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Sloatman v. Triad Media Solutions, Inc.

United States District Court, D. New Jersey

September 4, 2018


          OPINION & ORDER


         Lala Sloatman, has filed this putative class action against Triad Media Solutions, Inc., d/b/a ("Triad"), alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. The essential allegation is that Triad, using an automatic telephone dialing system, called Sloatman's cell phone No. in September 2016 to make a commercial solicitation, without her prior consent. Triad's current motion asks the Court to strike the Complaint and impose sanctions under Rule 11, Fed.R.Civ.P. Triad may or may not turn out to be correct on the merits; the motion to strike and impose sanctions, however, is denied.

         Rule 11(b), Fed. R. Civ. P., provides, inter alia, that by submitting a pleading, such as a Complaint, "an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery."[1] See also Napier v. Thirty or More Unidentified Federal Agents, Employees or Officers, 855 F.2d 1080, 1090 (3d Cir. 1988). Rule 11 is not a means of getting around the standards on a motion to dismiss. A fortiori, it is not a vehicle for resolving disputed questions of law or fact. StrikeForce Techs., Inc. v. WhiteSky, Inc., 2013 WL 5574643, at *4 (D.N.J. Oct. 9, 2013). Where such disputes exist, they are appropriately resolved after discovery on a motion for summary judgment. See, e.g., Blattman v. Siebel, 2017 WL 3129134, at *2 (D. Del. July 24, 2017) (citing Marlowe Patent Holdings v. Ford Motor Co., 2013 WL 6383122, at *5 (D.N.J. Dec. 5, 2013) (stating that "[a] Rule 11 motion for sanctions is not an appropriate substitute for summary judgment proceedings, and should not be used to raise issues of legal sufficiency that more properly can be disposed of by ... a motion for summary judgment."); Thomer v. Sony Comput. Entm't Am. Inc., 2010 WL 904797, at *2 (D.N.J. Mar. 9, 2010) (denying defendants' motion for sanctions as premature when it "came before any dispositive motion or final judgment in favor of... defendants")). To meet (or rattier, flunk) the Rule 11 standard, the allegations must be "patently unmeritorious or frivolous" and "unsupported by fact or law." Doering v. Union County Bd. Of Chosen Freeholders, 857 F.2d 191, 194 (3d. Cir. 1988). Thus Rule 11 is designed "to penalize irresponsible lawyering, not to address the strength or merits of a claim." StrikeForce Techs., 2013 WL 5574643, at *4 (citing Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94-95 (3d Cir. 1988)).

         The Complaint in this case, according to Triad, lacks the necessary evidentiary support. Triad states without objection that such a commercial call is permissible with the recipient's prior consent. See 47 U.S.C.§ 227(b)(1). Triad has attached what it calls "irrefutable" evidence of consent in the form of an "opt-in" printout from its website,[2] This evidence, it says, demonstrates that on September 9, 2016, Sloatman explicitly consented to being contacted at her cell phone number, which she supplied by typing it into the online form and checking the appropriate box. (Butler Dec. Exs. A & B (ECF no. 15-2)) In correspondence, Triad brought this evidence to the attention of Sloatman's counsel, who declined to withdraw the Complaint. See generally Fed.R.Civ.P. 11(c)(2). Sloatman's counsel explained that his client "has never visited your website nor has she provided her information, including her cellular telephone No. to you for any reason." (ECF no. 15-1 at 17) He went on to state that the "consent" small print on the website would not have been visible and that contact information or consent may be supplied for limited purposes only. (Id.)

         In response to the motion, Sloatman has offered her own certification. In it, she states that she "never visited '' prior to receiving the harassing telemarketing call from Defendant and I never provided my information in any form on at any time." (ECF no, 23-1) She also attaches her own interrogatory answers, in which she states that she "cannot recall visiting any websites seeking educational opportunities" and also that "Plaintiff cannot recall all companies or organizations she has given consent to contact her. However, Plaintiffs cellular telephone No. has been on the do-not-call list since 2011, therefore she does not consent to receiving contact that way from any company or organization." In response to a question specifically referring to Triad's website, Sloatman responded: "Plaintiff does not recall accessing the website at any time." (ECF no. 23-3 at 3-5)

         Aha, says Triad in reply. By saying in her interrogatory answers that she "cannot recall" ever giving consent, Sloatman is admitting that she has no basis to refute its documentary evidence from its website. (Def. Reply, ECF no. 24) Not quite. Triad's reply fails to grapple with the certification in which Sloatman states categorically that she did not visit the website or give her consent. Triad then mischaracterizes what she said in her interrogatory answers as an admission that she cannot recall "whether" she gave consent. (Def. Reply at 1) This is the merest sophistry. Any testimony that something did or did not occur is subject to the witness's memory; it is not for that reason incompetent evidence under Fed.R.Civ.P. 601, as Triad seems to argue. (Id.)

         In saying-and I do-that Triad's motion has wasted the Court's time, I do not express any opinion on the merits. Triad submits website evidence that Sloatman consented; Sloatman submits, to the Court and to her counsel, that she didn't. The point is that there is a factual dispute, which must be resolved by the usual means, not in the context of a sideshow motion for sanctions. "While the focus of Rule 11 is on whether a claim is wholly without merit, and is not dictated by whether resources will be expended in deciding the motion, Rule 11 motions should conserve rather than misuse judicial resources." Moeck v. Pleasant Valley Sen. Dist, 844 F.3d 387, 392 (3d Cir. 2016) (citing Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 99 (3d Cir. 1988) ("Rather than misusing scarce resources, [the] timely filing and disposition of Rule 11 motions should conserve judicial energies.")).


         For the reasons stated in the foregoing Opinion, IT IS this 4th day of September, 2018, ORDERED that the motion (ECF no. 15) of the defendant, Triad Media Solutions, Inc., d/b/a, for an order imposing Rule 11 sanctions and striking the complaint is DENIED.



[1] Rule 11, in its entirety, reads as follows:

Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name-or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the ...

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