CR Fitness Moves for Sanctions vs. Plaintiff, Counsel for Pursuing ‘Frivolous’ Case
CR Fitness seeks Rule 11 sanctions against plaintiff Ben Davis and his counsel for pursuing a “frivolous” Telephone Consumer Protection Act lawsuit, said its motion Friday (docket 8:23-cv-02333) in U.S. District Court for Middle Florida in Tampa. Davis alleges that…
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CR Fitness, the largest U.S. franchisee of Crunch Fitness gyms, embarked on an aggressive marketing campaign to sell club memberships by placing unsolicited, prerecorded telemarketing robocalls to consumers (see 2310140001). Davis alleges that he received a single unsolicited voicemail from CR Fitness in violation of the TCPA, but the “fatal flaw” to his case is that CR Fitness “never called him,” said the defendant's motion. Davis and his counsel by now “are well aware that the alleged voicemail was not made directly by CR Fitness, on behalf of CR Fitness, or at CR Fitness’ direction,” it said. The company provided its call records showing it never called Davis, it said. Notwithstanding the evidence of “non-liability,” the plaintiff “refuses to dismiss this baseless action, a failure that is magnified by the nature of class action claims where ascertainability is crucial,” the motion said. “This action is frivolous and should be dismissed," with sanctions being imposed against Davis and his counsel “for bad faith pursuit of these claims,” it said.