United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S PARTIAL
MOTION TO DISMISS
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE.
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.
facts are set forth as described in the complaint.
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.
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.
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.).
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.
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.
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.).
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.
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 ...