United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE.
William McDermet (“McDermet”), pro se,
filed this action against Defendant Trinity Heating and Air,
Inc. (“Trinity”) alleging violations of the
Massachusetts Telemarketing Solicitation Act
(“MTSA”), Mass. Gen. L. c. 159C, the federal
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C § 227, and various federal regulations, 47 C.F.R.
§ 64.1200 et seq. D. 27 ¶¶ 20, 22-26.
Trinity has moved to dismiss all but McDermet's claim
that he was called in violation of the TCPA's
do-not-call-restrictions. D. 30 at 1; see D. 27
¶ 22. For the reasons stated below, Trinity's
motion, D. 29, is ALLOWED in part and DENIED in part.
Standard of Review
survive a motion to dismiss “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). Where “the factual allegations in
the complaint are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture,
the complaint is open to dismissal.”
Rodríguez-Reyes v. Molina-Rodríguez,
711 F.3d 49, 53 (1st Cir. 2013) (quoting SEC v.
Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc)).
Court accepts as true the facts alleged in the complaint.
See Ashcroft, 556 U.S. at 678. McDermet registered
his home telephone number with the state
“Do-Not-Call” registry in April 2003 and the
federal “Do-Not-Call” registry in August 2003. D.
27 ¶ 7. He registered his cellular telephone number with
the same state and federal registries in July 2010 and
January 2010, respectively. Id. McDermet alleges he
received thirty-one phone calls from Trinity or its agents
between April 2016 and February 2017. Id. ¶
10-13, 16-18. These callers sometimes indicated an
association with Trinity, id. ¶ 10, 12, 16, and
other times remained unidentified, id. ¶ 10-13,
17-18. On most occasions, these callers inquired whether
McDermet was interested in solar panels. Id. ¶
10-12, 17. Occasionally McDermet heard only silence and would
then return the phone call, id. ¶12, 18, while
other times McDermet heard an automated message, id.
¶ 17. McDermet also received four text messages on
September 29, 2016 from someone identifying himself as
“Glen Myers, with Trinity Solar . . . of Wall
NJ.” Id. ¶ 14. McDermet sent two letters
to Trinity, one in March 2016 and the other in October 2016,
claiming the company was violating state and federal
“Do-Not-Call” laws and demanding they stop.
Id. ¶¶ 8, 15.
instituted this action in Essex Superior Court. D. 1-1.
Trinity removed the action to this Court on April 3, 2017. D.
1. Trinity has now moved to dismiss certain of the counts. D.
29. The Court heard the parties on the pending motion and
took the matter under advisement. D. 40.
preliminary matter, Trinity argues that all of McDermet's
MTSA allegations fail generally because, as pled, no private
right of action exists. D. 30 at 2. An individual “who
has received more than 1 unsolicited telephonic sales call
within a 12-month period by or on behalf of the same person
or entity in violation of [Chapter 159C: Telemarketing
Solicitation]” may bring a private action. Mass. Gen.
L. c. 159C, § 8(b). Trinity contends that McDermet has
not “allege[d] even minimal facts that would allow this
Court to reasonably infer that the calls amounted to
‘unsolicited telephone sales calls.'” D. 30
at 3. The Court disagrees. A “telephonic sales
call” is a call made to a consumer from a solicitor
attempting to engage in marketing, sales or credit
solicitation or to obtain information for solicitation
purposes. Mass. Gen. L. c. 159C, § 1. An
“unsolicited telephonic sales call” is a
telephonic sales call not made (i) in response to an express
request of the consumer; (ii) primarily in connection to an
existing debt, contract or performance which has not been
completed by the time of the call; (iii) to an existing
customer unless the customer has requested not to be called;
or (iv) in which a sale is not completed and payment or
authorization of payment is not required until after a later
face-to-face sales presentation or meeting. Id.
McDermet alleges that several of the phone calls he received
were “inquiring whether [he] was interested in solar
panels.” D. 27 ¶¶ 10-12. McDermet also
alleges he and Trinity entered into a settlement agreement
regarding any claims arising up until March 31, 2016,
id. ¶ 9, and he sent Trinity two letters
demanding they stop calling him, id. ¶¶ 8,
15. These factual allegations, taken together, reasonably
show that the alleged calls from Trinity were not in response
to an express request from McDermet, nor were they regarding
an existing debt, relationship or anticipated sale. As such,
the calls plausibly constitute unsolicited telephonic sales
calls and McDermet may bring a private right of action
against Trinity. See A.G. ex rel. Maddox v. Elsevier,
Inc., 732 F.3d 77, 82 (1st Cir. 2014) (citing
Ocasio-Hernández, 640 F.3d at 14) (explaining
that “[t]he critical question is whether the claim,
viewed holistically, is made plausible by the cumulative
effect of the factual allegations contained in the
complaint” (internal quotation marks omitted)).
resolved this preliminary issue, the Court now addresses each
of Trinity's arguments pertaining to McDermet's
specific MTSA allegations. First, McDermet alleges Trinity
violated § 3(i) of the MTSA, which provides that a
“telephone solicitor shall not make or cause to be made
an unsolicited telephonic sales call to a consumer: (i) if
the consumer's name and telephone number appear on the
then current quarterly no sales solicitation calls listing
made available.” Mass. Gen. L. c. 159C, § 3(i).
Because McDermet states sufficient facts, taken as true, to
allege Trinity's calls were unsolicited telephonic sales
calls and he expressly claims his phone numbers have been on
“Do Not Call” lists since 2003 and 2010, well
before the alleged calls from Trinity occurred in 2016, the
complaint contains sufficient factual matter to state a
plausible claim under § 3(i). Accordingly, Trinity's
motion to dismiss McDermet's MTSA § 3(i) claim is
McDermet claims Trinity violated MTSA § 4. D. 27 ¶
20. Section 4 states that no “telephone solicitor shall
intentionally cause to be installed or shall intentionally
use a blocking device or service to circumvent a
consumer's use of a call identification service or
device.” Mass. Gen. L. c. 159C, § 4. Trinity
argues the “[c]omplaint contains no facts to suggest
that such a device was utilized.” D. 30 at 4. The Court
agrees, but does not agree that it is futile to amend.
Nothing in the complaint indicates the caller's phone
number was blocked, nor do any alleged facts imply a device
or service was used to block caller identification. Although
McDermet claims he returned several phone calls, which
indicates he was able to identify the phone number,