Ott v. Mortgage Investors Corp. of Ohio, Inc.
65 F. Supp. 3d 1046
D. Or.2014Background
- Plaintiffs file a class action under the TCPA alleging MIC conducted a nationwide telemarketing program targeting U.S. veterans using an ATDS.
- MIC is a mortgage lender (IRRRLs) with operations nationwide; individual MIC directors/officers are named as defendants.
- TCPA prohibits non-emergency calls to cellular numbers without prior express consent and bans repeated calls in violation of NDNC rules.
- Plaintiffs allege three TCPA violations: ATDS calls to cellular numbers, disregard of do-not-call requests, and calls to NDNC-listed numbers.
- Multiple motions were filed; the court denied most, granting MIC partial relief to strike certain class allegations; discovery and class issues proceeded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction over individuals | Defendants directed tortious acts in Oregon; activities breach TCPA collectively. | No sufficient forum-directed contact; fiduciary shield and lack of minimum contacts. | Oregon exercise of jurisdiction over individuals is proper; fiduciary shield does not bar. |
| Failure to state a claim against individuals | Plaintiff allegations show personal participation in or authorization of TCPA violations. | No direct calls by individuals; insufficient to impose liability. | Second Amended Complaint survives; individual liability adequately pled. |
| Strike of class allegations | Classes are ascertainable and common issues predominate; comity with Washington action supports certification. | Classes lack ascertainability, commonality, and superiority; prior decision in Washington action controls. | Internal Do-Not-Call Class struck with prejudice; National Do-Not-Call Class struck without prejudice and with leave to amend; Cell Phone Class not struck at this stage. |
| Lack of prosecution dismissal | Delay was due to defendants' motions and discovery strategies, not willful neglect. | Plaintiffs delayed discovery and failed to prosecute. | FRCP 41(b) dismissal denied; sanctions not warranted. |
Key Cases Cited
- Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir.2004) (two-prong test for specific jurisdiction and minimum contacts)
- Core-Vent Corp. v. Nobel Indus., AB, 11 F.3d 1482 (9th Cir.1993) (three-part test for specific personal jurisdiction)
- Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir.1998) (forum-related activities and relatedness in jurisdiction analysis)
- Grant v. Capital Mgmt. Servs., L.P., 449 F.App’x 598 (9th Cir.2011) (consent defense burden on creditor for TCPA claims)
- Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir.2012) (three elements of TCPA claim; pleading consent issues)