Judge Grants MSJ For Defendant in TCPA Case Over One Wrong Number Call

A District Court judge in Texas has granted a defendant’s motion for summary judgment in a Telephone Consumer Protection Act case ruling that a single wrong number placed by a collector to the plaintiff did not violate the statute, while also warning the plaintiff — who has “repeatedly” filed similar cases, without success — that he must obtain permission before he files any other similar cases going forward.

A copy of the ruling in the case of Fountain v. Cawley & Bergmann can be accessed by clicking here.

The plaintiff, who has filed five similar suits in the same district, accused the defendant of violating the TCPA and the Texas Telemarketing Disclosure & Privacy Act when it placed a call to his cell phone using an automated telephone dialing system without first obtaining his consent.

The defendant, through a declaration filed by the company’s chief executive officer, Alison Emery, submitted evidence that the call was placed in error and was not made using an ATDS. The agent manually dialed the plaintiff’s phone number. The plaintiff called another agent at the company to complain. After an investigation, it was determined that the phone number was dialed incorrectly, on the belief that the phone number was that of a third party who had an account with the defendant. That was enough for Chief Judge Lee H. Rosenthal of the District Court for the Southern District of Texas to grant summary judgment on behalf of the defendant on both counts.

Judge Rosenthal then said that while he was not imposing monetary sanctions against the plaintiff, that he was warning the plaintiff “that continued similar filings will be precluded unless he first obtains the permission of the chief judge or his or her designee to file the lawsuit.” The plaintiff “is also warned that sanctions, including monetary sanctions, may be imposed.”

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