In Barton v. Serve All Help All Inc., No. 3:21-cv-5338 RJB, 2022 U.S. Dist. LEXIS 161487, at *8 (W.D. Wash. Sep. 7, 2022), Judge Bryan denied summary judgment all around, but also denied a TCPA defendant’s jurisdictional motion.
Defendant argues that the Plaintiff cannot show that he has been “injured in fact” because he has not shown that he has suffered a violation of a privacy interest that the TCPA was intended to protect. Dkt. 87. The TCPA makes it “unlawful for any person within the United States . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). . . .The Defendant argues that the Plaintiff has not and cannot establish violation of a privacy right under the TCPA. Dkt. 87. It argues that the Plaintiff has “initiated and manufactured the TCPA violations for which he now sues.” Id. at 2. The Defendant points to the TCPA University website, the Facebook posts, and Plaintiff’s extensive TCPA litigation history. Id. It maintains that his “entire scheme is designed to invite calls that he would otherwise not have received.” Id. at 15. The Defendant contends that he cannot establish any “expectation of privacy regarding phones purchased and used in his for profit TCPA scheme.” Id. The Plaintiff argues that the Defendant’s calls invaded his privacy. He states that he “obtained the phone number (360)-910-1019 primarily for the purpose of [his] son having a cell phone,” and not “for the purpose of filing TCPA lawsuits.” Dkt. 95 at 1. He also points to an email from him to the mother of his child, informing her of the number and of the service details which is dated July 9, 2020. Dkt. 94-17. The Defendant’s motion to dismiss based on a lack of standing should be denied. There are disputed facts as to why the Plaintiff brought this case and his other TCPA cases. The Defendant raises its counterclaims (like fraud or misrepresentation) and/or defenses (like its nonprofit status or the Plaintiff’s consent to the calls) in an attempt to defeat the Plaintiff’s assertion of jurisdiction. Under the current record before the Court, there are disputed facts as to these issues. A “[j]urisdictional finding of a genuinely disputed facts is inappropriate when the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action.” Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983). In short, Defendant’s motion to dismiss raises defenses to be proven at trial, but does not successfully attack Plaintiff’s jurisdictional showing at this stage with material facts in issue. In short, Defendant’s Motion to Dismiss (Dkt. 87) should be denied.