In Sacchi v. Care One, LLC, 2015 WL 3966034 (D.N.J.,2015), Judge Wigenton dismissed a TCPA class action when discovery revealed that Plaintiff’s counsel was the primary user of the telephone number at issue.

On February 3, 2014, Plaintiff, John Sacchi, filed a putative class-action complaint against Defendant Care One alleging that Care One maintained an illegal telephone solicitation practice in violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227(b)(1)(A)(iii) (“TCPA” or “the Act”).1 See Sacchi I Compl. ¶ 2. In particular, Plaintiff alleged that in or about January 2014, Care One called his cellular telephone number, which is listed on the National Do–Not–Call Registry, on multiple occasions without prior consent and left pre-recorded voice messages inviting him to attend a Care One career fair. Id. ¶¶ 12–23.  Care One, a Delaware corporation headquartered in New Jersey, “markets and sells residential health services to medically compromised individuals.” Id. ¶ 1. In its Answer to the Complaint, Care One denied all allegations, admitting only that telephone calls were made on its behalf to registered nurses throughout New Jersey to inform them of employment opportunities at Care One facilities in New Jersey. See Care One Answer, p. 1, ¶¶ 2–54.  The calls at issue were made by Guide Publications, a publishing company located in Long Branch, New Jersey, that provides regional and national recruitment guides, distributes print and online marketing materials, and importantly, hosts career fairs for itself and on behalf of corporations like Care One. See Dkt. No. 25, Declaration of James Clare (“Clare Decl.”), Ex. C., Declaration of Michael Beson in Support of Defendant’s Motion for Sanctions (“Beson Decl.”), ¶¶ 1–3. At career fairs, Guide Publication collects the attendees’ contact information including names, land line and cellular telephone numbers, e-mail addresses and other professional information, with the express purpose of notifying them of career opportunities and future career fairs. Id. ¶ 3. A contact list is then populated from the information of attendees who consent to receive future correspondence from Guide Publications and its clients. Id. ¶ 5. Guide Publications also obtains some of its contact information from outside vendors, who are required to screen out numbers listed on the Do–Not–Call Registry. Id. ¶ 6. *2 Plaintiff is not a healthcare professional. However, Plaintiff’s spouse and attorney of record, Steven J. Simoni (“Simoni”), is a registered nurse. Guide Publications claims to have obtained the telephone number at issue from Simoni in or before February 2013 when he attended one of its career fairs. Beson Decl. ¶ 7.  Reportedly, Simoni has also been receiving email newsletters from Guide Publications since June 29, 2012, and has opened twenty-eight of them. Id. ¶ 7.  In January 2014, acting on Care One’s behalf, Guide Publications placed two calls to the healthcare professionals on its contact list to announce an upcoming Care One career fair. Beson Decl. ¶¶ 10–11.  Due to a severe snow storm in the greater New Jersey area, the career fair was postponed from January 21st to January 23rd. Id. ¶ 12. Consequently, on January 22, 2014, Guide Publications sent a second pre-recorded message to its contact list announcing the new date. Ibid. Shortly thereafter, Plaintiff filed a six-count class action complaint asserting: (1) violations of the TCPA “RoboCall” Prohibition codified at 47 U.S.C. § 227(b)(1)(B);4 (2) knowing and willful violations of the TCPA “RoboCall” prohibition; (3) violations of the TCPA “Sales Call” prohibition codified at 47 U.S.C. § 227(c)(3)(F); (4) knowing and willful violations of the TCPA “Sales Call” prohibition; (5) trespass to chattel; (6) conversion. See Sacchi I Compl., ¶¶ 34–54.    On July 31, 2014, after nearly seven months of withholding the actual telephone number that allegedly received the calls from Care One, Simoni admitted that the subject telephone number, although paid for by Sacchi, is assigned to Simoni’s cellular telephone and is the primary office telephone number listed on the letterhead for his legal practice. Clare Decl. ¶ 5. Also, on September 22, 2014, in response to questioning by the Court during oral argument on Plaintiff’s motion for judgment on the pleadings, which was denied, Simoni again admitted that the calls were made to his telephone number. Clare Decl. ¶ 6; Dkt. No. 24, Transcript of September 22 Motion Hearing, 14:3 to 15:6. Notwithstanding this admission, Simoni posited that even though Plaintiff Sacchi was not the targeted party, as the subscriber to the subject cellular phone, Sacchi has standing to assert TCPA claims. Ibid. Simoni further commented that if Care One continued to challenge Sacchi’s standing to pursue his claims, he would “file [his] own individual case.” Id. at 14:17–18.

The District Court found no standing.

Courts within this District have also adopted the “intended recipient” test in assessing a plaintiff’s standing to assert TCPA claims. In Cellco P’ship v. Wilcrest Health Care Mgmt., a Court in this District agreed with the “burgeoning body of case law [which] establishes that only the ‘called party,’ i.e., the ‘intended recipient,’ has statutory standing to bring suit under the TCPA.” 2012 U.S. Dist. LEXIS 64407, at *18 (citing Cellco P’ship v. Dealers Warranty, LLC, 2010 U.S. Dist. LEXIS 106719, at *9–10; Leyse v. Bank of Am ., 2010 U.S. Dist. LEXIS 58461, at *1 (S.D.N.Y. June 14, 2010); Kopff v. World Research Grp., LLC, 568 F.Supp.2d 39, 40–42 (D.D.C.2008)).  At this juncture, it is necessary to note that Plaintiffs have consistently amended their theory for relief to fit with the facts as they shift, even at the risk of contradicting their earlier position. To illustrate: Sacchi initially asserted in his complaint that he is the subscriber and user of the subject telephone. After discovery revealed that Simoni used the cellular phone regularly for personal and business purposes and was most likely the target of the allegedly illegal calls, given that Simoni was a registered nurse, Sacchi argued that he nonetheless has an independent right, as the telephone subscriber, to bring TCPA claims. Next, Sacchi, joined by Simoni, filed a second complaint, wherein they allege that they both use the phone and each have equal standing to assert TCPA claims based on the same alleged violation.  What is apparent from the competent facts before this Court is that while Sacchi is the listed subscriber, his spouse and attorney, Simoni, is the regular user of the subject telephone number. Simoni admitted that he uses the subject cellular telephone number for personal and business purposes: the number is listed on the letterhead for his legal practice and was provided to the New Jersey Department of Consumer Affairs when he applied to be licensed as a registered nurse in the state. See Sacchi II Compl., ¶ 16. The facts also support the conclusion that Simoni was the intended recipient of Care One’s communication: as a registered nurse in the state of New Jersey, he is part of Care One’s targeted audience. Moreover, Simoni has been receiving emails from Care One through its vendor, Guide Publications, since 2012, and has opened some of them. Lastly, Guide Publications associated the subject telephone number to Simoni’s name in its records, not Sacchi’s. Plaintiffs do not cite, and this Court was unable to find, authority to support the proposition that both Simoni and Sacchi have different but equal bases to pursue TCPA claims. Rather, as held in Cellco P’ship v. Wilcrest Health Care Mgmt., the TCPA allows only one recovery per each allegedly illegal call. 2012 U.S. Dist. LEXIS 64407, at *24 (D .N.J. May 8, 2012) (citing Charvat v. GVN Mich., 561 F.3d 623, 630–33 (6th Cir.2009)).6 The proper plaintiff here is Simoni, not Sacchi. Therefore, Care One is entitled to judgment on the pleadings. Sacchi’s first complaint is dismissed.