Mich. Judge Vacates Her Own TCPA Case Dismissal, Says She Erred Procedurally

U.S. District Judge Kay Behm for Eastern Michigan in Flint granted plaintiff Michael Dahdah’s motion for reconsideration, reopening his Telephone Consumer Protection Act case against Rocket Mortgage and vacating her Sept. 12 order granting Rocket’s motion to dismiss, said her signed order Friday (docket 4:22-cv-11863). The judge also denied Rocket’s motion to compel Dahdah’s TCPA claims to arbitration, and granted Dahdah leave to file a motion to amend his complaint, according to her order.

Behm agrees with Dahdah that she erred by deciding the merits of the motion to dismiss “before first resolving the motion to compel arbitration on the merits,” said her order. The 6th U.S Circuit Court of Appeals, in its unpublished 2019 decision in Southard v. Newcomb Oil Co., held that where a motion to compel arbitration is opposed on the ground that there’s no valid or enforceable arbitration agreement, the district court was required to first rule on the arbitration motion.

That’s because once a motion to compel arbitration is filed, the district court must refrain from further action and determine whether there is a written agreement to arbitrate between the parties, said Behm’s order. If the court decides that the matter must go to arbitration, “then it need not have decided the merits of the motion,” it said.

But the court determined that the motion to compel arbitration should be denied, so its decision on the merits of the motion to dismiss stands, said Behm’s order. The court will also grant the motion for reconsideration “regarding amending the complaint and allow Dahdah to file a motion for leave to amend the complaint in order to address the defects identified in the order granting the motion to dismiss,” it said.

LoanDepot’s Sept. 14 notice of supplemental authority cited Behm’s now-vacated order dismissing Dahdah’s complaint in support of its motion to dismiss plaintiff Lee Abrahamian’s first amended TCPA complaint for failure to state a claim under Rule 12(b)(6) (see 2309150060).

The court in Dahdah's case found it “difficult to draw the inference” that the calls the plaintiff alleged he received from Rocket were made “for a solicitation or marketing purpose,” as Daddah's TCPA claim required, said the notice. Abrahamian's case against LoanDepot (docket 2:23-cv-00728) remains pending in U.S. District Court for Arizona in Phoenix.