Worsham v. Ehrlich

• Decision Date: 15 September 2008
• Docket Number: No. 1442, September Term, 2007.,1442, September Term, 2007.
• Citation: 957 A.2d 161,181 Md. App. 711
• Parties: Michael WORSHAM v. Robert EHRLICH, et al.
• Court: Court of Special Appeals of Maryland

957 A.2d 161

181 Md. App. 711

Michael WORSHAM v. Robert EHRLICH, et al.

No. 1442, September Term, 2007.

Court of Special Appeals of Maryland.

September 15, 2008.

Michael C. Workman, Forest Hill, for Appellant.

Rachel B. Goldman, Washington, DC, Dilip B. Paliath, Towson, William E. Seekford, Bel Air. (Nancy M. O'Connor, Bracewell & Giuliani, LLP on the brief; Washington, DC) (Samuel M. Grant, Preller & Preller on the brief; Towson) (H. Wayne Norman, Jr. on the brief; Bel Air), for Appellee.

Panel: KRAUSER, C.J., JAMES R. EYLER, ROBERT L. KARWACKI, (Ret., specially assigned), JJ.

JAMES R. EYLER, Judge.

Michael Worsham, appellant, appeals from the grant of various motions to dismiss¹ his amended complaint in favor of Robert Ehrlich ("Ehrlich"), James Reilly ("Reilly"), David Craig ("Craig"), and Rudolph Giuliani ("Giuliani"), appellees, in the Circuit Court for Harford County. The amended complaint alleged violations of the federal Telephone Consumer Protection Act, 47 U.S.C. § 227, et. seq. ("TCPA"), and the Maryland Telephone Consumer Protection Act, Maryland Code (2005 Repl.Vol.), § 14-3201 of the Commercial Law Article ("MDTCPA"), and sought damages and injunctive relief. The alleged violations of the TCPA and the MDTCPA were based upon prerecorded political campaign calls soliciting votes, made by or on behalf of appellees, which calls failed to contain the telephone number of the business or entity responsible for the call, in violation of the TCPA. On appeal, appellant contends that the circuit court erred in (1) dismissing the suit because there was no dispute that the calls were made, and that they failed to include the required disclosure, and (2) granting appellee Giuliani's motion to dismiss without holding a hearing pursuant to Maryland Rule 2-311(f), after one was requested by appellant. We shall affirm.

Procedural and Factual Background

On November 6, 2006, appellant filed a complaint in the circuit court against Ehrlich, Kristen Cox,² Reilly, Craig, and Common Sense Ohio. The complaint alleged that during October and November of 2006, the various defendants, each of whom were at that time candidates for public office, or were promoting candidates for public office, initiated unsolicited prerecorded telephone calls to appellant's residence on their behalf as part of their political campaigns. The caller ID system connected with appellant's telephone did not disclose the point of origin of several of the calls, and none of the calls contained the telephone number of the person or entity responsible for the call. Appellant sought statutory damages under both the TCPA and the MDTCPA, as well as injunctive relief under the TCPA.

On December 6, 2006, Reilly and Craig filed motions to dismiss. Appellant responded on December 27, 2006.

On January 9, 2007, appellant filed an amended complaint, adding Giuliani and Freeeats.com, Inc. as defendants, and attached as an exhibit Verizon "call trace" phone records from the "Verizon Unlawful Call Center," which indicated the phone numbers from which the various calls were initiated.

On January 16, 2007, appellant filed a motion for partial summary judgment, and again attached the aforementioned exhibit, and in addition attached an "Affidavit of Michael Worsham." On January 29, 2007, appellee Ehrlich filed an opposition to that motion, as well as his own motion to dismiss.

On March 22, 2007, appellant filed a notice of dismissal with prejudice as to Common Sense Ohio and Freeeats.com, Inc.

On April 6, 2007, Craig and Reilly filed a supplemental motion to dismiss, and on April 7, 2007, appellant filed a response.

On April 16, 2007, appellant filed another motion for summary judgment.

On May 1, 2007, appellee Giuliani filed a motion to dismiss the amended complaint. The same day, a hearing was held on Ehrlich, Craig, and Reilly's motions to dismiss, and on appellant's motion for partial summary judgment. At the hearing, appellant conceded that the calls in question were political in nature, and not commercial.

On May 16, 2007, appellant responded to Giuliani's motion to dismiss, and requested a hearing on the motion. On June 18, 2007, appellant filed a second request for hearing.

On June 25, 2007, the court issued a memorandum opinion and order granting appellees' motions to dismiss.³ The court implicitly acknowledged that it was considering matters outside of the pleadings, i.e., the exhibits to appellant's motion for partial summary judgment, when it set forth the law relating to the conversion of a motion to dismiss to a motion for summary judgment.

