By now everyone is making use of my stoplight–I even saw Active Prospect put it up on LinkedIn the other day. Pretty cool.

Here it is again:

A lot of folks were surprised that I listed predictive dialers as yellow instead of green following Facebook, but there was little doubt in my mind that some courts would continue to treat such dialers as ATDS. And naturally, I was right.

The latest case to do so arises from an odd procedural setting.

Some folks just really don’t understand Rule 11 motions.

For the uninitiated–Rule 11 forbids lawyers from filing frivolous papers. It allows a party to seek sanctions if frivolous papers are filed and not withdrawn.

But a Rule 11 motion is not a substitute for a summary judgment motion or a motion to dismiss. Procedurally the Rule 11 filing has to be timed up to coincide with a proper substantive motion or proceeding to be effective. A Rule 11 motion is not, in and of itself, a vehicle to test the merits of a claim.

For some reason though TCPA defendants seem to have a tough time with this concept. There’s been a few cases over the last couple of years where a Defendant lobbed a Rule 11 motion at the Court without any underlying dispositive proceeding and the Court sort of scratched its head and denied the motion.

That was the case in Douglas, Case No. 3:20-cv-395-JR, 2021 U.S. Dist. LEXIS 190898 (D. Or. October 4, 2021). The Magistrate Judge had held that the Rule 11 motion was simply an improper vehicle to test the allegations of the complaint. But even if it was proper–and it wasn’t–the allegations of the complaint were sufficient.

In affirming the MJ’s ruling over objection–apparently the Defendant doubled down and urged the district court to overrule the magistrate judge and award sanctions against the Plaintiff anyway (long shot much?)–the district court concluded that no only was the Rule 11 motion improper, the allegations of the complaint and Defendant’s discovery responses were plenty sufficient to allow the case to proceed.

Why?

Because all indications pointed to the Defendant’s use of a predictive dialer. And predictive dialers can be ATDS(s) subject to the TCPA:

If a “telltale pause” provides a plausible inference that the dialing system is a predictive dialer, and if, as Defendants concede[?!], predictive dialers also encompass automatic dialers with the capacity to store and produce numbers using a random or sequential number generator, then Judge Russo correctly concluded that Plaintiff reasonably relied on the “telltale pause” to support her allegation that Defendants used an auto-dialing system in violation of TCPA.

And then the Court decided to say it again:

But again, as Defendants admit in their brief [?!], predictive dialers also include automatic dialers with the capacity for random or sequential number generation. Plaintiff therefore reasonably relied on the “telltale pause” to allege that Defendants dialing systems used random or sequential number generation.

So umm... yeah. Predictive dialers are YELLOW.

Also no more Rule 11 motions without a dispositive motion backing it up.