McDermet v. John C. Heath, Attorney At Law, PLLC
| Decision Date | 30 January 2018 |
| Docket Number | Civil Action No. 17-12327-FDS |
| Parties | WILLIAM MCDERMET, Plaintiff, v. JOHN C. HEATH, ATTORNEY AT LAW, PLLC d/b/a LEXINGTON LAW FIRM, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER ON DEFENDANT'S PARTIAL MOTION TO DISMISS
This is an action arising from alleged solicitation calls made by defendant to plaintiff's cell phone. The pro se complaint contends that defendant violated various federal and state telemarketing and consumer protection statutes. Defendant has moved to dismiss four subclaims for failure to state a claim upon which relief can be granted. For the reasons stated below, the motion will be granted in part and denied in part.
The facts are set forth as described in the complaint.
William McDermet is a resident of Ipswich, Massachusetts. (Compl. ¶ 2). He registered both his home landline phone number and cell phone number on the state and federal do-not-call registries. (Id. ¶ 7). It appears that he registered the landline number on August 16, 2003, and the cell phone number on January 28, 2010. (Id.).1
Defendant or its agent allegedly called McDermet on his cell phone on seven separate occasions. (Id. ¶ 8). The calls were made on six dates: December 27, 2016 (1:29 p.m. and 1:42 p.m.), and January 25, February 23, March 7, March 9, and April 19, 2017. (Id.). When McDermet first picked up his phone, he heard a mechanical or recorded voice asking whether he needed help with credit repair. (Id. ¶ 9).
During the two calls made in March 2017, McDermet indicated to the mechanical voice that he was interested in credit repair services. (Id. ¶ 10). At that point, he was transferred to a live person. (Id.). In both instances, the person on the other end of the line did not know McDermet's name and stated they were with the "Lexington Law Firm" in Utah. (Id. ¶¶ 10-11). During the March 9 phone call, McDermet requested a physical address for defendant. (Id. ¶ 10). He was then transferred to a supervisor, who provided a P.O. Box address. (Id.). McDermet reiterated his request for a physical address, and soon afterwards the line went dead. (Id.).
On December 27, 2016, and February 23 and March 9, 2017, McDermet's caller identification function showed numbers that could not be redialed. (Id. ¶ 12). The numbers shown on January 25 and March 7, 2017, when redialed, led to entities unrelated to the Lexington Law Firm. (Id.).
The complaint further alleges that McDermet never gave defendant or its agents permission to contact him. (Id. ¶ 13). In addition, on March 12, 2017, he sent a letter by certified mail to defendant demanding that it cease calling him and provide the name of any"lead generator" used to initiate the six calls. (Id. ¶ 14). He received a reply from attorney Laura Tanner on April 19, 2017, acknowledging receipt of the demand letter. (Id. ¶ 15). The reply disavowed liability. (Id.).
The same day he received the letter, McDermet received another call using a mechanical voice purporting to offer to help with credit repair. (Id. ¶ 16). He provided the recording a fictitious name and was again transferred to an entity identifying itself as the Lexington Law Firm. (Id.). Upon speaking to a live person, he again stated that defendant was violating federal and state laws. (Id.). The number on his caller identification function could not be redialed. (Id.).
The complaint was originally filed in the Essex County Superior Court on October 27, 2017. It alleges two counts against defendant, and embedded within both counts are multiple subclaims. Count 1 alleges violation of federal do-not-call laws and regulations. It alleges that defendant violated two subsections of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227—(b)(1)(A)(iii) and (b)(1)(B). It further alleges that defendant violated the Truth in Caller ID Act ("TCIA"), 47 U.S.C. § 227(e)(1), the Telemarketing and Consumer Fraud and Abuse Prevention Act ("TCFAPA"), 15 U.S.C. § 6101 et seq., and the Federal Trade Commission ("FTC") Telemarketing Sales Rule, 16 C.F.R. § 310.4. Count 2 alleges that defendant violated the state consumer protection statute, Mass. Gen. Laws ch. 93A, and the state do-not-call statute, Mass. Gen. Laws ch. 159C.
Defendant timely removed the action to federal court on November 27, 2017. Defendant has since moved to dismiss five subclaims: those brought under (1) section 227(b)(1)(B) of the TCPA, (2) the TCIA, (3) the TCFAPA, (4) FTC Telemarketing Sales Rule, and (5) Chapter 93Afor failure to state a claim.
On a motion to dismiss, the court "must assume the truth of all well-plead[ed] facts and give . . . plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the "[f]actual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (citations omitted). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the complaint fails to set forth "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
A document filed by a pro se party "is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted); see also Fed. R. Civ. P. 8(e) (). However, while pro se complaints "are accorded 'an extra degree of solicitude' . . . even a pro se plaintiff is required to 'set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery undersome actionable legal theory.'" Wright v. Town of Southbridge, 2009 WL 415506, at *2 (D. Mass. Jan. 15, 2009) (quoting Adams v. Stephenson, 1997 WL 351633, at *1 (1st Cir. June 23, 1997)).
Defendant contends that the subclaim under section 227(b)(1)(B) of the TCPA should be dismissed because that statutory provision covers only residential landlines, and the complaint only alleges that defendant called plaintiff's cell phone. "Congress passed the TCPA to protect individual consumers from receiving intrusive and unwanted calls." Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013) (citing Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012)). The TCPA, in relevant part, makes it unlawful for any person "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes . . . ." 47 U.S.C. § 227(b)(1)(B).
Plaintiff, in his opposition memorandum, concedes that his subclaim under § 227(b)(1)(B) should be dismissed. See Mem. in Opp. at 3 (). Therefore, the subclaim for violation of § 227(b)(1)(B) will be dismissed.
Defendant next contends that the subclaim for violation of the TCIA should be dismissed because that statute does not provide a private right of action. The TCIA makes it "unlawful for any person within the United States, in connection with any telecommunications service or IP-enabled voice service, to cause any caller identification service to knowingly transmit misleading or inaccurate caller information with the intent to defraud . . . ." 47 U.S.C. § 227(e)(1). Thestatute provides for civil forfeiture penalties, § 227(e)(5)(A), and criminal fines for persons who "willfully and knowingly" violate the law, § 227(e)(5)(B). However, section 227(e)(6) specifies that the "chief legal officer of a State . . . may bring a civil action [under this act], as parens patriae, on behalf of the residents of that state." Accordingly, it is clear that Congress did not create a private right of action to enforce the TCIA. See, e.g., Free Conferencing Corp. v. Comcast Corp., 2016 WL 7637664, at *7 (C.D. Cal. May 31, 2016); Clark v. Avatar Techs. Phl Inc., 2014 WL 1342033, at 3-4 (S.D. Tex. Apr. 3, 2014).
In his opposition, plaintiff cites subsection 227(b)(3) of the TCPA in support of his contention that "Congress provided for a private right of action" for violation of the TCIA. (Mem. in Opp. at 3-4). However, while both the TCPA and TCIA are codified at 47 U.S.C. § 227, the TCIA is "codified entirely within [section] 227(e)." Teltech Sys., Inc. v. Bryant, 702 F.3d 232, 234 (5th Cir. 2012). Therefore, it is improper to apply the language of subsection 227(b)(3), which does grant a private right of action, to the TCIA, which does not. The subclaim for violation of § 227(e) will therefore be dismissed.
Defendant next contends that the subclaims for violation of the TCFAPA and the FTC's Telemarketing Sales Rule should be dismissed because neither provision provides for a private right of action in this situation. The TCFAPA charges the Federal Trade Commission with promulgating "rules prohibiting deceptive telemarketing acts...
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