The court, in its well-reasoned opinion, addressed the various arguments made by the parties and provided numerous alternative grounds for dismissal. The court ruled that it had personal jurisdiction over appellee Guiliani; that injunctive relief was not available because the political campaigns were over, further calls were unlikely, and appellant sustained no irreparable harm; that it had no subject matter jurisdiction as to appellees Guiliani, Craig, and Reilly, because the aggregate damage claims against each was below the circuit court's threshold jurisdictional requirement of $5,000;⁴ that the individual candidates were not proper parties, and that the entities responsible for the calls were the proper parties; that the statutes and regulations did not violate the First Amendment by unduly restricting political speech; that the phone calls were not commercial in nature pursuant to C.F.R. § 64.1200(a), implementing 47 U.S.C. § 227(b), and that pursuant to C.F.R. § 64.1200(b), implementing 47 U.S.C. § 227(d), there was no private right of action; and, that the MDTCPA requires a violation of the federal TCPA, and the Maryland statute can not create a private right of action where none exists under the federal statute because it is preempted by the federal statute.

On July 5, 2007, appellant filed a motion to alter and amend the June 25 opinion and order, arguing, inter alia, that the court failed to provide a hearing on Giuliani's motion to dismiss, as is required when one is requested pursuant to Rule 2-311(f).

On August 7, 2007, the court issued a memorandum opinion and order denying appellant's motion to alter and amend, ruling that an additional hearing on Guiliani's motion to dismiss pursuant to Rule 2-311(f) would have been pointless as the court had already heard and considered legal argument on appellant's opposition to the motions to dismiss at the May 1 hearing, and an additional hearing on Giuliani's motion would serve only to hear the same positions reargued.

As we shall explain below, we need not address each of the circuit court's conclusions to reach our decision.

Discussion

A. Parties' Contentions

1. Appellant

Initially, appellant observes that pursuant to 47 U.S.C. § 227(b)(1)(B), "Congress banned the initiation of all pre-recorded voice phone messages," (emphasis in original) to a residential telephone line, without the consent of the called party, unless exempted by the Federal Communications Commission ("the Commission"), pursuant to the authority given to it by TCPA to promulgate regulations. Appellant contends that the Commission, pursuant to the regulation appearing at 47 C.F.R. § 64.1200(b)(2) — which provides that all prerecorded messages shall state the telephone number of the business or entity responsible for the call-prohibited all calls not in compliance. Relying on Oklahoma ex rel. Edmondson v. Pope, 505 F.Supp.2d 1098 (W.D.Ok.2007), appellant explains that § 64.1200(b)(2) "applies to all prerecorded messages and does not exempt non-commercial, `political calls,' or any other type of prerecorded calls."

Appellant also argues that subject matter jurisdiction was proper in the circuit court as to Giuliani, Craig, and Reilly, regardless of whether the amount in controversy exceeded the statutory minimum of $5,000, because he was seeking injunctive relief, and only a court of equity can provide the remedy of injunctive relief.

Appellant next argues that the individual candidates were proper parties because the calls were made on their behalf, and the TCPA establishes strict liability and strict vicarious liability. Further, appellant avers that the TCPA is a remedial consumer protection statute that should be liberally construed. Because we shall conclude that no private right of action exists under the statute upon which appellant's claim is based, we need not reach this issue, and we shall not discuss appellees' positions in that regard.

Appellant acknowledges that the MDTCPA makes a violation of the TCPA a violation of Maryland law,⁵ and argues that he "alleged a proper violation and claim under the [MDTCPA] ... [thus, he] can maintain a private action for any violation of the federal TCPA or related FCC regulations." Appellant acknowledges that although "consumers do not have a private right of action arising under the federal TCPA § 227(d), because § 227(d) does not contain a private right of action, such as TCPA § 227(b) and § 227(c) ... have," the MDTCPA "creates its own private right of action for any violation of the federal TCPA," including § 227(d) and any regulations promulgated thereto; thus, although a § 227(d) violation is not actionable directly under federal law, it is actionable under the MDTCPA.

Appellant's final argument is that the court erred in dismissing the amended complaint against Giuliani without holding a hearing, when a hearing was requested pursuant to Maryland Rule 2-311(f).

2. Appellees

Appellees Ehrlich and Giuliani contend that, as the circuit court found, 47 C.F.R. § 64.1200(b)(2), the regulation serving as the basis for appellant's claim, was not promulgated pursuant to § 227(b), as appellant argued below,⁶ but rather, was promulgated pursuant to § 227(d), which does not provide for a private right of action. Thus, according to Ehrlich and Giuliani, in the absence of a private right of action in the first place, the...