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McDermet v. Trinity Heating and Air, Inc.

United States District Court, D. Massachusetts

February 12, 2018




         I. Introduction

         Plaintiff 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.

         II. Standard of Review

         To 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)).

         III. Factual Background

         The 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.

         IV. Procedural History

         Plaintiffs 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.

         V. Discussion

         A. MTSA Claims

         As a 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)).

         Having 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 DENIED.

         Second, 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, ...

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