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Jones v. Revenue Assistance Program

United States District Court, D. Massachusetts

July 15, 2016

PAUL JONES, Plaintiff,
v.
REVENUE ASSISTANCE PROGRAM, FRONTIER COMMUNICATIONS and PORTFOLIO RECOVERY ASSOCIATES, L.L.C., Defendants.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         This case arises from allegations that defendants made unsolicited telemarketing calls to plaintiff’s telephone numbers without his consent and in violation of federal and state consumer protection laws.

         Pending before the Court are two motions to dismiss and plaintiff’s motion to amend the amended complaint. For the reasons that follow, the motion to dismiss by defendant Revenue Assistance Corporation (“Revenue”) will be allowed, the motion to dismiss by defendant Frontier Communications (“Frontier”) will be allowed, in part, and denied, in part, and the motion to amend by plaintiff will be allowed, in part, and denied, in part.

         I. Background and procedural history

         Plaintiff Paul Jones (“Jones” or “plaintiff”) is a pro se litigant and a Massachusetts resident. He claims to have registered various telephone numbers, including (413) 328-2070, (781) 344-3456, (978) 425-6336, (781) 344-4351 and (800) 507-6668, under his name and through a “Voice over IP” (“VoIP”) service provider.[1] He asserts that he has registered all five numbers on either the federal or state “Do Not Call” list.

         Defendant Revenue is a telemarketing company which, according to plaintiff, is not registered to do business in Massachusetts and has its “usual” place of business in Ohio. Revenue purportedly placed multiple unsolicited telephone calls to plaintiff’s numbers at (413) 328-2070, (781) 344-3456, (978) 425-6336 and (781) 344-4351.

         Defendant Frontier is a large telecommunications company which allegedly has its principal place of business in Connecticut. Plaintiff asserts that Frontier placed multiple unsolicited calls to plaintiff’s number at (800) 507-6668.

         In December, 2015, plaintiff initiated this action by filing a verified complaint alleging that Revenue and Frontier used “automatic dialing systems” to make telemarketing phone calls to him in violation of the Telephone Consumer Protection Act (“TCPA”) at 47 U.S.C. § 227, et seq., the Massachusetts Telemarketing Solicitation Act (“MTSA”) at M.G.L. c. 159C, § 1, et seq. and the Massachusetts consumer protection law at M.G.L. c. 93A, § 2 (“Chapter 93A”). Plaintiff amended his complaint shortly thereafter to name three additional defendants and assert a new claim pursuant to the Fair Debt Collection Practices Act (“FDCPA”) at 15 U.S.C. § 1629, et seq.

         Revenue and Frontier each moved to dismiss the claims against them in January, 2016. Plaintiff reached settlements with two of the three remaining defendants and moved for leave to file a second amended verified complaint. The proposed second amended complaint 1) names only Revenue and Frontier as defendants, 2) reorganizes the allegations with respect to the TCPA, MTSA and Chapter 93A claims and 3) omits the FDCPA claims.

         The Court notes that, because plaintiff has chosen not to pursue his claims against Portfolio Recovery Associates, L.L.C. (“Portfolio”) in the proposed second amended complaint, the claims against Portfolio will be dismissed.

         II. Revenue’s motion to dismiss and plaintiff’s motion to amend

         A. Legal standards

         To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court may consider documents incorporated by reference, matters of public record and other matters subject to judicial notice. Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008). In assessing the merits of the motion, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011). Threadbare recitals of the legal elements, supported by mere conclusory statements, do not suffice to state a cause of action. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         With respect to amendments, the court has broad discretion under Fed.R.Civ.P. 15(a)(2) to allow the plaintiff to amend his pleadings and “should freely give leave when justice so requires”. United States ex rel. Gagne v. City of Worcester, 565 F.3d 40, 48 (1st Cir. 2009). Courts may deny such leave to amend for reasons such as “undue delay, bad faith, futility, and the absence of due diligence on the movant’s part”. Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). In determining futility, the court applies the same standard which applies to motions to dismiss under Rule 12(b)(6). Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).

         B. Application

         Revenue seeks to dismiss the amended complaint for failure to state a claim based upon the doctrine of res judicata, the “prior pending action” doctrine, MTSA standing and plaintiff’s failure to comply with minimal pleading requirements.

