One Phone Call, Three Class Actions

The same phone call that was the subject of earlier litigation can form the basis of another Telephone Consumer Protection Act putative class action, a New Jersey federal court judge has ruled.

According to the complaint, on March 11, 2005, DialAmerica Marketing allegedly made a call to Genevieve Dutriaux on behalf of Bank of America, in which it marketed a credit card in violation of the TCPA. Dutriaux sued over the call in 2005. Her lawsuit was administratively closed in 2008. Her roommate Mark Leyse—who actually answered the call—followed up with his own complaint in 2009.

Leyse's first complaint was dismissed when a New York federal court judge ruled he was not the "called party" as required by the TCPA and therefore lacked standing to bring suit. The Second Circuit Court of Appeals affirmed dismissal and the U.S. Supreme Court denied Leyse's writ of certiorari.

In 2011, Leyse filed a second complaint in New Jersey federal court. U.S. District Court Judge Susan D. Wigenton dismissed the action with prejudice based on both the statute of limitations and collateral estoppel, due to the dismissal of the first case. A panel of the Third Circuit Court of Appeals affirmed, but after a rehearing the en banc Third Circuit reversed dismissal.

On remand, Judge Wigenton again granted Bank of America's motion to dismiss, this time based on her determination that Leyse lacked statutory standing as a called party under the TCPA. Again, the Third Circuit reversed the district court, holding that Leyse satisfied the statutory standing requirement because "His status as a regular user of the phone line and occupant of the residence that was called brings him within the language of the Act and the zone of interests it protects."

Back in the district court, Bank of America filed a motion for judgment on the pleadings, relying on the U.S. Supreme Court's decision in Spokeo v. Robins. It argued that Leyse failed to meet the requirements for Article III standing. The defendant also argued that the court should exercise its discretion to dismiss Leyse's claim under the first-filed rule.

Judge Wigenton denied the motion, keeping the action alive.

She made quick work of the bank's standing concerns, noting that the Third Circuit "previously held in this matter that because the Complaint alleges that Defendant placed a call 'to Leyse's residential telephone' line, he fits 'squarely within the zone of interest' protected by the TCPA."

"As the Third Circuit explained, 'a regular user of the phone line who occupies the residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to protect [through the TCPA]," the court said. "Therefore, the Third Circuit found that it was error for this Court to hold that Plaintiff lacked statutory standing under the TCPA at the motion to dismiss stage."

The same principle applied regarding Article III standing, the court said. "Although it is true that to succeed on his claim, Plaintiff will be required to prove that he actually answered Defendant's call, at this point this Court may reasonably infer that he did," Judge Wigenton wrote. "As a result, Plaintiff has alleged sufficient factual matter to support his claim that, by using a prerecorded message to initiate a call to Plaintiff's telephone line, Defendant caused Plaintiff to suffer a nuisance and invasion of privacy which is both concrete and particularized."

Bank of America similarly failed to sway the court with its first-filed rule argument. The rule provides district courts with the power to enjoin the subsequent prosecution of proceedings involving the same parties and the same issues already before another district court. Because the Dutriaux action was based on the same legal claim and the same underlying facts, the bank told the court that Leyse's suit should be thrown out.

However, Judge Wigenton found the rule inapplicable, as the cases were not "materially on all fours with the other" and the Dutriaux case did not leave "little or nothing to be determined" in Leyse's dispute.

"[W]hile the parties in this case are similar to those in the Dutriaux Action, the issues to be resolved are sufficiently distinct," she wrote. "The first-filed rule is inapplicable in this instance because, although this matter is related to the Dutriaux Action, a resolution in one matter will not necessarily 'leave[] little or nothing to be determined in the other,'" the court said. "First, if Dutriaux is found not to have answered the call at issue, it does not necessarily follow that Plaintiff did answer the call. Second, even if Dutriaux was found to have answered the call, it does not necessarily follow that Plaintiff did not."

Further, the Dutriaux case was administratively closed eight years ago and "this Court will not hypothesize about whether the Dutriaux Action will ever be reopened," Judge Wigenton added.

To read the court's opinion in Leyse v. Bank of America, click here.

Why it matters: The decision keeps alive the third lawsuit filed over a single call made in 2005 that has been considered by several district courts and multiple federal courts of appeal.



pursuant to New York DR 2-101(f)

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