When I was a kid my favorite show was “This Week in Baseball.”

I can still hear Mell Allen’s voice saying “This Week [half beat] Baseball…” at the outset. Really a great show. Bunch of Gen Xers out there feel me on this I know it.

So there was a great segment on the show called “You Make the Call.” And it put the viewer in the role of being the umpire for a very unusual play. Maybe a ball would roll foul and then roll back fair and stop on the line. Or maybe it would bounce off an umpire and be caught by a player. Or maybe a ball would hit a batter off the bat outside the batter’s box and then be knocked foul by a charging pitcher. Stuff like that. And the viewer would be asked to “make the call”–i.e., what result?

So let’s play that game together, courtesy of Human v. Frubbel  2024 WL 2048865 (E.D. Mo. May 8, 2024).

In Human, the Defendant Valu-Pass moved to dismiss the complaint arguing that it does not engage in telemarketing and submitting a declaration to the effect that it never hired anyone to sell its products using telemarketing.

Since it does not telemarket, it argued, the court could not exercise jurisdiction over it.

On the other hand, the Plaintiff submitted a declaration attesting the telemarketers she received calls from told him the calls had been made by Valu-Pass and provided the correct physical address for Valu-Pass.

So there you go.

You make the call.

Do you find for the defense and throw the case out? Or credit the statements of the telemarketers?

Its an interesting and tough issue because the statements in the Plaintiff’ declaration are hearsay unless the markters work for Valu-Pass, in which case they are admissions. But Plaintiff can’t establish how they work for. But in federal court an admission is “not hearsay”– so the burden is not on Plaintiff to prove the speaker is an employee (as it would be of an admission were an exception to the hearsay rule) but on the challenger to prove the speaker is not an employee.

And that’s the question being begged– who employed the caller?

On balance, the Court in Human determined it was too early to answer the ultimate question and wanted some discovery to find out:

The Court has carefully reviewed Plaintiff’s allegations, Mr. Warren’s declarations, Plaintiff’s declaration, and the exhibits and does not agree with Frubbel that there is only one conclusion one can draw from the evidence in the record. In moving for dismissal, Frubbel is asking the Court to credit Mr. Warren’s declarations over Plaintiff’s declaration. But at this early stage in the proceeding, the evidence, which is conflicting, has yet to be tested by the litigation process. Frubbel is also asking that the Court speculate in order fill in unanswered questions, such as who could have made the calls if not Frubbel or its agents. In the Court’s view, depending on the weight one assigns the declarations, there are a number of conclusions one could draw from the limited evidence before the Court, one being that Frubbel or its agents made the calls to Plaintiff’s phone. The Court finds Frubbel’s argument is unpersuasive.

So there you go.