Worsham v. LifeStation, Inc.
| Decision Date | 17 November 2021 |
| Docket Number | 661-2020 |
| Parties | MICHAEL C. WORSHAM v. LIFESTATION, INC., ET AL. |
| Court | Court of Special Appeals of Maryland |
MICHAEL C. WORSHAM
v.
LIFESTATION, INC., ET AL.
No. 661-2020
Court of Special Appeals of Maryland
November 17, 2021
Circuit Court for Harford County Case No. 12-C-17-000645
Fader, C.J., Wells, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.
OPINION [*]
FADER, C.J.
Michael C. Worsham, the appellant, filed suit against appellee LifeStation, Inc. and appellee MLA International, Inc., in the Circuit Court for Harford County. LifeStation is a New York corporation that sells medical alert monitoring services and MLA is a Florida corporation that contracted with LifeStation to provide telemarketing services for LifeStation's products. In the operative first amended complaint, Mr. Worsham brought claims against LifeStation and MLA under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, and its implementing regulations, and the Maryland Telephone Consumer Protection Act ("MDTCPA"), Md. Code Ann., Comm. Law §§ 14-3201 - 14-3202 (2013 Repl.), arising from nine telemarketing calls he received, eight of which were initiated as prerecorded calls and one of which was live. Mr. Worsham filed second and third amended complaints in which he sought to add two individual defendants-Jose Ayala, MLA's CEO and principal, and Grace Sabako, a LifeStation employee-and additional claims based on the same nine telemarketing calls.
The circuit court ultimately: (1) granted LifeStation's motion to strike the second and third amended complaints; (2) granted summary judgment in favor of LifeStation on all counts in the first amended complaint; (3) denied a motion for partial summary judgment filed by Mr. Worsham; (4) entered a default judgment for $20, 000 against MLA;[1]and (5) entered an order of default against Mr. Ayala, which the court later struck.
On appeal, Mr. Worsham argues that the circuit court erred in: (1) striking his second and third amended complaints and vacating the order of default as to Mr. Ayala; (2) granting summary judgment in favor of LifeStation; (3) denying Mr. Worsham's motion for partial summary judgment; (4) denying his motions to compel written discovery and a motion for immediate sanctions against LifeStation for failure to appear for a deposition; and (5) rescinding an earlier decision to recuse and by not disqualifying herself.
We hold, first, that the second and third amended complaints were properly filed under the Maryland Rules, that the record does not reveal a basis for striking them, and that the circuit court therefore abused its discretion in doing so. Second, it appears that the court's award of summary judgment in favor of LifeStation was grounded at least in part in some confusion concerning the nature of Mr. Worsham's claims and the facts in the summary judgment record. Based on our review of the record, LifeStation was entitled to judgment as a matter of law on the bases articulated by the circuit court only on Counts 9 and 11 of the first amended complaint. Accordingly, we will affirm the award of summary judgment in favor of LifeStation on those counts and reverse as to Counts 1, 2, 3, 4, 5, 6, 7, 10, 12, and 13.[2] Third, we discern no error in the circuit court's denial of Mr. Worsham's motion for partial summary judgment and so will affirm that decision. Fourth, although we discern no error or abuse of discretion in the discovery rulings Mr. Worsham challenges based on the procedural status of the case at the time those decisions were made, we will affirm some of those rulings and will vacate others so that they can be revisited on remand
in light of the other rulings in this decision. Finally, we discern no abuse of discretion in the court's denial of Mr. Worsham's motion to disqualify and so will affirm that decision. Accordingly, we will affirm in part, reverse in part, and vacate in part the judgment of the circuit court and remand for further proceedings consistent with this opinion.
BACKGROUND
Statutory and Regulatory Background
The TCPA, codified at 47 U.S.C. § 227, was enacted in 1991 in "response to Americans 'outraged over the proliferation of intrusive nuisance calls to their homes from telemarketers[.]'" Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 649 (4th Cir. 2019) (quoting Pub. L. No. 102-243 § 2(6) (1991)). "Among its provisions, the TCPA makes it unlawful for any person within the United States to 'initiate any telephone call to any residential telephone line using an artificial or prerecorded voice without the prior express consent of the called party.'" In re Dish Network, LLC, 28 FCC Rcd. 6574, 6575 (2013) ("Dish Network") (quoting 47 U.S.C. § 227(b)(1)(B)). The TCPA also authorizes the Federal Communications Commission to promulgate regulations "to establish a national 'do-not-call' registry that consumers can use to notify telemarketers that they object to receiving telephone solicitations." Dish Network, 28 FCC Rcd. at 6575 (citing 47 U.S.C. § 227(c)(1)-(4)). Under those regulations, "no person or entity is permitted to 'initiate any telephone solicitation . . . to any residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry.'" Dish Network, 28 FCC Rcd. at 6575 (alteration in Dish Network) (quoting 47 C.F.R. § 64.1200(c)(2)). In addition to
the prerecorded calls and do-not-call provisions, the TCPA authorizes the FCC to promulgate "technical and procedural standards for systems that are used to transmit any artificial and prerecorded voice messages via telephone." 47 U.S.C. § 227(d)(3).
