Pro se plaintiff Lee Cunningham responded to the court’s May 2 show cause order Tuesday to explain why Southern Power’s motion to dismiss his Telephone Consumer Protection Act lawsuit shouldn’t be granted (see 2305030039) with an appeal for the court to protect his rights as an in forma pauperis (in the manner of a pauper) litigant. Cunningham’s complaint “contains sufficient factual material and is not frivolous,” so the court “should allow this case to proceed,” said his response (docket 2:22-cv-00621) in U.S. District Court for Middle Alabama in Montgomery. “A finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible,” it said. But an in forma pauperis complaint may not be dismissed “simply because the court finds the plaintiff's allegations unlikely,” it said. “To conflate the standards of frivolousness and failure to state a claim,” as Southern Power argues, “would thus deny indigent plaintiffs the practical protections against unwarranted dismissal generally accorded paying plaintiffs” under the Federal Rules of Civil Procedure, it said. In light of the congressional goal “of putting indigent plaintiffs on a similar footing with paying plaintiffs,” the defendant’s interpretation can’t “reasonably be sustained,” it said. “According opportunities for responsive pleadings to indigent litigants commensurate to the opportunities accorded similarly situated paying plaintiffs is all the more important because indigent plaintiffs so often proceed pro se and therefore may be less capable of formulating legally competent initial pleadings.” The show cause order from U.S. District Judge Chad Bryan had admonished Cunningham that in responding, he shouldn’t rely on “unsworn pleadings” but rather on “sworn/verified statements made under penalty of perjury” that support his TCPA claims. The judge did so after Southern Power called Cunningham’s complaint “impermissibly frivolous” because he in fact knows that Southern Power wasn't the party that inundated him with debt collection calls, but he’s suing the wholesale power company anyway.

Liberty Mutual, by placing prerecorded calls to cellphone subscribers who haven’t expressly consented to receiving such calls, causes consumers “actual harm and cognizable legal injury,” alleged plaintiff Andrea Audish’s Telephone Consumer Protection Act class action Monday (docket 1:23-cv-11081) in U.S. District Court for Massachusetts in Boston. It’s the second TCPA case against the insurance company in under two months (see 2303150043). “Unfortunately for consumers, Liberty casts its marketing net too wide,” said Audish’s complaint. In its attempt to promote its business and to generate leads for its insurance policies and services, Liberty “conducted (and continues to conduct) a wide scale telemarketing campaign that repeatedly makes unsolicited prerecorded and/or autodialed calls to consumers’ telephones,” it said. Audish alleges she received four calls from Liberty on a single day, Jan. 12, and another four on March 9. “Liberty has caused consumers actual harm,” said her complaint. “This includes the aggravation, nuisance and invasions of privacy that result from the receipt of such calls,” plus the wear and tear on their phones, consumption of battery life and lost cellular minutes, it said.

Verizon’s dispute with its debt collector, CBE Customer Solutions, is dismissed in its entirety with prejudice, “including as to all claims, counterclaims, and parties,” said their joint stipulation Monday (docket 1:22-cv-08703) in U.S. District Court for Southern New York. The parties will bear their own costs and attorneys’ fees, said the stipulation. Verizon sued CBE Sept. 9 to recover $6.1 million in damages and court costs spent negotiating, finalizing and executing a Telephone Consumer Protection Act class settlement that Verizon alleged CBE’s negligence caused (see 2210140026). CBE countersued Nov. 18, alleging any negligence that mushroomed into a TCPA class action and settlement was of Verizon’s doing, not CBE’s (see 2211210034).

Awards of statutory or punitive damages to plaintiff Mariana Munoz would be “grossly disproportionate” to any injury she sustained, said defendant Wyndham Destinations, citing the due process and excessive fines clauses of the Constitution in its Monday answer (docket 3:23-cv-00342) to a Telephone Consumer Protection Act (TCPA) complaint in U.S. District Court for Southern California in San Diego. The TCPA imposes liabilities, penalties or fines “that are excessive, severe and oppressive as to be obviously unreasonable and wholly disproportionate to the offense of sending an unsolicited facsimile advertisement,” said Wyndham, citing the due process clauses of the Fifth and Fourteenth Amendments. The TCPA also violates the First Amendment because it’s “more restrictive than necessary” to achieve its purposes, said Wyndham. The TCPA has “no reasonable relation to any substantial government interest,” Wyndham said, “particularly in light of technological developments which permit recipients of ‘unsolicited advertisements’ … to determine whether to print such advertisements," and technological developments that eliminate any significant burden that fax transmissions "at one time may have imposed upon the telecommunications system and infrastructure.” The TCPA violates “the First Amendment right of the public to receive, and the First Amendment right of advertisers to send, legitimate commercial communications via facsimile,” it said. Munoz’s February robocalling complaint claims Wyndham used an automatic telephone dialing system to place calls after she experienced financial hardship and defaulted on her regular monthly payments (see 2302230041).

