Mantha v. QuoteWizard.com

• Decision Date: 03 February 2022
• Docket Number: CIVIL 19-12235-LTS
• Parties: JOSEPH MANTHA, on behalf of himself and others similarly situated, Plaintiff, v. QUOTEWIZARD.COM, LLC, Defendant.
• Court: U.S. District Court — District of Massachusetts

JOSEPH MANTHA, on behalf of himself and others similarly situated, Plaintiff,
v.
QUOTEWIZARD.COM, LLC, Defendant.

CIVIL No. 19-12235-LTS

United States District Court, D. Massachusetts

February 3, 2022

ORDER ON REPORT AND RECOMMENDATION (DOC. NOS. 253, 258)

Leo T. Sorokin United States District Judge

Plaintiff Joseph Mantha brought a class action lawsuit on October 29, 2019 against Defendant QuoteWizard.com, LLC (“QuoteWizard”) alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Doc. No. 1. QuoteWizard moved for summary judgment (Doc. No. 201) on the only live claim in Mantha's Amended Complaint- Count II alleging a violation of one provision of the TCPA.^[1] Mantha opposed that motion (Doc. No. 221) and cross-moved for partial summary judgment (Doc. No. 205) on two issues: (1) that Mantha did not provide QuoteWizard prior express consent to send him telemarketing texts and (2) that the protections of the TCPA and the federal Do Not Call (“DNC”) Registry encompass his wireless phone number. QuoteWizard opposed the cross-motion. Doc. No. 223. Pursuant to a referral, Chief Magistrate Judge Kelley recommends that the Court deny QuoteWizard's

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Motion for Summary Judgment (Doc. No. 201) and allow Mantha's Partial Cross-Motion for Summary Judgment (Doc. No. 205) as to both issues. Doc. No. 253 (unredacted version appearing on the public docket as No. 258). QuoteWizard filed a timely Objection to the Report and Recommendation, and Mantha filed a Reply. Doc. Nos. 264, 267. The Court now turns to resolve the pending motions de novo and considers the Report and Recommendation, which is also subject to de novo review, in light of the Objection filed.^[2] The factual background, charted in the Report and Recommendation in detail, Doc. No. 253, is not repeated here, and the Court sets out further facts as necessary in the course of discussing the individual claims.

The Court adjudicates the two summary judgment motions applying the familiar legal standard governing summary judgment. The Court turns to QuoteWizard's motion first, and as to this motion, resolves all disputed issues of material fact and draws all reasonable inferences in favor of Mantha. The Court addresses each of QuoteWizard's objections in turn, though in a somewhat different order.

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I. QUOTEWIZARD'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 201)

A. Standing

Standing is foundational to the subject matter jurisdiction of the Court, Lujan v. Defs. of Wildlife, so the Court first considers QuoteWizard's argument that Mantha has not sufficiently established Article III standing. 504 U.S. 555, 561 (1992). Under Article III, “the ‘irreducible constitutional minimum' of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citation omitted). “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 341. “Although tangible injuries are perhaps easier to recognize, ” the Supreme Court has “confirmed in many of [its] previous cases that intangible injuries can nevertheless be concrete.” Id. at 340.

QuoteWizard contends Mantha failed to establish injury-in-fact for purposes of summary judgment. Doc. No. 264 at 12-13. QuoteWizard is wrong. The undisputed evidence establishes that QuoteWizard sent to Mantha's wireless phone number a series of text messages. See, e.g., Doc. No. 210-14 ¶ 7. Mantha in a sworn declaration stated he “find[s] unsolicited telemarketing irritating and a violation of [his] privacy rights[, ]”^[3] and that he listed his number on the DNC Registry to alert “telemarketers that [he] was not interested in their calls or their goods or services.” Id. ¶¶ 9-10. These statements appear in his declaration immediately after he stated that he received text messages from QuoteWizard on his cellular phone number listed on the

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DNC Registry and that he “did not consent to receive these text messages.” Id. ¶¶ 7-8. QuoteWizard asserts that these statements fail to show injury-in-fact because Mantha did not say that “QuoteWizard's text messages caused him any specific harm or injury whatsoever.” Doc. No. 264 at 13 (emphasis in original). Even without the benefit of the summary judgment standard, Mantha's declaration, fairly read, states that Mantha found QuoteWizard's text messages irritating and an invasion of his privacy, as he finds all such unsolicited text messages. Of course, drawing all reasonable inferences in Mantha's favor as the law requires in determining QuoteWizard's motion, the declaration establishes injury-in-fact. QuoteWizard's Objection (Doc. No. 264) to the recommendation that Mantha established Article III standing is OVERRULED, and the Court ADOPTS Chief Judge Kelley's recommendation on this issue.^[4]

Next, QuoteWizard contends that Mantha failed to establish prudential standing. “In addition to these Article III prerequisites, prudential concerns ordinarily require a plaintiff to show that his claim is premised on his own legal rights (as opposed to those of a third party), that his claim is not merely a generalized grievance, and that it falls within the zone of interests protected by the law invoked.” Pagan v. Calderon, 448 F.3d 16, 27 (1st Cir. 2006). “These

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prudential considerations, though important, are not as inexorable as their Article III counterparts.” Id.

