Car Dealer: Who To Name As Defendant

[Proseguru]

What is the name of your state (only U.S. law)? Arizona


Hello,

I may have to take a car dealership to small claims court because of repeated Telephone Consumer Protection Act (TCPA) violations. My research has provided most of what I need for the case, but one detail remains. Who do I technically file the small claims suit against? The president of the company, since I have already sent him a certified letter on the matter (without response after confirmed delivery)? I also have two employees of the company that I have spoken with in begging them to stop calling me with TCPA violations, but I view them as witnesses if anything.


Thanks,
Dr. Z.

Go to your state's secretary of state's website and get the proper name of the company (that's who you sue-the company) and also get their registered agent (that's who you serve with the complaint).

 

[zowensby]

Update:

For those of you who seemed genuinely interested in how my TCPA saga progressed, here is a brief update...

I tried to ignore the telephone solicitation call (after a several before that and finally a certified latter requesting that such calls stop) that this post was originally started about and hoped that maybe my message to the car dealer was finally heard. Unfortunately no, as I received the same harassing advertisement again a couple of weeks ago, which makes this five such calls in seven months and no reasonable expectation that they will stop without action. Therefore, I finally filed the small claims paperwork with the charges and the court maximum of $2500 requested in compensation yesterday. I then sent the notice via USPS certified/restricted mail, but not before visiting the dealership to do a little recon on the habits of the intended recipient. Based upon what his employees say, he is typically at work when the postal carrier makes their rounds.

Now, the real question is if the president of the company will actually sign for my letter. Hey, it is a $12 gamble and cheaper than a process server. If that fails, then I will amend my paperwork and aim for the authorized agent of the company, which I probably should have done from the beginning. My local court only states that such notices be delivered to an owner (which is out of state), a director, or an authorized agent of a business.


Peace,
Dr. Z.

 

[zowensby]

Update and Opinions Requested...

Update:

Surprisingly, the President of this car dealership I am taking to small claims court personally signed for a USPS Certified Mail with Restricted Delivery letter, legally serving him with the law suit. (Yup, that saved allot of expense and hassle.) He further responded to my TCPA allegation in writing to the court stating that he never received my previous USPS Certified Mail letter that included my written request to end our business relationship and place me on their Do Not Call List. This letter also included a CD with the phone conversation that I had with his general manager requesting the same thing weeks prior and letter also sent to the company owner requesting the same thing. He seems pretty clueless and I have all the evidence that I need to present my case while I am awaiting a hearing date to be set.

So, I need some opinions in the meantime...

Should I send the defendant copies of the letter that was signed for and another CD of phone recordings or wait to present it all to the judge upon our hearing? On one hand, the defendant might see how air tight this case looks and opt to settle out of court. On the other hand, I could surprise him in the hearing and discredit all of his defense to date, further proving how disorganized and negligent he has been to the judge.


Peace,
Dr. Z.

 

[zowensby]

Note: As requested, I have reposted this entry from another thread into this one...


Hello,

Can anyone give me an idea about what is involved with filing a TCPA case in Federal Court (I live in Arizona)?

I did file a small claims court case and the judge threw it out for improper venue right off the bat. HA, I knew that it was the luck of the draw (other local judges have reportedly heard such cases in this court setting), but I actually thought that the defendant would settle out of court. I have been quite lenient with them (five documented requests to stop calling me) and was voluntarily willing to settle a potential $10000 case for the $3000 maximum of my local small claims court. Surprisingly, they showed up all ready to present their case, which I can't imagine what it was, as I have more than enough damaging evidence to back up my air tight case. Yup, they got lucky.

So, any suggestions from anyone on stepping up to Federal Court would be appreciated. I would very likely represent myself. What are the typical costs of just filing? How about the cost of deposing the defendants employees myself?


Thanks,
Dr. Z.

 

[justalayman]

(3) PRIVATE RIGHT OF ACTION.—A person or entity may, if otherwise permitted by the
laws or rules of court of a State, bring in an appropriate court of that State—
(A) an action based on a violation of this subsection or the regulations prescribed
under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to
receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.
If the court finds that the defendant willfully or knowingly violated this
subsection or the regulations prescribed under this subsection, the court may, in
its discretion, increase the amount of the award to an amount equal to not more
than 3 times the amount available under subparagraph (B) of this paragraph.

Ok, you'll have to explain how it was dismissed and what objections you presented to any argument to dismiss it. If the judge stated improper venue, you were required to defend your right to file in the court you were in. Did you? or did you simply accept the judges word?

How about the cost of deposing the defendants employees myself?

you will have to hire an authorized court reporter/recorder to record the depositions.

 

[zowensby]

Ok, you'll have to explain how it was dismissed and what objections you presented to any argument to dismiss it. If the judge stated improper venue, you were required to defend your right to file in the court you were in. Did you? or did you simply accept the judges word?


The judge dismissed the case due to wrong venue and without prejudice, per the form issued. He only read the written summery of my case and the response from the defendant, without allowing any further testimony or asking any questions. I did not object per say, but I did ask permission to ask a question, for which I stated that different judges of the community had interpreted the TCPA private right of action clause differently. The judge simply interrupted me and said that his decision was final.

That brings up another strategy. Is there any kind of appeal on something like this? I know that there is no such appeal for a judge's decision after hearing both sides in small claims court, but what about an appeal based upon procedural error (assuming that this wrong venue decision is legally wrong)?

 

[justalayman]

The judge dismissed the case due to wrong venue and without prejudice, per the form issued. He only read the written summery of my case and the response from the defendant, without allowing any further testimony or asking any questions. I did not object per say, but I did ask permission to ask a question, for which I stated that different judges of the community had interpreted the TCPA private right of action clause differently. The judge simply interrupted me and said that his decision was final.

then you should have objected to his ruling based upon the section of law I quoted above. Your failure to register a proper objection means you didn't have one. All you did was give him some anecdotal evidence the judges decision might not be proper. If you are going to contest his decision based on a claim such as you have, you have to be able to prove your objection. You didn't.

That brings up another strategy. Is there any kind of appeal on something like this?

You should be able to appeal the judges decision but given this is small claims, not sure that is necessary. Hang on for a few other folks to post. There are some very wise people here that may be able to get more into the technicalities of what happened and your next action. I will have to hunt around for an answer.

 

[tranquility]

As justalayman was saying, venue is the place, jurisdiction is the power. If you asked for an injunction against getting called, small claims would not have the power over that type of case. If you filed in the wrong small claims court, you could switch to another and file there. You can't appeal any "judgement" in AZ small claims. But, there is clearly a right of action in state court on this law. ( http://www.supremecourt.gov/opinions/11pdf/10-1195.pdf ) Why don't you just file in regular court rather than federal? Yes, you can file in federal, but that will raise the costs for you and may be more of a hassle then it's worth.