Ott v. Mortg. Investors Corp. of Ohio, Inc., Case No. 3:14–cv–00645–ST.

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Writing for the CourtSTEWART, Magistrate Judge
Citation65 F.Supp.3d 1046
PartiesKelly OTT; Nancy Luebben; and Benjamin Gesler, on behalf of themselves and all others similarly situated, Plaintiffs, v. MORTGAGE INVESTORS CORPORATION OF OHIO, INC., an Ohio corporation also doing business as Mortgage Investors Corporation, Amerigroup Mortgage Corporation, Veterans Information Department and Veterans Home Loans ; William Edwards, individually; Jeffrey Crilley, individually; James Shatz, individually; and John Wesley Bailey III, individually, Defendants.
Docket NumberCase No. 3:14–cv–00645–ST.
Decision Date03 December 2014

65 F.Supp.3d 1046

Kelly OTT; Nancy Luebben; and Benjamin Gesler, on behalf of themselves and all others similarly situated, Plaintiffs
v.
MORTGAGE INVESTORS CORPORATION OF OHIO, INC., an Ohio corporation also doing business as Mortgage Investors Corporation, Amerigroup Mortgage Corporation, Veterans Information Department and Veterans Home Loans ; William Edwards, individually; Jeffrey Crilley, individually; James Shatz, individually; and John Wesley Bailey III, individually, Defendants.

Case No. 3:14–cv–00645–ST.

United States District Court, D. Oregon, Portland Division.

Signed Dec. 3, 2014.


65 F.Supp.3d 1052

Michael D. Daudt, Whitney B. Stark, Beth E. Terrell, Jennifer Rust Murray, Terrell Marshall Daudt & Willie PLLC, Roblin J. Williamson, Williamson and Williams, Seattle, WA, Michael J. Estok, Lindsay Hart, LLP, Portland, OR, for Plaintiff.

John Huh, Lesli C. Esposito, Nicole M. Tadano, Stellman Keehnel, DLA Piper LLP, Philadelphia, PA, for Defendant.

OPINION AND ORDER

STEWART, Magistrate Judge:

INTRODUCTION

Plaintiffs, Kelly Ott, Nancy Luebben, and Benjamin Gesler, filed this class action against defendants for violations of the Telephone Consumer Protection Act, 47 USC § 227 et seq., (“TCPA”), by means of a nation-wide telemarketing scheme targeted at U.S. military veterans. Defendant, Mortgage Investors Corporation of Ohio, Inc. (“MIC”), is a mortgage lending company doing business under several other names and specializing in Interest Rate Reduction Refinance Loans (“IRRRLs”) guaranteed by the U. S Department of Veterans Affairs. The individual defendants are directors, officers and employees of MIC.

The TCPA prohibits using a predictive dialer to make any telephone call for non-emergency purposes to a number assigned to a “cellular telephone service” without the “prior express consent of the called party.” 47 USC § 227(b)(1)(A)(iii). The TCPA also prohibits initiating two or more telephone calls within a 12–month period to a residential telephone line in violation of either the internal do-not-call rules or National Do–Not–Call Registry (“NDNCR”) rules enacted by the Federal Communications Commission (“FCC”). 47 USC § 227(c)(1)-(2) (internal do-not-call lists); 47 USC § 227(c)(3) (NDNCR) ; 47 CFR § 64.1200(c) -(d)(FCC). A person who receives a call in violation of these prohibitions may bring a civil action to recover statutory damages of $500.00 per violation, as well as treble damages and injunctive relief. 47 USC § 227(b)(3), (c)(5)(A)-(C).

Plaintiffs allege that defendants violated the TCPA by: (1) initiating calls through an Automated Telephone Dialing System (“ATDS”) to cellular telephone numbers for non-emergency purposes (First Claim); (2) continuing to make calls to individuals who made “do-not-call requests” (Third Claim); and (3) initiating more than one call within a 12–month period to individuals on the NDNCR (Fifth Claim). Alleging that the violations were “knowing and/or willful,” plaintiffs seek statutory damages up to $500.00 and treble damages up to $1,500.00 for each call that violated the TCPA (Second, Fourth and Sixth Claims).

This court has jurisdiction over the TCPA claims pursuant to 28 USC § 1331. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) (docket # 82).

