“This is far from Plaintiff Na’eem Betz’s first rodeo. A frequent pro se filer, he brings this TCPA action against Synchrony Bank for allegedly calling him over 80 times using an autodialer and pre-recorded message,” stated Chief Judge James E. Boasberg of the United States District Court in the District of Columbia in the case of NA’EEM BETZ v. SYNCHRONY BANK, 2023 WL 3303669, at *1 (D.D.C. May 8, 2023).
On May 8, 2023, the above quote was featured in the Memorandum Opinion by the Honorable Judge Boasberg who led the opinion by calling out the plaintiff for being a TCPA frequent filer. This plaintiff is only one of many frequent filers of TCPA claims these days, a fact that courts seem to be addressing in opinions like this one, published just days ago.
The topic of this opinion was a Motion to Dismiss filed by the defendant. The defendant sought to dismiss two claims, specifically claims for (1) Violation of the Telephone Consumer Protective Action (TCPA) and (2) Invasion of Privacy. The Judge dismissed the serial plaintiff’s claim for Invasion of Privacy and allowed the TCPA claim to stand, though on a technicality.
As the Judge stated, the case had quite a drawn-out procedural history, with the plaintiff ultimately filing two amended complaints and the defendant filing a motion to dismiss each and every complaint and amended complaint that had been filed by the plaintiff. The opinion came after the plaintiff finally responded to the defendant’s motion to dismiss the second amended complaint. The plaintiff’s TCPA claim alleged that the defendant in that case had made 83 calls using a dialing system that had “the capacity to store or call phone numbers using a random or sequential number generator.”
To make out a TCPA claim, the memorandum opinion specifies that the plaintiff must allege that (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system (ATDS) or a pre-recorded or artificial voice (PRAV); (3) without the recipient’s prior express consent. An ATDS is defined by the TCPA as equipment that “has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The burden is on the caller to prove that it obtained the necessary prior express consent.
In seeking dismissal, the defendant had relied on one purported admission to show that the plaintiff had previously consented to the calls, pointing to one of the plaintiff’s amended complaints, which stated, “Plaintiff revoked any prior express consent before the additional (‘31’) telephone calls with artificial prerecorded messages placed by the Defendant.” Yet, that court opined, such a single admission assumes too much. First, according to the court, it overlooks the times that the plaintiff stated he never consented. Further, the court pointed out, in this single “concession,” the plaintiff did not necessarily admit prior consent but rather underscored his continued desire to stop receiving calls. The court, therefore, could not infer that the plaintiff had previously agreed to receive these calls and cited to 47 C.F.R. § 64.1200(f)(9) (defining prior express consent to require written agreement meeting certain requirements). Accordingly, the court, while calling out the plaintiff for being a serial filer, did not grant the defendant’s motion to dismiss the TCPA claim.
However, the court did dismiss the plaintiff’s invasion of privacy claim. Among other weaknesses of such a claim, the court explained that although the plaintiff may have alleged in a conclusory fashion that the calls caused “emotional harm and distress, embarrassment, humiliation, and other losses,” he provided little detail as to these allegations. The court noted that the most the plaintiff explained in this regard was that he had experienced “annoyance, waste of time, the use of the telephone power and network bandwidth, and the intrusion on his telephone that occupied it from receiving legitimate communications.” The court founds that those allegations were not enough. Judge James E. Boasberg of the court finally expressed that the plaintiff “may not like these phone calls, but they do not amount to an invasion of privacy. The Court will dismiss this count.”