Reported / Citable
Background
Mark Ortega, a Texas resident who registered his cellular phone number with the National Do Not Call Registry in 2012, received unsolicited telemarketing calls from Freedom Solar Services (operating as Bright Solar Marketing) in May 2024. The defendant allegedly called Ortega’s number using spoofed telephone numbers as well as calls from specific numbers on May 23, 2024, at 9:58 a.m. (346-342-4602) and May 31, 2024 (830-431-9821). Ortega claims he repeatedly told company representatives he was not interested and did not want to be contacted, and that the company failed to maintain or honor an internal do-not-call list and lacked state registration for telemarketing activities.
Ortega sued under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(d), seeking statutory damages, injunctive relief, and attorney’s fees. He also asserted claims under the Texas Business and Commerce Code §§ 302 and 305. Freedom Solar moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim.
The Court’s Holding
The Magistrate Judge recommended granting the defendant’s motion to dismiss all federal claims and declining supplemental jurisdiction over remaining state law claims. On standing for injunctive relief, the court found that Ortega failed to allege facts demonstrating a substantial likelihood of future injury. Although Ortega’s pleading referenced a “campaign” of unsolicited calls, it identified only two specific call dates more than a year before the amended complaint was filed in July 2025, with no reference to ongoing or threatened future harm. This temporal gap and lack of evidence of continuing injury fell short of the Article III standing requirement for prospective relief.
On the merits of the damages claims under TCPA § 227(c)(5) and related provisions, the court held that Ortega failed to plead sufficient facts. The Fifth Circuit requires plaintiffs to allege “at least some facts relating to the calls he is claiming to have received,” such as the approximate number of offending calls or approximate dates. Ortega’s pleading of only two specific call dates without details about the total number of calls, caller identities, or call contents provided insufficient notice to the defendant. The court distinguished this from cases where plaintiffs survived dismissal by pleading specific details (dates, times, and phone numbers) for most alleged calls. Ortega’s conclusory allegations regarding a do-not-call violation under 47 C.F.R. § 64.1200(d)—merely asserting the company “failed to honor” requests without pleading when or how such requests were made—were likewise found insufficient.
Regarding Ortega’s remaining state law claim under Tex. Bus. & Com. Code § 302, the court recommended dismissal without prejudice and remand to state court. The court reasoned that judicial economy, convenience, fairness, and comity weighed in favor of remand, as no discovery had occurred, the parties had not briefed the state law claim, minimal federal resources had been expended, and state courts are better positioned to interpret state law.
Key Takeaways
- TCPA plaintiffs cannot survive a motion to dismiss by alleging a vague “campaign” of calls; they must plead specific facts about the approximate number and dates of calls received, and the court will credit bare legal conclusions or generalized allegations.
- For injunctive relief in TCPA cases, plaintiffs must show a substantial likelihood of future injury; past calls alone, especially if dated over a year before filing, are insufficient to establish Article III standing.
- Allegations that a company “failed to maintain or honor” a do-not-call list are conclusory without specific facts about when and how the plaintiff communicated such requests to the defendant.
- State TCPA claims derivative of federal TCPA claims will be dismissed if the federal claim fails for failure to state plausible allegations.
Why It Matters
This decision reinforces heightened pleading standards for TCPA claims in the Fifth Circuit and establishes important guardrails for early case dismissals. Many TCPA plaintiffs attempt to allege broad patterns and practices to avoid granular factual pleading, but this ruling makes clear such approaches will not survive a motion to dismiss. The decision particularly complicates injunctive relief in telemarketing contexts by requiring plaintiffs to demonstrate imminent future harm—a demanding standard when defendants may cease contact upon receiving notice of litigation. For consumers, the ruling underscores a practical challenge: even documented call patterns may be insufficient to establish TCPA standing if they occurred sufficiently in the past.
The court’s rejection of “campaign” pleading as lacking requisite specificity signals that TCPA plaintiffs should maintain detailed contemporaneous records of calls, including dates, times, caller identification information, and content from the outset. For defendants, the ruling provides significant ammunition in defeating early motions and may accelerate case resolution. For courts and practitioners, it clarifies that TCPA claims require more particularity than many consumer protection actions despite the statute’s private right of action, potentially raising barriers to access for individual consumers who lack detailed documentation of call frequency and timing.