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McDermet v. Heath

United States District Court, D. Massachusetts

January 30, 2018

WILLIAM MCDERMET, Plaintiff,
v.
JOHN C. HEATH, ATTORNEY AT LAW, PLLC d/b/a LEXINGTON LAW FIRM, Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S PARTIAL MOTION TO DISMISS

          F. DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE.

         This is an action arising from alleged solicitation calls made by defendant to plaintiff's cell phone. The pro se complaint contends that defendant violated various federal and state telemarketing and consumer protection statutes. Defendant has moved to dismiss four subclaims for failure to state a claim upon which relief can be granted. For the reasons stated below, the motion will be granted in part and denied in part.

         I. Background

         A. Factual Background

         The facts are set forth as described in the complaint.

         William McDermet is a resident of Ipswich, Massachusetts. (Compl. ¶ 2). He registered both his home landline phone number and cell phone number on the state and federal do-not-call registries. (Id. ¶ 7). It appears that he registered the landline number on August 16, 2003, and the cell phone number on January 28, 2010. (Id.).[1]

         Defendant or its agent allegedly called McDermet on his cell phone on seven separate occasions. (Id. ¶ 8). The calls were made on six dates: December 27, 2016 (1:29 p.m. and 1:42 p.m.), and January 25, February 23, March 7, March 9, and April 19, 2017. (Id.). When McDermet first picked up his phone, he heard a mechanical or recorded voice asking whether he needed help with credit repair. (Id. ¶ 9).

         During the two calls made in March 2017, McDermet indicated to the mechanical voice that he was interested in credit repair services. (Id. ¶ 10). At that point, he was transferred to a live person. (Id.). In both instances, the person on the other end of the line did not know McDermet's name and stated they were with the “Lexington Law Firm” in Utah. (Id. ¶¶ 10-11). During the March 9 phone call, McDermet requested a physical address for defendant. (Id. ¶ 10). He was then transferred to a supervisor, who provided a P.O. Box address. (Id.). McDermet reiterated his request for a physical address, and soon afterwards the line went dead. (Id.).

         On December 27, 2016, and February 23 and March 9, 2017, McDermet's caller identification function showed numbers that could not be redialed. (Id. ¶ 12). The numbers shown on January 25 and March 7, 2017, when redialed, led to entities unrelated to the Lexington Law Firm. (Id.).

         The complaint further alleges that McDermet never gave defendant or its agents permission to contact him. (Id. ¶ 13). In addition, on March 12, 2017, he sent a letter by certified mail to defendant demanding that it cease calling him and provide the name of any “lead generator” used to initiate the six calls. (Id. ¶ 14). He received a reply from attorney Laura Tanner on April 19, 2017, acknowledging receipt of the demand letter. (Id. ¶ 15). The reply disavowed liability. (Id.).

         The same day he received the letter, McDermet received another call using a mechanical voice purporting to offer to help with credit repair. (Id. ¶ 16). He provided the recording a fictitious name and was again transferred to an entity identifying itself as the Lexington Law Firm. (Id.). Upon speaking to a live person, he again stated that defendant was violating federal and state laws. (Id.). The number on his caller identification function could not be redialed. (Id.).

         B. Procedural Background

         The complaint was originally filed in the Essex County Superior Court on October 27, 2017. It alleges two counts against defendant, and embedded within both counts are multiple subclaims. Count 1 alleges violation of federal do-not-call laws and regulations. It alleges that defendant violated two subsections of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227-(b)(1)(A)(iii) and (b)(1)(B). It further alleges that defendant violated the Truth in Caller ID Act (“TCIA”), 47 U.S.C. § 227(e)(1), the Telemarketing and Consumer Fraud and Abuse Prevention Act (“TCFAPA”), 15 U.S.C. § 6101 et seq., and the Federal Trade Commission (“FTC”) Telemarketing Sales Rule, 16 C.F.R. § 310.4. Count 2 alleges that defendant violated the state consumer protection statute, Mass. Gen. Laws ch. 93A, and the state do-not-call statute, Mass. Gen. Laws ch. 159C.

         Defendant timely removed the action to federal court on November 27, 2017. Defendant has since moved to dismiss five subclaims: those brought under (1) section 227(b)(1)(B) of the TCPA, (2) the TCIA, (3) the TCFAPA, (4) FTC ...


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