QuoteWizard argues on this issue that “when Mantha received the initial text message from QuoteWizard, he admittedly had but one thing on his mind: setting QuoteWizard up for liability.” Doc. No. 264 at 16. QuoteWizard then proceeds to make arguments from how Mantha did or did not respond to the initial and later text messages concluding that Mantha “manufactured his TCPA claim in real-time with the help of an experienced TCPA claimant and his eventual attorney.” Id. at 17 n.9. Drawing all reasonable inferences in Mantha's favor here as the law requires, he has established prudential standing for at least two reasons: First, the initial unsolicited text messages, see supra note 3, that Mantha received on his cellular number listed on the DNC Registry gave rise to Article III standing. Second, that in responding to this allegedly illegal act he consulted with others more experienced in the law to preserve a claim in response to QuoteWizard's act reflects a “measure of common sense.” Doc. No. 264 at 17. These reasons demonstrate that Mantha alleged a particularized and specific harm that falls within the “zone of interests” protected by the TCPA. See Pagan, 448 F.3d at 27.

Therefore, the Court OVERRULES QuoteWizard's Objection (Doc. No. 264) to the determination of prudential standing and ADOPTS the finding in the Report and Recommendation (Doc. No. 253) that Mantha established prudential standing. Insofar as QuoteWizard argues Mantha is outside the protection of the statute, the Court addresses that argument later in this Order.

B. DNC Protection of Cellular Phone Numbers

In Count II Mantha asserts a claim for a violation of the TCPA which prohibits “any person from making or transmitting a telephone solicitation to the telephone number of any

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subscriber included in such database[.]” 47 U.S.C. § 277(c)(3)(F). The Federal Communications Commission (“FCC”) created this database at the direction of Congress, id. at (c)(3), to “protect residential telephone subscribers' privacy rights to avoid receiving telephone solicitations to which they object.” Id. at (c)(1). The statute delegates authority to the FCC to implement these provisions and promulgate appropriate regulations. See, e.g., id. at (c)(1)-(4). The FCC then established a national DNC Registry for “residential telephone subscriber[s].” 47 C.F.R. § 64.1200(c)(2).

Chief Judge Kelley concluded that the TCPA's DNC protections apply to cellular phone numbers, Doc. No. 253 at 8-9, and QuoteWizard contends Chief Judge Kelley erred in so concluding. Doc. No. 264 at 2. The Court rejects this contention for several reasons.

First, the Court, as always, starts with the text of the statute. It provides one type of protection for “residential telephone subscribers.” 47 U.S.C. § 277(c)(1), (c)(3)(F). Congress did not expressly define that term. Canons of statutory construction direct the Court to give the term its plain and ordinary meaning. United States v. Gordon, 875 F.3d 26, 33 (1st Cir. 2017) (describing that “[t]o the extent that Congress chose words that it did not define, we assume those words ‘carry their plain and ordinary meaning.'”) (citation omitted). The word “residential” is defined as “used as a residence or by residents, ” with residence being defined as “the act or fact of dwelling in a place for some time, ” and resident as “living in a place for some length of time.”^[5]

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Notably, the term describes certain attributes-residential, telephone, and subscriber. This stands in contrast with other terms used in the statute which by their nature are technical- “telephone facsimile machine” or “cellular telephone service” for example. See, e.g., 47 U.S.C. § 227 (d)(2), (b)(2)(c). Nothing in the text of the statute at issue here exclusively prevents a “residential telephone subscriber” from including a wireless or cellular telephone number. For these reasons, QuoteWizard's contention that the statute divides cellular phones and residential phones into two discrete and exclusive worlds is unpersuasive; it simply runs counter to the text enacted by Congress. Instead, the Court determines that “residential telephone subscriber” is a functional term not tethered to a particular technology; it encompasses those telephone services fitting the ordinary meaning of that term. Indeed, the technical language cited by QuoteWizard demonstrates...