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“FISHING EXPEDITION” REJECTED: Craig Cunningham’s “Generic Allegations” Result in TCPA Case Being Thrown Out
Wednesday, February 28, 2024

A very common (although inappropriate) tactic in TCPA class actions is for a Plaintiff to plead a claim against multiple defendants without really ever identifying which party did what.

For instance in a situation where a brand buys a lead and then uses a call center to make a call all three entities might be sued and the Plaintiff might allege simply that “Defendants” made the calls at issue.

This is highly improper (and lazy) and courts will oftentimes dismiss such claims.

In Cunningham v. Autoguard, et al. 2024 WL 818381, CASE NO. 3:23-CV-00238-FDW-SCR (W.D.N.C. Feb. 27, 2024) the Plaintiff–repeat litigator Craig Cunningham–brought suit against auto warranty providers along with alleged marketers and callers that made calls leading to the sale of their warranties.

Rather than spell out precisely who did what, however, the Plaintiff just alleged “Defendants” made the calls at issue and the Court was not having it:

Focusing on Mepco, it bears emphasizing—similar to Lexington—the Amended Complaint’s only reference to Mepco appears in the identification of the parties, (Doc. No. 4, pp. 2), and Plaintiff’s general reference to all Defendants collectively as engaging in the allegedly wrongful conduct is insufficient here to set forth a plausible claim under the TCPA or regulatory provisions. For example, Plaintiff makes no allegation to plausibly connect Mepco to the calls made by AAP. As with the other Defendants, no allegations suggest an agency, contractual, or other legally cognizable relationship sufficient to plausibly assert Mepco’s connection to AAP. Put simply, Plaintiff has failed to provide Mepco with fair notice of the claims against it, and the allegations are wholly insufficient for this Court to draw a reasonable inference that Mepco is liable for the misconduct alleged. As it pertains to all Defendants, Plaintiff makes no allegation beyond conclusory boilerplate language to support a cause of action under 47 C.F.R. § 64.1200(d)(1, 2, 4)

Eesh.

The court also found the actions of the callers were not “fairly traceable” to the warranty providers since all they did was provide the warrant, but aren’t alleged to have made the calls or directed that the calls be made. The Court concludes:

In sum, Plaintiff’s Amended Complaint uses boilerplate and generic allegations to cast a wide net and assert claims against the moving Defendants: Autoguard, Dimension, Lexington, and Mepco. The Court declines to condone this fishing expedition of a lawsuit to discern the relationship between them and “AAP,” the only party specifically alleged to have engaged in conduct potentially violative of the TCPA. 

Beautiful.

To be sure there is split of authority on the level of allegations sufficient to keep a “seller” whose products are marketed in allegedly illegal calls in a case, but this ruling is PERFECT-O in that the Court refused to let the Plaintiff root around and claims sellers were liable for calls they did not make.

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