McDermet v. DirecTV, LLC
| Decision Date | 21 January 2021 |
| Docket Number | Civil Action No. 19-11322-FDS |
| Parties | WILLIAM MCDERMET, Plaintiff, v. DIRECTV, LLC, and THE DIRECTV GROUP, INC., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANTS' MOTION TO STRIKE
This is a lawsuit under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. Plaintiff William McDermet alleges that defendants DirecTV, LLC, and The DirecTV Group, Inc., or their agents made telemarketing calls to him that violated the TCPA and Massachusetts law. McDermet, who is an attorney, is proceeding pro se.
The parties have filed cross-motions for summary judgment. Defendants have also moved to strike portions of McDermet's statement of facts and several attached exhibits. For the following reasons, defendants' motion to strike will be granted in part and denied in part; defendants' motion for summary judgment will be granted; and plaintiff's motion for summary judgment will be denied.
William McDermet is a resident of Massachusetts and an attorney. (See Pl. SF at 8; Pl. Mem., Ex. 1 ("McDermet Aff.") at 2). He has two phone numbers: a residential landline and a cellular line. (McDermet Aff. ¶ 1). He registered his landline with the National Do Not Call Registry in 2008 and his cell phone with the registry in 2010. (Id.).
DirecTV, LLC provides satellite television services. (Defs. Mem., Ex. 1 ("Haley Decl.") ¶ 5). The DirecTV Group, Inc. is "a holding company in the chain of ownership for" DirecTV, LLC; it does not enter into contracts with any customers or provide any television services to them. (Defs. Mem., Ex. 10 ("Phillips Decl.") ¶ 4).1
McDermet alleges that between February 2018 and July 2019 he received a total of 57 phone calls from telemarketers seeking to sell him satellite television services. (McDermet Aff. ¶ 3). He alleges that he received 28 of those calls on his cell phone and 29 on his landline. (Pl. SF ¶¶ 2-3). He further alleges that he recorded the calls and had transcripts of the recordings prepared by a transcription service. (McDermet Aff. ¶ 5).2 He has submitted those transcripts as exhibits in support of his motion. (See Pl. Mem., Exs. 3-59).
Several of the calls allegedly began with a prerecorded message. (McDermet Aff. ¶ 6). McDermet also alleges that "during some calls, [he] attempted to engage the caller, who did not respond, which evidences the fact that [it] was a recorded voice." (Id.). Similarly, the transcripts for other calls indicate that the caller began with a long message and then responded as if McDermet had spoken, even though he remained silent. (See, e.g., Pl. Mem., Exs. 3, 7).
McDermet further alleges that nearly all of the calls came from "spoofed numbers," meaning that he was unable to call back the number that appeared on his caller ID. (Defs. Mem., Ex. 3 ("McDermet Dep.") at 53).
On some of the calls, McDermet gave out fake names when the callers asked him for personal information. (See, e.g., Pl. Mem., Ex. 34 ("Gary Marks")). He later received letters from DirecTV addressed to those fake names. (See, e.g., Pl. Mem., Ex. 60 ("Gary Marks")).
On many of the calls, McDermet asked the caller for his or her company's name and/or address. (See, e.g., Pl. Mem., Exs. 5, 8, 9, 12). Sometimes, the caller did not respond to the question. (See, e.g., Pl. Mem., Exs. 5, 8). On other occasions, the callers said they represented other companies that are not parties to this lawsuit, such as Charter Spectrum, "Satellite Television Service(s)," or "TV For Less." (See, e.g., Pl. Mem., Exs. 8, 12, 14). Several times, the callers stated that they were calling "from DirecTV." (See, e.g., Pl. Mem., Exs. 4, 13, 15).
DirecTV has hired several companies to telemarket its services to consumers. (Haley Decl. ¶ 6). It provides those authorized telemarketers with contact information for potential customers. (See Defs. Mem., Ex. 2 ("Bailey Aff.") ¶ 2). It keeps searchable records of that contact information going back two years. (Id.). According to DirecTV, as of April 13, 2020, those records indicated that neither of McDermet's phone numbers "were included in any of the searchable authorized telemarketing lists." (See id. ¶ 3).
