Update:  Motion Continued to November 21, 2008. –Ed.    Defendants’ Motion to Dismiss based on the Hobbs Act is fully briefed, and scheduled for hearing on October 31, 2008.   Plaintiffs’ Opposition states:

It appears that part of Defendant’s motion has merit and Plaintiff agrees that the Orders granting Plaintiff’s and denying Defendant’s summary judgment motions must be set aside for lack of subject matter jurisdiction under the Hobbs Act.  Plaintiff reluctantly agrees to Defendant’s request to do vacate those Orders of May 20, 2008 and makes a separate request to do so.  Those motions both sought to have this Court determine the validity of the recent FCC Ruling which set forth the FCC’s new definition of ‘prior express consent’ under the TCPA.  The Court held the FCC Ruling was contrary to Congress’ intent in passing the TCPA and held the FCC Ruling did not apply in this case”.  ¶  However, plaintiff does not agree with any other remedies sought by Defendant.  This case need not be dismissed because this Court does not lose subject matter jurisdiction if there is no challenge to the FCC Ruling.  The jurisdictional problem arising form the Court’s review of the FCC Ruling is solved by vacating the orders, as Defendant seeks.  Once the Orders are vacated, this Court plainly has subject matter jurisdiction of the rest of the case, unless and until Plaintiff challenges the FCC Ruling in the Circuit Court, which she does not intend to do.  Furthermore, because the First Amended Complaint Plaintiff seeks leave to file, there will be no need to challenge the FCC Ruling for purposes of this case.  ¶  One reason that this case can go forward is that the Plaintiff will amend her original complaint and substitute a new class representative [].  Unlike the original plaintiff, Tricia Leckler, [the new representative] never gave his cell phone number that was called to Defendant in an application or otherwise.  Therefore, the FCC ruling’s validity on that issue of “prior express consent” is irrelevant to this new Plaintiff and the new Subclass One he represents.   [Emphasis added]

Judge Illston’s Previous Ruling:  leckler-v-cashcall-inc-2008-ndcal Defendants Motion:  leckler-v-cashcall-inc-ds-mot-to-dism Plaintiffs’ Opposition:  leckler-v-cashcall-inc-ps-opp-to-mot-to-dismiss1 Defendant’s Reply:  leckler-v-cashcall-inc-ds-reply-on-mot-to-dism