On March 3, the Third Circuit upheld the Eastern District of Pennsylvania’s judgment in favor of a repeat player in TCPA litigation, concluding that the plaintiff had standing to sue because the calls in question went to his personal cellphone. The case is unusual because the same plaintiff admitted in prior litigation that he also used his cellphone for business purposes, which defeated his standing to sue in that case. The Third Circuit determined, however, that the defendant’s untimely discovery responses barred it from introducing evidence of plaintiff’s otherwise fatal admission in the earlier case.

• Plaintiff James Everett Shelton—a serial litigant who has filed dozens of TCPA actions—brought suit against Fast Advance Funding (“FAF”) in May 2018, claiming the loan company violated the TCPA by making 22 telemarketing calls to his cell phone, despite his number being listed on the National Do Not Call Registry.
• In an earlier case, the plaintiff admitted he used his cell phone for both personal and business purposes. The court in that case thus held that the plaintiff did not have standing, because business numbers may not be registered on the National Do Not Call Registry. FAF was aware of the earlier court’s finding and submitted a proposed jury instruction in the current case stating that the plaintiff lacked standing under the TCPA because he used his cell phone for both personal and business purposes.
• The court refused to adopt the proposed instruction, however, because FAF failed to timely respond to plaintiff’s request for admission that the cell phone was a personal telephone; thus, that fact was deemed admitted under FRCP 36. The court rejected FAF’s argument that it had no obligation to respond because its response was due after the close of discovery. The court then granted plaintiff partial summary judgment.
• The Third Circuit affirmed the district court’s rulings, holding that the plaintiff had standing to advance his TCPA claims. The Third Circuit explained that nothing in Rule 36 provides that a party may ignore requests for admission if the responses are due after the discovery cutoff. Thus, the undisputed fact that FAF’s calls went to plaintiff’s cellphone was enough to establish his standing under the TCPA, despite his admission in the separate TCPA case.
• The case serves as a cautionary reminder that—barring a local rule or scheduling order providing otherwise—parties must respond to all requests for admission served within the discovery period, even if the response deadline falls outside the discovery cutoff.

The case is Shelton v. Fast Advance Funding, Inc., No. 19-2265 (3d Cir. 2020). Read more here.