United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
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.
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.
Background and procedural history
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. He asserts that he has registered all five
numbers on either the federal or state “Do Not
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.
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.
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.
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
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.
Revenue’s motion to dismiss and plaintiff’s
motion to amend
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).
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
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
Res judicata and the MTSA claim against Revenue
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.
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).
review of the pleadings in the public record indicates that
res judicata prevents plaintiff from asserting his
MTSA claim against Revenue in this action.
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.
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.
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.
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.
The “prior pending action” doctrine and the TCPA
claims against Revenue
“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.
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.
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 ...