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Where (1) a defendant filed a motion to dismiss, arguing that the plaintiff failed to plead sufficient facts to establish the defendant’s direct or vicarious liability for telephone calls that allegedly violated state and federal statutes, (2) that motion was denied and (3) the defendant has moved to certify that decision for interlocutory appeal, the motion should be denied because the first requirement for interlocutory appeal is not satisfied.
“This lawsuit arises from eleven phone calls Plaintiff allegedly received from Defendant or Defendant’s agents between July 25, 2023, and February 6, 2024. Plaintiff alleges that the calls were made in violation of the Telephone Consumer Protection Act of 1991, the Michigan Telephone Companies as Common Carriers Act, and the Michigan Home Solicitation Sales Act. Defendant moved to dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing inter alia that Plaintiff failed to plead sufficient facts to establish Defendant’s direct or vicarious liability for the calls. … In an opinion and order entered August 21, 2025, the Court denied Defendant’s motion.
“The matter is now before the Court on Defendant’s motion to certify that decision for interlocutory appeal pursuant to 28 U.S.C. §1292(b) and to stay the proceedings. … Defendant argues that the issue of its liability for the subject calls warrants interlocutory review.
“Under §1292(b), a court ‘may certify an order for interlocutory appeal if it is “of the opinion” that three conditions exist: “(1) the order involves a controlling question of law, (2) a substantial ground for difference of opinion exists regarding the correctness of the decision, and (3) an immediate appeal may materially advance the ultimate termination of the litigation.”’
“This Court’s ruling for which Defendant seeks an interlocutory appeal does not raise pure questions of law. Instead, the controlling issues are questions of fact applied to settled law. Contrary to Defendant’s assertion, there is no lack of authority on what is required to establish direct or vicarious liability in a TCPA case. Common law principles of agency apply. Those principles were applied by this Court here, as they were by the district judges in the cases Defendant cites in its brief. The differences in the holdings in those cases was not the requirements to establish direct or vicarious liability of the defendants, but the facts alleged to establish that liability.
“Thus, the first requirement for interlocutory appeal is not satisfied. As all three requirements must be met to warrant interlocutory review, the Court’s analysis begins and ends here.”
