Utility Urges Court to Adopt Magistrate Judge’s Report, Dismiss Frivolous TCPA Claims
Plaintiff Lee Cunningham’s case against Southern Power for alleged Telephone Consumer Protection Act wrongdoing shouldn’t be “complicated,” said the utility’s filing Wednesday (docket 2:22-cv-00621) in U.S. District Court for Middle Alabama in Montgomery. It was responding to the pro se…
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plaintiff’s July 20 opposition to a magistrate judge’s recommendations that his case should be dismissed because his claims are frivolous (see 2307210018). Cunningham “acknowledged in open court” that his TCPA allegations “concern his account with Alabama Power,” said the utility. But Cunningham didn’t sue Alabama, instead suing Southern Power, which doesn’t engage in consumer telemarketing or debt collections, it said. Despite repeated opportunities “to correct this apparent error,” Cunningham “doggedly refused to do so,” it said: “He continues to insist on proceeding against Southern Power in the face of the undisputed evidence that Southern Power had no involvement in the conduct at issue.” Cunningham’s objection to the magistrate judge’s recommendations “fails to show that he has a meritorious basis, in fact or in law, for proceeding against Southern Power,” it said. “Indeed, his entire objection essentially reduces to his continued insistence on a fact about which he has no knowledge, and which is moreover readily and demonstrably untrue,” it said. Cunningham, “in short,” has sued the wrong party “and continues to pursue meritless claims against Southern Power,” it said. His opposition should be overruled, and the court should adopt the magistrate judge’s recommendations and dismiss the case, it said.