Chinitz v. Intero Real Estate Services

Background

Intero Real Estate Services moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the first amended complaint filed by Ruby Mitchell and Edward J. Kelly. They had recently been substituted as the named plaintiffs after the court granted a motion to amend the complaint. The court had previously certified a class and ruled on summary judgment motions.

Telephone Consumer Protection Act claims

Intero argued that the plaintiffs had not adequately alleged that the calls they received were telephone solicitations or were made for telemarketing purposes under the Telephone Consumer Protection Act. The court disagreed, finding that the complaint identified specific allegations that plausibly described telephone solicitations from Intero agents through their Mojo accounts.

Intero also argued that the plaintiffs’ second Telephone Consumer Protection Act claim failed because they did not allege that they first asked Intero not to call and were then called again. The court rejected that argument. It found that the plaintiffs had sufficiently alleged that Intero agents repeatedly made telemarketing calls. The court explained that Intero’s implementation of adequate procedures for honoring do-not-call requests was an affirmative defense, so the plaintiffs did not have to plead in the complaint that Intero lacked such procedures.

Required parties

Intero argued under Rule 19(a) that the corporate sales associates who allegedly placed the calls were necessary parties. The court disagreed. It found that the associates’ interests would not be impaired by the case because Intero adequately represented those interests. The court also relied on its prior determination in this action that the sales associates were Intero’s agents as a matter of law. The court stated that agents and joint wrongdoers generally are not indispensable parties when full liability can be imposed on the principal or another joint wrongdoer without joining them.

California Unfair Competition Law claim and disposition

The plaintiffs conceded that their claim under California’s Unfair Competition Law should be dismissed. The court therefore granted Intero’s motion with regard to that claim and dismissed it. The court denied the motion as to the plaintiffs’ other claims.

Because this was a partial Rule 12(b)(6) ruling about whether the claims were legally sufficient, the classification is procedural rather than a decision on the ultimate merits of those claims.