Magistrate Judge Recommends ‘Threshold Dismissal’ of TCPA Claims vs. Southern Power
U.S. Magistrate Judge Chad Bryan for Middle Alabama in Montgomery recommends plaintiff Lee Cunningham’s Telephone Consumer Protection Act claims against Southern Power be dismissed or that the utility’s motion for summary judgment be granted, said his signed report Friday (docket…
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2:22-cv-00621). The utility contends Cunningham has no basis for believing, and in fact knows, that Southern Power isn’t the party that allegedly called him, in violation of the TCPA (see 2304280041). He’s also well aware his residential electrical service is with Alabama Power, not Southern Power, and it was Alabama Power that allegedly called him, it said. When a plaintiff is permitted to proceed in forma pauperis without prepayment of fees or security, as Cunningham was, the court is charged with “an affirmative duty” to dismiss the action if it’s determined to be frivolous, said Bryan’s report. Bryan is “of the view” that Cunningham’s “naked allegations” against Southern Power are “clearly baseless” and subject to “threshold dismissal,” it said. This isn’t an instance “where the court is required to weigh competing facts or make a credibility determination,” it said. Cunningham “has offered no facts to demonstrate that a claim lies against Southern Power,” it said.