Scott Shapiro, one of the defendants in the robocall complaint brought by eight states under the Telephone Consumer Protection Act and individual state statutes (see 2303100036), objects to the plaintiffs’ May 8 motion in limine to bar Shapiro’s attorneys from raising 25 specific issues before a jury without first asking the court’s permission outside the jury’s presence, said his response Friday (docket 4:20-cv-02021) in U.S. District Court for Southern Texas in Houston. The motion would bar any mention of the defendants’ financial hardship resulting from their defense of the case. It would also prohibit mentioning the number of attorneys and staff employed during the case in the states’ attorneys general offices. None of the states’ counsel made any effort to confer with Shapiro’s lawyers about the 25 issues, and the motion should be denied “for this reason alone,” said Shapiro’s response. The motion “also is fundamentally defective” because it fails to make reference “to specific documents, testimony or evidence,” and is supported “only by citation to various rules of evidence and without any discussion as to why those rules support its position,” it said. The case is subject to being called on short notice for a jury trial in June.

Defendant Southern Power served a copy of the court’s May 2 order to show cause on Telephone Consumer Protection Act plaintiff Lee Cunningham via email Thursday, said its notice of service Friday (docket 2:22-cv-00621) in U.S. District Court for Middle Alabama in Montgomery. U.S. District Judge Chad Bryan ordered Cunningham to show cause by Tuesday why Southern Power’s motion to dismiss his TCPA complaint or for summary judgment in Southern Power’s favor shouldn’t be granted (see 2305030039). The judge admonished Cunningham to submit in his answer to the show cause order sworn statements that support his TCPA claims against the utility. Southern Power’s motion to dismiss said Cunningham’s complaint was “impermissibly frivolous” because he in fact knows Southern Power wasn't the party that inundated him with debt collection calls, but he’s suing the wholesale power company anyway.

As State Farm’s motions to dismiss or stay discovery of plaintiff Thomas Gebka’s Telephone Consumer Protection Act claims remain “under advisement,” U.S. District Judge John Kness for Northern Illinois in Chicago rescheduled May 18's telephone status conference in the case to June 28 at 10:20 a.m. CDT, said his minute entry (docket 1:22-cv-5546). Gebka alleges State Farm, via third parties acting on its behalf, made insurance-solicitation telemarketing calls to his cellphone without his “express” consent (see 2210110009).

Pro se plaintiff Na’eem Betz’s refusal to answer questions about his “financial situation” in a hearing on a “contemporaneous” in forma pauperis (IFP) case (in the character or manner of a pauper) prompted Chief U.S. District Judge James Boasberg for the District of Columbia to order him to file an affidavit under oath by May 16 indicating how much money he has received from any of his lawsuits in the past 12 months, said Boasberg’s minute order Tuesday (docket 1:23-cv-1177). Betz’s affidavit should also say whether he received any income “from any other source whatsoever” in the past 12 months, said the order. Failure to provide the information may lead to a “reconsideration” of his IFP request, it said. Betz’s complaint alleges Comcast Cable repeatedly called his cellphone using an artificial or prerecorded voice, in violation of the Telephone Consumer Protection Act. In presiding over Betz’s unrelated TCPA lawsuit against Synchrony Bank, Boasberg on Monday called Betz a “frequent pro se filer” (see 2305080020).

U.S. District Judge Aileen Cannon for Southern Florida in Fort Pierce signed an omnibus order Tuesday (docket 2:22-cv-14425) granting defendant loanDepot’s Feb. 24 motion to dismiss plaintiff Zachary Sawicki’s Telephone Consumer Protection Act complaint but with leave to replead. Her order gave Sawicki “one final opportunity” to amend his complaint by May 24. His final amended complaint “must clearly and specifically set forth the legal and factual basis supporting each of the claims asserted, including the class action allegations and the statutory and/or regulatory basis underlying each claim, mindful of the arguments and authorities presented” in loanDepot’s motion to dismiss, said the order. Nothing in her order “should be construed as a disposition of the merits” of loanDepot’s arguments in its motion to dismiss, with “such resolution to be reserved” for any future motion to dismiss after Sawicki’s “final opportunity to replead,” it said.

Plaintiff James Williams reached a settlement of his Telephone Consumer Protection Act claims against Hallmark Cards, said his settlement notice Monday (docket 3:22-cv-01340) in U.S. District Court for Connecticut in New Haven. Williams anticipates filing voluntary dismissal of his action with prejudice within 60 days, said the notice. In light of the settlement, U.S. District Judge Robert Chatigny entered an electronic order Monday dismissing Hallmark’s Feb. 24 motion to compel Williams’ dispute to arbitration as moot (see 2302270035). Williams, a Bridgeport, Connecticut, consumer, alleged Hallmark operates “an aggressive telemarketing campaign where it repeatedly sends text messages” to phone numbers listed on the national do not call registry and “over the messaged party’s objections” (see 2210260054).