65 F.Supp.3d 1053

After plaintiffs filed a First Amended Complaint (docket # 19), MIC filed a Motion to Strike Certain Paragraphs (docket # 25) and a Motion to Dismiss Pursuant to the Federal First–to–File Rule (docket # 27). In addition, the individual defendants filed a Motion to Dismiss Pursuant to FRCP 12(b)(2) and (6) (docket # 33), MIC filed a Motion to Strike Class Allegations (docket # 51), and all defendants filed a Motion for Involuntary Dismissal (docket # 57). Later the parties agreed that MIC would withdraw its first two motions, that the remaining three motions would be deemed to address plaintiffs' Second Amended Complaint, and that MIC would join part of the individual defendants' motion to dismiss (dockets # 74). An Order was then entered accordingly (docket # 75), and plaintiffs filed a Second Amended Complaint (docket # 77).

For the reasons set forth below, defendants' motions are denied, except that MIC's motion to strike the class allegations is granted in part.

ALLEGATIONS

I. Plaintiffs

Ott and Luebben are veterans of the United States military, but Gesler is not. Second Amended Complaint, ¶¶ 41, 49, 56. All of them are citizens of Oregon, and all received telemarketing calls from MIC urging them to refinance their home loans. Id., ¶¶ 2–4, 43–45, 5052, 57–59.

MIC called Ott even after he had registered his residential telephone number on the NDNCR and asked MIC to stop calling him. Id., ¶¶ 42–45. MIC called Luebben even after she asked MIC to stop calling her several times. Id., ¶¶ 50–52. Neither Ott nor Luebben had any interest in refinancing, contacted MIC, or otherwise consented to MIC's calls. Id., ¶¶ 46, 48, 53, 55. Ott seeks to represent a class of similarly situated individuals called by MIC after they had registered their telephone numbers on the NDNCR (“National Do–Not–Call Class”).Id., ¶ 66(e)-(f). Luebben seeks to represent a class of consumers called by MIC after they had asked not to be called again (“Internal Do–Not–Call Class”). Id., ¶ 66(c)-(d).

MIC also repeatedly called Gesler's cell phone even after he asked MIC to stop calling him. Id., ¶¶ 57–59. Gesler had no interest in refinancing his home loan, never contacted MIC or otherwise consented to MIC's calls. Id., ¶¶ 60, 62. Gesler seeks to represent a class of similarly situated individuals whom MIC called on their cell phones (“Cell Phone Class”) and the Internal Do–Not–Call Class. Id., ¶ 67(a)-(d).

II. MIC

MIC claims to be the largest U.S. Department of Veteran Affairs home loan refinancer and provides home loan refinancing in 42 states to current and former members of the United States military. Id., ¶¶ 20–21. To increase the volume of its customers, it uses an ATDS, also known as a predictive dialer. Id., ¶ 19. From its offices in Florida, hundreds of telemarketers use written scripts to make unsolicited outbound telephone calls, encouraging consumers to schedule in-home sales appointments with company-affiliated loan officers. Id., ¶¶ 21–22.

Consumers reported receiving dozens of unwanted calls from MIC which repeatedly failed to remove their telephone numbers from its call list upon demand. Id., ¶ 23. According to company training materials, MIC's telemarketers were not authorized to remove consumers' telephone numbers from company call lists and transferred “irate” customers to a manager who would then try to convince the consumer to schedule an appointment.

65 F.Supp.3d 1054

Id., ¶ 24. MIC's telemarketers were trained to attempt to “turn around” consumers who had requested that the company stop calling and, if unsuccessful, were reprimanded. Id. MIC placed more than 5.4 million calls to numbers listed on the NDNCR between February 2, 2009, and July 30, 2012. Id., ¶ 25. Thousands of consumers have filed complaints with the Federal Trade Commission and other agencies regarding the unwanted and harassing telemarketing calls by MIC. Id., ¶ 26.

MIC also made calls using an ATDS to cellular telephones whose owners did not expressly consent to receive such calls, including Gesler. Id., ¶ 27. Consumers continued to receive calls, despite requesting that MIC stop calling, until MIC ceased telemarketing operations in October 2013. Id., ¶ 28. Many of the recipients of these calls did not consent to receive such telephone calls. Id., ¶ 29.

III. Individual Defendants

William Edwards holds the position of MIC's Chairman of the Board (id., ¶ 6); Jeffrey Crilley holds the position of MIC's Chief Executive Officer (id., ¶ 7); James Shatz is MIC's President of Operations and Information Technology (id., ¶ 8); and John Wesley Bailey III is MIC's Chief Corporate Counsel (id., ¶ 9). Plaintiffs allege that all four individual defendants:

30. ... acting alone or in concert with others, had the authority and responsibility to prevent or correct unlawful telemarketing practices of Defendant MIC, and formulated, directed, controlled and participated in the acts and practices of Defendant MIC that violated the TCPA, including the acts and practices set forth in this Complaint.
31. ... directly and personally participated in, ratified, directed and/or authorized the conduct constituting the statutory violations alleged herein.
32. ... personally established, approved, and ratified Defendant MIC's policies and practices, oversaw operations and were directly involved in the business practices that violated the TCPA.
33. ... were all personally and actively involved in managing the operations of Defendant MIC, and did not treat Defendant MIC as a passive investment....
...