Separately, DirecTV has contracts with "thousands" of independent third-party retailers, which it refers to as "authorized retailers." (Haley Decl. ¶ 6).3 Authorized retailers "solicit subscriptions from residential and commercial customers in exchange for commissions and other compensation." (Id.). DirecTV keeps records of when they perform certain activities with a customer, such as checking his or her credit or placing an order. . A DirecTV employee searched those records for any such activities associated with McDermet, as well as the fake names he gave out. (Id. ¶ 9). That search showed that McDermet had interacted with four of DirecTV's authorized retailers: Rogerio Diaspolicarpo, Whitesign Systems, Nuvision Communications, and AVD Solutions. .
Each of those four authorized retailers marketed DirecTV's services under a contract with the company. (See Haley Decl., Exs. B-E). Each contract provides that the authorized retailer and DirecTV are "independent contracting parties," and that each company's employees or agents "are not employees or agents of the other party." (Haley Decl., Exs. B-E at § 2.1.1).
The contracts also include a "Marketing Tactics Dealer Policy Statement." (See, e.g., Haley Decl., Ex. B at Schedule 1). That statement requires them to "prominently identify themselves in all marketing" and prohibits them from "hold[ing] themselves out as an agent of AT&T or any AT&T Affiliate, including [DirecTV]." (See, e.g., id.). It also describes the federal laws that govern telemarketing and prohibits the authorized retailers "from outbound telemarketing of [DirecTV's] [s]ervices except via a manually placed return call or text message in response to a direct inquiry from a customer" that they "are able to substantiate." (See, e.g., id.). It further provides that "[t]he equipment used to place manual return calls" must "require some sort of human intervention to place/launch the call" and only allow one call at a time. (See, e.g., id.). And it provides that the equipment may not, now or in the future, have the "capacity to store and produce numbers and dial those numbers at random, in sequential order or from a database of numbers." (See, e.g., id.).
DirecTV has submitted affidavits from each of its account managers who supervised the relationships with Diaspolicarpo, Whitesign Systems, Nuvision, and AVD Solutions. (See Defs. Mem., Exs. 4 ("Salerno Aff."), 5 ("Loaiza Aff."), 6 ("Charles Aff.")). Each states that the authorized retailers were "paid commissions" rather than paid "based on the time they spen[t] marketing [DirecTV] products and services." (Salerno Aff. ¶ 5; Loaiza Aff. ¶ 5; Charles Aff. ¶ 5). They also state that each authorized retailer "had other companies whose products [they] sold." (Salerno Aff. ¶ 6; Loaiza Aff. ¶ 6; Charles Aff. ¶ 6). In addition, they represent that DirecTV employees did not "oversee" or "manag[e] the day-to-day business" of the authorized retailers, "control or oversee any calls" they made, require them to engage in any specific marketing, provide them with any telephone numbers to call, or "control the hours or days" that their employees worked. (Salerno Aff. ¶¶ 8-15; Loaiza Aff. ¶¶ 8-15; Charles Aff. ¶¶ 8-15).
On February 11, 2019, McDermet sent a demand letter to DirecTV. (Defs. Mem., Ex. 7). In that letter, he alleged that he had received several unsolicited phone calls from organizations offering to sell him satellite television services. (Id.). He stated that "[d]uring some of these calls" he had been "transferred to a person who indicated they were with" DirecTV. (Id.). He alleged that DirecTV had violated both 47 U.S.C. § 227 and Mass. Gen. Laws ch. 159C. (Id.). He offered to settle and stated that if he did not receive a settlement offer within 32 days, he would file suit. (Id.). The letter did not expressly mention Mass. Gen. Laws ch. 93A. (See id.; McDermet Dep. at 90).
On May 17, 2019, McDermet filed this action in Massachusetts Superior Court. On June 13, 2019, defendants removed the action to this Court, alleging federal-question jurisdiction under 28 U.S.C. § 1331. An amended complaint was filed on July 14, 2019. It alleges two counts against DirecTV and the DirecTV Group: violations of the TCPA, 47 U.S.C. § 227 (Count 1); and violations of Mass. Gen. Laws chs. 159C and 93A (Count 2). (Am. Compl. ¶¶ 31-40).
On April 27, 2020, both parties moved for summary judgment on a variety of issues. On May 18, 2020, defendants moved to strike several exhibits that McDermet had filed in support of his motion for summary judgment along with portions of his statement of facts.
The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). Summary judgment shall be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue is "one that must be decided at trial because the evidence, viewed in the light most flattering to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citation omitted). In evaluating a summary judgment motion, the court indulges all reasonable inferences in favor of the nonmoving party. See O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). When "a properly supported motion for summary judgment is made, the adverse party must set forth...
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