I’ve always been a purist.

Legal doctrine is black and white to me. No grey. It applies as intended, or it shouldn’t be applied at all.

Obviously not every Court (or lawyer) agrees with such inflexible application and some might say the rigidity of my thinking stifles my creativity—although those people have never read this blog.

But the bottom line is I really don’t like it when folks misapply legal arguments. Example: raising a standing argument as a vehicle to test the merits of a claim.

Setting the stage, federal courts are courts of limited jurisdiction. This, we are told, comes from Article III of the U.S. Constitution that limits federal courts to determine actual “cases or controversies.” And Article III implies an “actual harm” requirement that is quite useful in defending TCPA cases (particularly in defeating certification.)

That’s all well and good, but standing challenges are unique in the sense that a defendant can introduce evidence supporting a standing challenge even at the pleadings stage. So unlike a standard motion to dismiss under 12(b)(6)—where the allegations of the complaint must be accepted as true—a motion to dismiss for lack of subject matter jurisdiction (i.e. lack of Article III standing) can be brought on a factual basis, i.e. facts outside the complaint can be introduced.

This has led to some defendants using (abusing?) the 12(b)(1) motion to bring factual challenges based on the merits of a claim under the subterfuge of challenging standing. The argument usually goes something like this—because Defendant had consent to call Plaintiff the Plaintiff could not have been harmed as the statute intended, hence no standing. The problem, of course, is that consent is a merits defense. There is a case or controversy—i.e. whether the consent actually exists and whether it was valid. So permitting a factual attack at the pleadings stage converts a standing motion into an MSJ on a substantive issue. And the result is discordant—rather than enter judgment in favor of the Defendant on the merits, the Court would have to dismiss for lack of jurisdiction.

I know, I know, this is a creative argument that lets a defendant (and the court) cut to the merits without wasting time. But it is also completely unsound intellectually and it drives me nuts.

Well in Doup v. Van Tuyl Grp., LLC, Civil Action No. 3:20-CV-02742-X, 2021 U.S. Dist. LEXIS 75211 (N.D. Tx.  April 19, 2021) the court adopted my rigid interpretation of standing rules and refused to weigh the merits of a TCPA defendant’s factual arguments at the pleadings stage.

Specifically, Doup the Defendant argued that Plaintiff lacked standing to sue Defendant because the Defendant had not made the calls at issue. Hence the injury was not “fairly traceable” to the Defendant. But since the Plaintiff had alleged that the calls had, in fact, been made by the Defendant the determination of the maker of the call was a substantive merits determination, and not a standing argument. Ruling in favor of the defense would not deprive the court of jurisdiction—it would operate as a determination that the defendant was not liable. So the court (correctly) in my view denied the motion to dismiss.

Now I know this result may leave folks frustrated—after all the Defendant in that case may not have made any calls at all, so why should it be sued? The proper vehicle to raise this grievance, however, is an MSJ coupled with a nice Rule 11 letter. And courts should actually compensate defendants by way of Rule 11 sanctions where they are caught up in litigation unnecessarily all the way to he MSJ phase.

Always happy to discuss.