         1. Res judicata and the MTSA claim against Revenue

         Under the doctrine of res judicata, a final judgment on the merits of a previously filed action precludes the parties from re-litigating issues that were, or could have been, raised in that prior action. Perez v. Volvo Car Corp., 247 F.3d 303, 311 (1st Cir. 2001). The doctrine applies if there is 1) a final judgment on the merits in the earlier action, 2) “sufficient identicality” between the causes of action asserted in the earlier and later actions and 3) “sufficient identicality” between the parties in the two actions. Id.

         If a plaintiff moves in the earlier action to amend the complaint and then chooses not to appeal the denial of that motion, res judicata precludes him from attempting to litigate in the later action the claims which he unsuccessfully sought to add in the earlier action. Hatch v. Trail King Indus., Inc., 699 F.3d 38, 45 (1st Cir. 2012).

         A review of the pleadings in the public record indicates that res judicata prevents plaintiff from asserting his MTSA claim against Revenue in this action.

         In 2014, plaintiff initiated an earlier action in another session of the Court alleging that Revenue made several unsolicited telephone calls to him despite his repeated requests for the calls to stop. The amended complaint in the earlier action asserted FDCPA and TCPA claims against Revenue. Plaintiff moved to amend the amended complaint in the earlier action to add MTSA and Chapter 93A claims against Revenue with respect to calls placed to his numbers at (413) 328-2070, (781) 344-3456, (978) 425-6336 and (781) 344-4351. The magistrate judge in the 2014 case denied plaintiff’s motion to amend as futile. Jones Experian Info. Sols., Inc., 141 F.Supp.3d 159, 161 (D. Mass. 2015).

         Plaintiff did not appeal that denial of leave to amend by the magistrate judge to the district judge. See Pagano v. Frank, 983 F.2d 343, 346 (1st Cir. 1993) (internal quotation marks omitted)(“A party displeased by a magistrate's order on a nondispositive motion must serve and file objections to the order within ten days . . . [otherwise] he may not thereafter assign as error a defect in the magistrate judge’s order[.]”). The denial of leave thus qualifies as a final judgment on the merits of the MTSA claim in the earlier action. See Hatch, 699 F.3d at 45.

         The Court concludes that res judicata bars the MTSA claim against Revenue in the instant action with respect to calls allegedly placed to (413) 328-2070, (781) 344-3456, (978) 425-6336 and (781) 344-4351. The Court need not consider Revenue’s challenge to plaintiff’s standing to bring the MTSA claim because that finding is dispositive. Accordingly, Revenue’s motion to dismiss the MTSA claim will be allowed.

         The proposed second amended complaint asserts no allegations that would overcome the finding that res judicata precludes plaintiff’s MTSA claim against Revenue. Accordingly, plaintiff’s motion to amend the amended complaint with respect to the MTSA claim against Revenue will be denied as futile.

         2. The “prior pending action” doctrine and the TCPA claims against Revenue

         The “prior pending action” doctrine provides that, to ensure judicial efficiency and avoid inconsistent judgments,

the pendency of a prior action, in a court of competent jurisdiction, between the same parties, predicated upon the same cause of action and growing out of the same transaction, and in which identical relief is sought, constitutes good ground for abatement of the later suit.

Quality One Wireless, LLC v. Goldie Grp., LLC, 37 F.Supp.3d 536, 540-41 (D. Mass. 2014). The doctrine permits a court to stay or dismiss the later action if 1) there is an “identity of issues” between the earlier and later actions and 2) the earlier action will determine the controlling issues in the later action. Id. at 541.

         An examination of the pleadings in the public record establishes that the “prior pending action” doctrine bars plaintiff’s TCPA claims against Revenue in this action.

         The TCPA claims against Revenue in both the 2014 action and this action concern unsolicited calls by Revenue to plaintiff’s VoIP-registered telephone numbers. Revenue filed a motion for judgment on the pleadings in the 2014 case with respect to the TCPA claims against it. The magistrate judge issued a Report and Recommendation, which the district judge has not yet accepted or adopted, on the pending motion for judgment on the pleadings in April, 2016 and plaintiff filed an objection. The resolution of Revenue’s motion by the district judge in the 2014 case will determine whether Revenue’s calls in the instant case ...


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