Third time’s the charm? Not quite, for a plaintiff in the Eastern District of Michigan who sought leave to amend the TCPA claims in his complaint to add a count for willful violations after already having amended the complaint twice.

In Bristow v. Am. Nat’l Ins. Co., No. 2:20-cv-10752, 2021 U.S. Dist. LEXIS 102406 (E.D. Mich. June 1, 2021), plaintiff had already filed two amended complaints alleging TCPA violations.  At a hearing on the motion, plaintiff orally moved to dismiss the existing TCPA claims, and the parties stipulated to dismissal, due to lack of viability after the Supreme Court’s ruling in Facebook, Inc. v. Duguid.  But when plaintiff moved for leave to file a third amended complaint, in order to add a count alleging knowing and willful TCPA violations, the court (rightfully) declined.

Why? Plaintiff was required to allege actual knowledge of a TCPA violation to sustain a finding that defendant’s conduct was willful – and the proposed third amended complaint did not come close.  Plaintiff only alleged that his number was on the DNC Registry, and that defendant failed to check the registry before calling him.  But, as the Bristow court held, simply alleging that a defendant called a number listed on the DNC Registry does not demonstrate willfulness.

The reason for this standard is simple: for knowing and willful violations, treble damages may be awarded under the TCPA.  Calling someone who is listed on the DNC Registry is a violation of the TCPA, but not necessarily a knowing or willful one – a plaintiff has to allege actual knowledge on the part of the defendant that the violation was knowing and willful, not just that the defendant should have known that a violation occurred (i.e, constructive knowledge is insufficient).  If allegations like plaintiff’s were sufficient to allege willfulness, every single TCPA complaint could automatically subject a defendant to treble damages – a result that would clearly be unfair and impractical.

The Bristow court denied leave for plaintiff to amend his deficient allegations on several grounds.  First, it found that the proposed amendments would not survive a motion to dismiss. Plaintiff contended that defendant’s agent removed his number from the list upon being questioned why he was calling – but did not allege any calls from defendant after being removed from its call list. The Bristow court also found that granting plaintiff’s motion would result in undue delay, as the allegations came over a year after filing his original complaint.

Bristow is a key reminder that simply claiming that a TCPA violation was knowing or willful is likely not enough – especially when treble damages are on the line, and especially when that claim is coming up for the first time in a third amended complaint.