, this allegation appeared to color the court’s decision to deny plaintiff the opportunity to conduct jurisdictional discovery, which was guided by “considerations of proportionality and burden.” The court explained:
If the motion [to conduct jurisdictional discovery] were granted it would have the effect of requiring Defendants to expend funds for the retention of counsel. Similarly, his request for jurisdictional discovery would impose further transactional costs on Defendants. Both are consistent with Plaintiff's aggressive style of litigation, and a concern arises that this represents a strategy of pressuring these defendants to settle independent of the merits of the case. This concern on my part is a separate basis on which I deny discovery given the record in this case.
The TCPA is an easy statute to sue under, but that still does not absolve litigants of their obligations under the Federal Rules to make allegations based on real facts. Perhaps emboldened by easy pay-days, and favorable court rulings, some serial litigants may feel they have license to engage in the aggressive tactics exemplified in Perrong v. REWeb. But the court’s ruling dismissing the plaintiff’s complaint in this case shows that there are still lines that cannot be crossed in federal court litigation, even by professional litigants.