Yesterday, two Plaintiffs encountered a divergent result as to the fate of their TCPA class action claim at the pleading stage.

In Pagano v. Quicken Loans, Case No. 3:18-cv-117-J-20JBT, 2018 U.S. Dist. LEXIS 120933 (M.D. Fl. July 19, 2018), two Plaintiffs – Pagano, a Florida resident, and Norris, a California resident – sued Quicken Loans in the Middle District of Florida for making telemarketing calls in violation of the TCPA. Quicken brought a motion to dismiss Plaintiffs’ class action complaint on two primary grounds.

Quicken first argued that the court lacked personal jurisdiction over Norris.  What’s a California resident doing bringing a class action in Florida, anyways?  Plaintiff countered that the court could exercise pendent personal jurisdiction over his claim, but the court rejected this argument and held the complaint made “abundantly clear” that Plaintiff Norris had no Florida connections. He was a California resident and received the alleged calls in California, while Defendant is organized under the laws of Michigan and headquartered in Detroit. As such, the court, in its discretion, determined it would not exercise pendent personal jurisdiction over Plaintiff Norris’ claim and granted Defendant’s motion to dismiss. Good call.

Quicken then challenged the TCPA claims by Pagano on the basis he had failed to adequately allege Quicken used an ATDS to call.  The complaint alleged that Defendant “utilized the ‘Cannon auto-dialer in placing these calls” to Plaintiff. The complaint further maintained that the Cannon system “has the capacity to store telephone numbers using a random or sequential generator, or to dial such numbers” and “has the capacity to dial telephone numbers from a list without human intervention.” In addition, Plaintiff alleged how many calls were made, approximately when they took place, and the subject matter of the calls.  

The court held that these allegations were sufficient and denied Defendant’s motion to dismiss as to Plaintiff Pagano’s claims. Interestingly, however, and perhaps intentionally, the court made no mention of ACA Int’l in reaching this decision. It simply pointed to another pre-ACA Int’l district court case out of Florida for the proposition that Plaintiff’s allegations of “how many calls there were, when they took place, and their subject [were] sufficient factual allegations to create a plausible inference that the calls were made using an ATDS.”  Chances are the court will be asked to address this issue, however, in a dispositive motion.

It’s not clear what business a California resident has suing a Michigan business in Florida – the things people cook up.  And while the court decided to stick with the looser pre-ACA Int’l pleading requirements on the claims brought by the Florida resident, it seems evident that it was just reserving the issue to be decided in a later dispositive motion.