As I lamented not long ago, my critical win in Stoops has been mostly relegated to the library shelf since few defendants have properly leveraged it. While Stoops was the first case in the nation to result in the dismissal of a manufactured TCPA claim on both Article III and prudential standing grounds, it has been repeatedly distinguished as Defendants rush to rely on the case without building a proper evidentiary record justifying its application.

But one Defendant just did things precisely right and earned a dismissal of a manufactured lawsuit as their prize—and in the Ninth Circuit, no less.

In Garcia v Credit One Bank, Case No. 2:18-CV-191 JCM (EJY), 2020 U.S. Dist. LEXIS 136881 (D. Nv. July 31, 2020) the Court granted summary judgment to the defense concluding that the Plaintiff had suffered no cognizable injury for Article III purposes and otherwise lacked prudential standing to sue under the TCPA because he had taken affirmative steps to obtain the calls at issue.

Specifically, the Plaintiff—who was a former debt collector and understood how the TCPA worked—would continuously re-fill minutes on a pay-as-you-go phone plan in the hopes of netting calls. And although we knew he needed but ask for calls to cease, he intentionally allowed calls by Credit One intended for a third party to continue, documenting each one and preparing for suit.  The Garcia court followed Stoops and concluded, on the record before it, that the Plaintiff had desired the calls at issue and taken steps to receive the very calls he sued for—so he lacked any form of standing to collect under the TCPA.

For its part, Credit One had the consent of the debtor it was trying to reach and—although the Court was foreclosed from honoring that consent as a valid defense as a result of another TCPA case involving this very same defendant— that likely went a long way in the result here. The fact that Credit One had no idea it was calling a wrong number while the Plaintiff elected not to inform it and simply allowed calls to continue seems to have driven the result here.

In the end this is a huge win for the Defendant and very well earned. Importantly, notice how the record of Plaintiff’s efforts to manufacture the lawsuit was not particularly robust here—all the Plaintiff did was continue restoring minutes on the phone while failing to advise Credit One of its mistake. But because the Defendant waited until the summary judgment stage and was able to build in other important facts—like Plaintiff’s history as a debt collector, his knowledge of the TCPA, and Credit One’s relative innocence respecting the calls—it was able to net a judgment in its favor.

Properly leveraged a Defendant need show relatively little to earn a dismissal, but evidence of state of mind is critical.  For those of you who are facing manufactured lawsuits or a suit by a repeat player, be sure to keep Garcia in mind.