Most TCPA defendants respond to a lawsuit with an answer or a motion to dismiss. The defendant in Bathersfield v. Heart & Soil Supplements, LLC, No. 3:26-cv-01124-GPC-SBC, 2026 U.S. Dist. LEXIS 248511 (S.D. Cal. Oct. 29, 2026), went further. It sued the plaintiff back.
The underlying case is a quiet hours claim. The plaintiff alleges the defendant texted him marketing messages at 6:11 a.m. and 5:14 a.m., well before the 8 a.m. start the FCC’s rule allows. The defendant answered along with two counterclaims.
The first asked the Court to declare that the quiet-hours rule covers only “telephone solicitations,” that consented-to texts aren’t telephone solicitations, and that the defendant therefore broke no rule.
The Court recognized this as the defendant’s defense wearing a different hat. Each requested declaration either restated common ground, repeated the defendant’s affirmative defenses, or was “simply the inverse” of the plaintiff’s claim. Courts in the Ninth Circuit strike declaratory counterclaims that are the “mirror image” of the complaint or that repeat affirmative defenses. Under Stickrath v. Globalstar, Inc., they do this only when there is “a complete identity of factual and legal issues.” So the Court went through the defendant’s three requested declarations one at a time.
The first was that the quiet-hours rule applies only to “telephone solicitations.” Both sides already said that. The second was that texts sent with consent are not telephone solicitations. The Court called this “the heart of the dispute”: whether the plaintiff has to prove he didn’t consent, or the defendant has to prove he did. But the complaint already raises that question by alleging the plaintiff never authorized the texts at those hours. So do the defendant’s own first and second affirmative defenses. The Court will decide it in a separate order on the defendant’s motion for judgment on the pleadings. The third was that the defendant didn’t violate the rule, which was “simply the inverse” of the plaintiff’s claim.
The Court struck that counterclaim as redundant, without leave to amend.
The second counterclaim was bolder. The defendant claimed the plaintiff breached its website Terms of Service by suing in court, and it sought the cost of its defense as damages. Under Texas law, the Court held, attorney’s fees “are not compensatory damages.” The indemnity clause also didn’t help. It used “the hallmark language of a third-party indemnification provision,” which covers claims by outsiders, not claims by the company’s own customer. That counterclaim was dismissed with leave to amend. Along the way, the defendant told the Court it had “elected damages over specific performance” of its arbitration clause. Apparently sending the plaintiff a bill was more appealing than sending him to arbitration.
For now, the early-morning texts will be litigated on their merits, and the defendant is paying its own lawyers, as it should.