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41 practice notes
  • Mohon v. Agentra LLC, No. CIV 18-0915 JB\KRS
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 24, 2019
    ...Response)(citing Breslow v. Wells Fargo Bank, 857 F. Supp. 2d 1316, 1319 (S.D. Fla. 2012) (Scola, Jr., J.); Ott v. Mortg. Inv'rs Corp, 65 F. Supp. 3d 1046, 1059-60 (D. Or. 2014) (Stewart, M.J.)). Mohon also argues that her "Complaint also amply gives notice of multiple ‘do not call’ or Subs......
  • Fed. Trade Comm'n v. Educare Ctr. Servs., Inc., EP–19–CV–196–KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • October 22, 2019
    ...sends a message into the forum state by targeting a phone number in that forum."); Ott v. Mortg. Inv'rs Corp. of Ohio, Inc. , 65 F. Supp. 3d 1046, 1057 (D. Or. 2014) ("[Defendants] reasonably should have known that telemarketing to Oregon telephone numbers would cause harm to persons in Ore......
  • Moser v. Health Ins. Innovations, Inc., CASE NO. 3:17-cv-1127-WQH-KSC
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • January 5, 2018
    ...4, 2014); Luna v. Shac, LLC, No. C14-00607 HRL, 2014 WL 3421514, at *3 (N.D. Cal. July 14, 2014); Ott v. Mortg. Inv'rs Corp. of Ohio, 65 F. Supp. 3d 1046, 1057 (D. Or. 2014). A. Nationwide The Nationwide Defendants contend that the Court does not have personal jurisdiction over Nationwide. ......
  • Margulis v. Generation Life Ins. Co., Case No. 4:14–CV–1462 SNLJ.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 19, 2015
    ...such detail at the pleading stage in order to provide adequate notice to a TCPA defendant.” Ott v. Mortgage Investors Corp. of Ohio, 65 F.Supp.3d 1046, 1058, No. 3:14–CV–00645–ST, 2014 WL 6851964, at *8 (D.Or. Dec. 3, 2014) (citing Crawford v. Target Corp., No. 3:14–CV–0090–B, 2014 WL 58474......
  • Request a trial to view additional results
41 cases
  • Mohon v. Agentra LLC, No. CIV 18-0915 JB\KRS
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 24, 2019
    ...Response)(citing Breslow v. Wells Fargo Bank, 857 F. Supp. 2d 1316, 1319 (S.D. Fla. 2012) (Scola, Jr., J.); Ott v. Mortg. Inv'rs Corp, 65 F. Supp. 3d 1046, 1059-60 (D. Or. 2014) (Stewart, M.J.)). Mohon also argues that her "Complaint also amply gives notice of multiple ‘do not call’ or Subs......
  • Fed. Trade Comm'n v. Educare Ctr. Servs., Inc., EP–19–CV–196–KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • October 22, 2019
    ...sends a message into the forum state by targeting a phone number in that forum."); Ott v. Mortg. Inv'rs Corp. of Ohio, Inc. , 65 F. Supp. 3d 1046, 1057 (D. Or. 2014) ("[Defendants] reasonably should have known that telemarketing to Oregon telephone numbers would cause harm to persons in Ore......
  • Moser v. Health Ins. Innovations, Inc., CASE NO. 3:17-cv-1127-WQH-KSC
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • January 5, 2018
    ...4, 2014); Luna v. Shac, LLC, No. C14-00607 HRL, 2014 WL 3421514, at *3 (N.D. Cal. July 14, 2014); Ott v. Mortg. Inv'rs Corp. of Ohio, 65 F. Supp. 3d 1046, 1057 (D. Or. 2014). A. Nationwide The Nationwide Defendants contend that the Court does not have personal jurisdiction over Nationwide. ......
  • Margulis v. Generation Life Ins. Co., Case No. 4:14–CV–1462 SNLJ.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 19, 2015
    ...such detail at the pleading stage in order to provide adequate notice to a TCPA defendant.” Ott v. Mortgage Investors Corp. of Ohio, 65 F.Supp.3d 1046, 1058, No. 3:14–CV–00645–ST, 2014 WL 6851964, at *8 (D.Or. Dec. 3, 2014) (citing Crawford v. Target Corp., No. 3:14–CV–0090–B, 2014 WL 58474......
  • Request a trial to view additional results

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