I need to share another quick TCPA procedure lesson before I get some actual work done today.  Rule 11 Motions are not vehicles to test the merits of a claim. Keep that in mind lest a judge ask you not to waste the court’s time.

In Sloatman v. Triad Media Solutions, Inc., Civ. No. 17-cv-11383 (KM),2018 WL 4204444 (D. N.J. Sept. 4, 2018) the Defendant faced a putative TCPA class action brought by a class representative who probably gave consent to be called in the first place. Specifically, Defendant produced evidence that the Plaintiff encountered a website and agreed to a TCPA consent disclosure before calls commenced to the Plaintiff’s cell phone number. Presumably frustrated by the lawsuit, the Defendant filed a Rule 11 motion seeking to recover costs of defending the suit. It did not go well.

In response to the motion the Plaintiff–rather unsurprisingly–denied ever having encountered the website or accepting any of the disclosures. This resulted in a straightforward question of fact that the Court found was utterly inappropriate to resolve via a “sideshow” Rule 11 motion:

Triad submits website evidence that Sloatman consented; Sloatman submits, to the Court and to her counsel, that she didn’t. The point is that there is a factual dispute, which must be resolved by the usual means, not in the context of a sideshow motion for sanctions.

Sloatman at *2.

The Court also let Defendant know how it felt about the motion: “In saying—and I do—that Triad’s motion has wasted the Court’s time…” Ouch.

While I can certainly share the frustration of the Defendant, Sloatman demonstrates the proper way to leverage a Rule 11 motion is in conjunction with a dispositive motion, not as a standalone replacement for dispositive relief plus fees. Plus the motion is not very effective against a Plaintiff who is simply willing to lie–if that is what happened here–because such a case isn’t frivolous unless incontrovertible proof of the lie comes to light–and then the Plaintiff has bigger problems than a Rule 11 motion. So be sure to know the Plaintiff’s story before you accuse her of not having one. Otherwise the Court might have to remind you that: “Rather than misusing scarce resources, [the] timely filing and disposition of Rule 11 motions should conserve judicial energies.” Sloatman at *2.