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Things Are Rapidly Changing, But Something Stays the Same: Allegations of Fact Taken As True at the Pleading Stage

It almost seems that everything is changing so fast in these current days. When everyone is trying to keep up with the pace, I thought it might be worthwhile to share this opinion and remind all of us that something still stays the same. Here, for this one, allegations of fact must be and still are taken as true at the pleading stage.

In Huber v. Pro Custom Solar, LLC, No. 3:19-cv-01090, 2020 U.S. Dist. LEXIS 87025, Plaintiff alleges that defendant “sells and installs solar panels” and “uses telemarketing to promote its products.” Plaintiff alleges that he received four telemarketing calls from the defendant on his residential telephone line, which was “not associated with a business,” was “for personal use,” and was “registered on the National Do Not Call Registry.” Plaintiff further alleges that the call ID showed “Moment” as in the defendant’s dba name Momentum Solar.

Defendant filed a Rule 12(b)(6) motion to dismiss the case on the grounds that Plaintiff failed to plead sufficient facts showing (1) the calls where telephone solicitation, (2) defendant or its agent initiated the calls, and (3) his telephone is a residential telephone line.

Wait. What? Didn’t I just mention plaintiff’s allegations that literally include all these points?

Indeed, the court denied defendant’s motion on all three grounds.

First, defendant argued that plaintiff did not sufficiently plead the telephone solicitation because he failed to allege what services or goods were offered via these calls, under what terms, and at what price.

However, and as you all have pointed out, by alleging that the defendant “sells and installs solar panels” and “uses telemarking to promote its products,” plaintiff has apparently met the oldies goodies pleading standard. There is no requirement that plaintiff must allege details at the pleading stage about the time and context of every telephone call.

Defendant next argued that plaintiff did not plead sufficient facts showing defendant initiated the calls and did not plead facts showing agency relationship with the caller. Defendant further argued that the caller ID “Moment” could not prove that defendant made the call because it could be any company whose name started with that word. The court, although acknowledging that there might be other companies who would appear on a caller ID as “Moment,” did not accept the defendant’s argument at the pleading stage under the Iqbal-Twombly plausibility standard.

As to the agency issues, because plaintiff’s complaint alleges that defendant is only directly liable and not vicariously liable, the court does not need to consider the argument regarding lack of agency allegations.

At this point, you must be wondering the same as I am. What was the defense lawyer thinking when drafting the motion?! Oh wait, there’s more.

Lastly, defendant argued that plaintiff did not plead sufficient facts to demonstrate his telephone is a residential telephone line.

Now you will say, I don’t believe you. What defendant would make that argument after the complaint has already said on its face that “Plaintiff Huber’s telephone … is a residential telephone line,” and “is not associated with a business and is for personal use.”

I know, and just like the court stated: “These straightforward, unequivocal, declarative statements present allegations of fact which must be taken as true at the pleading stage.” As far as we know, this is still the rule.

© Copyright 2020 Squire Patton Boggs (US) LLP

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About this Author

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.

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