The TCPA may be enforced by the FCC, by state Attorneys General, and, as most relevant here, by means of statutory private rights of actions to enforce the prerecorded or artificial calling restrictions established in § 227(b), the do-not-call restrictions established in § 227(c), and FCC regulations implementing those sections. See Dish Network, 28 FCC Rcd. at 6575; 47 U.S.C. §§ 227(b)(3) & (c)(5). A plaintiff bringing suit in state court under those provisions may recover the greater of actual monetary damages or $500 "for each . . . violation." 47 U.S.C. § 227(b)(3)(B) & (c)(5)(B). The TCPA does not create a private right of action to enforce the provisions of § 227(d)(3) (or the FCC's regulations implementing it), related to "technical and procedural standards for systems that are used to transmit any artificial and prerecorded voice messages via telephone."
Telemarketing practices are also regulated by the Federal Trade Commission under the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101 - 6108. In that statute, Congress directed the FTC to "prescribe rules prohibiting deceptive telemarketing acts or practices and other abusive telemarketing acts or practices." 15 U.S.C. § 6102(a)(1). The implementing regulations, known as the Telemarketing Sales Rule, appear at 16 C.F.R. Part 310. Like the FCC regulations, the Telemarketing Sales Rule prohibits any outbound call to a person whose number is listed on the national Do Not Call list registry ("Do Not Call List") and otherwise regulates telemarketing sales. See generally
16 C.F.R. §§ 310.1 - 310.9. A person may file a civil action in federal court to enforce the Telemarketing Sales Rule if the person was "affected by any pattern or practice of telemarketing" causing $50, 000 or more in actual damages. 15 U.S.C. § 6104(a).
The MDTCPA makes it a violation of state law to violate the Telemarketing and Consumer Fraud and Abuse Prevention Act, as implemented by the FTC, and the TCPA, as implemented by the FCC, and creates a private cause of action for violations of the MDTCPA. Comm. Law §§ 14-3201 - 14-3202. A plaintiff who files suit under the MDTCPA may recover the greater of the plaintiff's actual damages or $500 "for each violation." Id. § 14-3202(b)(2). "[E]ach prohibited telephone solicitation and each prohibited practice during a telephone solicitation is a separate violation." Id. § 14-3202(c).
Mr. Worsham's Factual Allegations
Mr. Worsham, who is self-represented in this case, maintains two phone numbers- a residential landline and a cell phone-both of which have been continuously listed on the national Do Not Call List since July 15, 2006. He alleged in his first amended complaint that, between September 2016 and April 2017, LifeStation or MLA on LifeStation's behalf placed eight prerecorded "robocalls" and one live phone call to either his landline or his cell phone. We will refer to the prerecorded calls sequentially as the "first call," the "second call," and so forth through the "eighth call." We will refer to the live call as the "live call."
The first call was made to Mr. Worsham's cell phone on September 7, 2016. A prerecorded female voice offered a "free medical device worth $475[.]" Mr. Worsham pressed "1" to speak to a customer service agent and was connected with an agent named "Dennis," who said he was with "Medical Alert[.]" The call disconnected when Mr. Worsham asked for more information about the advertised product. Mr. Worsham attempted to call the phone number that had appeared on his Caller ID, which included a local 410 area code, but the number was not in service.
The second, third, and fourth calls all were made to Mr. Worsham's landline on September 28, 2016, October 6, 2016, and February 24, 2017, respectively. Each began exactly like the first call, with a prerecorded female voice offering a free medical alert device worth $475. On each occasion, Mr. Worsham pressed "1" to connect to a live customer service agent. The second and fourth calls were disconnected after Mr. Worsham began speaking to a live agent. He never successfully connected to an agent during the third call.
The fifth call was made to Mr. Worsham's landline on March 1, 2017. It began like the other calls, with the "[s]ame" prerecorded female voice. Mr. Worsham pressed "1" and was connected with a customer service agent who gave the...
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