United States District Court, D. New Jersey
OPINION & ORDER
MCNULTY, UNITED STATES DISTRICT JUDGE
Sloatman, has filed this putative class action against Triad
Media Solutions, Inc., d/b/a comparetopschools.com
("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.
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." 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)).
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,
www.comparetopschools.com. 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.)
response to the motion, Sloatman has offered her own
certification. In it, she states that she "never visited
'CompareTopSchools.com' prior to receiving the
harassing telemarketing call from Defendant and I never
provided my information in any form on CompareTopSchools.com
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 www.comparetopschools.com at any time." (ECF no.
23-3 at 3-5)
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.)
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.")).
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 comparetopschools.com, for an order
imposing Rule 11 sanctions and striking the complaint is
 Rule 11, in its entirety, reads as
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 ...