The motion to dismiss stage is never the place to try and make your case, a lesson one defendant has learned in a Telephone Consumer Protection Act class action. There is a he-said, she-said debate over whether the plaintiff visited one of the defendant’s locations and signed up to receive text messages, and at this stage of the proceedings, what the plaintiff says goes.
The Background: The plaintiff filed a TCPA class action against the defendant, alleging she received seven text messages that she did not consent to receive. The plaintiff also had her number registered on the national Do Not Call list. The plaintiff asserts she never provided her number to the defendant, never had a relationship with the defendant, and never gave the defendant permission for any kind of telemarketing.
- The defendant filed the motion to dismiss, arguing the court in question — the District Court for the Eastern District of Washington — did not have jurisdiction and because the purported class is overbroad and involved individualized inquiries unsuitable for class resolution.
The Ruling: At the motion to dismiss stage of a proceeding, it’s the judge’s responsibility to resolve any factual disputes in the plaintiff’s favor. This means that as long as the plaintiff claimed to have received the text messages and did not provide consent, it doesn’t matter if the defendant has proof that the plaintiff signed up to receive them or not.
With respect to the personal jurisdiction issue, even though the defendant is based in Missouri, It allegedly sent text messages to a phone number associated with an address in Washington State, which was enough for Judge Stanley A. Bastian to rule the court had jurisdiction over the lawsuit.
- Judge Bastian also declined to rule on the defenses that the defendant make have to the class’s claims, saying it was too premature.