TCPA Claims vs. CR Fitness Don’t Lack Subject-Matter Jurisdiction, Says Plaintiff

Rather than challenge the “legal sufficiency” of Ben Davis’ allegations that CR Fitness violated the Telephone Consumer Protection Act by placing an “unconsented, prerecorded” telemarketing call to Davis’ cellphone (see 2310140001), CR Fitness instead challenges subject-matter jurisdiction under Rule 12(b)(1), said Davis’ memorandum of law Tuesday (docket 8:23-cv-02333) in U.S. District Court for Middle Florida in Tampa in opposition to CR Fitness’ motion to dismiss. CR Fitness argues that Davis lacks standing because it never made the “violative” call, but its contention that there’s no evidence CR Fitness contacted Davis is “categorically incorrect,” said the memorandum. Included in Davis’ complaint is a screenshot of the voicemail log demonstrating that he received the call on the date, time and from the number alleged, plus a transcript of the prerecorded message from his voicemail that identifies CR Fitness as the caller, it said. Despite the fact that the case is still very much in the pleading stage, Davis produced to CR Fitness an audio recording of the prerecorded phone message, a screenshot of the call log from his phone, and a video of him opening his phone and playing the voicemail message, it said. The notion that the court lacks subject-matter jurisdiction to adjudicate the dispute because the challenged conduct isn’t “fairly traceable” to CR Fitness is “unavailing,” said the memorandum. The defendant wants the court to ignore the evidence of the call because “it does not fit its narrative, and instead take its word that it could not possibly have made the call” to Davis, it said. The factual evidence establishes that Davis was injured by CR Fitness’ “unconsented, prerecorded call and that there is subject matter jurisdiction,” it said.