Worsham v. Discount Power, Inc

Decision Date01 December 2021
Docket NumberCIVIL ACTION RDB-20-0008
PartiesMICHAEL C. WORSHAM, Plaintiff, v. DISCOUNT POWER, INC., Defendant.
CourtU.S. District Court — District of Maryland

MICHAEL C. WORSHAM, Plaintiff,
v.
DISCOUNT POWER, INC., Defendant.

CIVIL ACTION No. RDB-20-0008

United States District Court, D. Maryland

December 1, 2021


MEMORANDUM ORDER

Richard D. Bennett United States District Judge

In this case, pro se Plaintiff Michael C. Worsham (“Worsham”) claims that Defendant Discount Power, Inc. (“Discount Power”) violated state and federal telephone consumer protection statutes by placing repeated calls to his residential phone with an automatic dialer. (Am. Compl. ¶¶ 1–6, 12, ECF No. 54.) On July 29, 2021, this Court entered a Memorandum Opinion and Order granting in part and denying in part Discount Power’s Motion to Dismiss. (ECF Nos. 74, 75.) Specifically, this Court dismissed with prejudice all Counts of the Amended Complaint other than Counts 1 and 5, which relate to the presence of Worsham’s residential number on the national Do Not Call list. (ECF No. 75.) The case has proceeded into discovery on those Counts. (See Scheduling Order, ECF No. 76.)

Now pending is Worsham’s Motion for Reconsideration, in which he seeks to reinstate the fifteen Counts of his Amended Complaint that were dismissed with prejudice on July 29, 2021. (ECF No. 80.) The parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2021). For the reasons stated herein, Worsham’s Motion for Reconsideration is GRANTED IN PART and DENIED IN PART. Specifically, this motion

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is GRANTED with regards to Counts 2 and 6 of the Amended Complaint, and those Counts are reinstated. This Motion is DENIED with respect to all remaining Counts.

BACKGROUND

The factual and procedural background of this case was discussed at length in this Court’s July 29, 2021 Memorandum Opinion. See Worsham v. Discount Power, No. RDB-20-0008, 2021 WL 3212589, at **1–2 (D. Md. Jul. 29, 2021). (Mem. Op., ECF No. 74.) Plaintiff Michael C. Worsham (“Worsham”) alleges that Defendant Discount Power, Inc. (“Discount Power”) violated assorted provisions of the federal Telephone Consumer Protection Act (“TCPA”) and the Maryland Telephone Consumer Protection Act (“MTCPA”) by placing seven calls to his landline in a five-day period during November 2019. (Mem. Op. 1.) Worsham claims that Discount Power conspired with a telemarketing call center and other entities to use an automatic telephone dialing system to call consumers-including individuals with numbers on the National DNC List-in order to solicit purchases of energy-related products and services. (Id. at 2.) He further claims Defendant used robocalls and “lead generating telemarketers” to prevent consumers from discerning its identity, and to subvert the requirements of the TCPA and MTCPA. (Id. at 2–3.)

Worsham’s 17-count Complaint (ECF No. 3), filed in the Circuit Court for Harford County, Maryland, sought $84,500 in damages, attorney’s fees, costs, and injunctive relief for four putative violations of the federal TCPA (Counts 1-4), and 13 violations of the MTCPA (Counts 5-17). Id. (See Compl. ¶¶ 72, 76, ECF No. 3.) On January 2, 2020, Discount Power removed the case to this Court on the basis of diversity of citizenship, (ECF No. 1), and on January 6, 2021, this Court granted Discount Power’s first Motion to Dismiss, dismissing the

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Complaint with prejudice. (ECF Nos. 47, 48.) On February 3, 2021, Worsham moved to Alter or Amend this Court’s Judgment and Order, insisting that the Court took judicial notice of a PACER docket entry that incorrectly listed his telephone number as a business number- rather than a residential number, as required by his claims. (ECF No. 49.) This Court granted that motion, converting the dismissal to one without prejudice, and affording Worsham the opportunity to amend his Complaint. (ECF No. 53.)

Worsham filed his Amended Complaint on May 13, 2021, incorporating additional information regarding his telephone number. (ECF No. 54.) Worsham’s Amended Complaint reduced his claimed damages from $84,500 to $77,000-$ 40,500 in statutory damages for the alleged TCPA violations, and $ 36,500 in statutory damages for the alleged MTCPA violations. (Id. ¶¶ 91, 95.) Discount Power responded with a second Motion to Dismiss. (ECF No. 64.) By Memorandum Opinion and Order dated July 29, 2021, this Court granted that motion as to Counts 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17, and dismissed those Counts with prejudice. (Mem. Op. 1–2.) This Court denied that motion as to Counts 1 and 5, concluding that Worsham’s Amended Complaint plausibly pled that his telephone number is residential; that his number was on the National Do-Not-Call List; and that he did not register his number as belonging to a law firm. (Id. at 1–2; 7–8.) Through the pending Motion for Reconsideration (ECF No. 80), Worsham asks this Court to reconsider the portion of its July 29, 2021 opinion dismissing the other Counts of his Amended Complaint.

STANDARD OF REVIEW

Two rules enable a court to reconsider a final judgment: Rule 59(e) authorizes a district court to alter, amend, or vacate a prior judgment, while Rule 60 provides for relief from

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judgment. See Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 470 n.4 (4th Cir. 2011), cert. denied, 132 S.Ct. 115 (2011). As this Court explained in Cross v. Fleet Reserve Ass’n Pension Plan, WDQ-05-0001, 2010 WL 3609530, at *2 (D. Md. Sept. 14, 2010):

A party may move to alter or amend a judgment under Rule 59(e), or for relief from a judgment under Rule 60(b) See Fed. R. Civ. P. 59(e) & 60(b). A motion to alter or amend filed within 28 days of the judgment is analyzed under Rule 59(e); if the motion is filed later, Rule 60(b) controls. See Fed. R. Civ. P. 59(e); MLC Auto., LLC v. Town of S. Pines, 532 F.3d 269, 280 (4th Cir. 2008); In re Burnley, 988 F.2d 1, 2-3 (4th Cir 1992)

(footnote omitted). In either case, motions for reconsideration are “an extraordinary remedy which should be used sparingly.” TFWS, Inc. v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009); Peckey v. Bank of Am., No. RDB-14-433, 2016 WL 6951940, at *1 (D. Md. Nov. 28, 2016); accord Siple v. First Franklin Fin. Corp., No. RDB-14-2841, 2015 WL 6163791, at *2 (D. Md. Oct. 19, 2015) (“Where a party seeks reconsideration on the basis of manifest error, the earlier decision cannot be ‘just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” (quoting TFWS, 572 F.3d at 194)).

Worsham stylizes the pending Motion for Reconsideration as one under Rule 60(b).[1] However, Worsham filed his motion on August 12, 2021, fourteen days after this Court’s July 29, 2021 Order granting Discount Power’s Motion to Dismiss. (ECF No. 24.) Accordingly, Rule 59(e) governs this Court’s analysis. See, e.g., Knott v. Wedgwood, DKC-13-2486, 2014 WL 4660811, at *2 (D. Md. Sept. 11, 2014) (“Although Plaintiff purports to bring his motion for

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reconsideration under Rule 60(b)(1), because it was filed within twenty-eight days of entry of the underlying order, it is properly analyzed under Rule 59(e).”).

The United States Court of Appeals for the Fourth Circuit has repeatedly recognized that a final judgment[2] may be amended under Rule 59(e) in only three circumstances...

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