I have previously reported the victory of a “serial plaintiff” Mr. Shelton in a TCPA action, not because of factual findings on his TCPA claims, but because of the defendant’s failure to proceed to court. respond to discovery, resulting in the court’s decision to consider the uncontested facts for the purposes of Shelton’s motion for summary judgment. See YIKES: CJM Granted on TCPA ‘Serial Plaintiff’ Claims – Perhaps Defendant Should Have Taken Case More Seriously. I just drew my attention today, that Mr. Shelton, (and I would say, using the same strategy in another TCPA action in the same district), also got a successful verdict against another telemarketer, who did not respond to a series of admissions requests while Discover was closed before the response deadline. See Shelton v. Fast Advance Funding, LLC, 378 F. Supp. 3d 356 (ED Pa. 2019).
Defendant Fast Advance subsequently filed an appeal with the Third Circuit Court of Appeal. The questions before the tribunal were as follows: First, whether the district court abused its discretion in determining that applications for admission served less than thirty days before the conclusion of the investigation were deemed to be admitted when the party to which requests were addressed did not respond; and second, whether the district court erred in determining that an applicant has standing under the TCPA because he received unsolicited telemarketing calls on his cell phone used for personal purposes. See Shelton v. Fast Advance Funding, No. 19-2265, 2020 US App. LEXIS 6676 (3rd Cir. March 3, 2020).
Fast Advance maintains that it was not obligated to respond to Shelton’s admissions applications because the deadline to respond was after the investigation closed. However, the court disagreed: “Nothing in [Rule 36] provides that a party can ignore requests if responses are due after discovery is closed. The rule states that “A case is admitted unless, within 30 days of service, the party to whom the request is made serves on the requesting party a written response or objection to the case and signed by the party. or his lawyer. “Nourishes. R.Civ. P. 36 (a) (3).
Yes, that’s what the rule says. Simple and straightforward.
In addition, the court also points out that admission requests are separate from other discovery devices and that a party is obligated to respond even if the deadline is after the discovery is closed, citing to Langer c. Monarch Life Inc. Co., 966 F. 2d 786, 803 (3d Cir. 1992).
As to the second question, Fast Advance submits that Shelton did not have standing under the TCPA because in another TCPA action, Shelton admitted that he was using his cell phone for business and personal purposes. But the court ultimately hinted that TCPA’s other action had nothing to do here. Here, by contrast, there was no evidence on the record in the district court that Shelton used his cell phone for business purposes. The district court therefore correctly decided that Shelton had standing to bring an action under the TCPA.
And why? Well, because Fast Advance did not respond to Shelton’s request to admit that Shelton’s cell phone was a “personal cell phone” and a “private cell phone … used for personal use.” Shelton, 378 F. Supp. 3d 356, 359. The case was therefore deemed to have been admitted!
Uh … just like the FCS Capital the court said: “[defendant]abdication of his obligations  has consequences. The requested party is required to respond to or object to the RFA even if the deadline is after the discovery has closed. Please, please, please take these obligations and put them on the calendar seriously.
© Copyright 2021 Squire Patton Boggs (US) LLPRevue nationale de droit, volume X, number 65