United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S PARTIAL
MOTION TO DISMISS THE AMENDED COMPLAINT
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
amended complaint contends that defendant violated various
federal and state telemarketing and consumer protection
statutes. Defendant has moved to dismiss claims arising out
of two newly alleged solicitation calls. For the reasons
stated below, the motion will be denied.
facts are set forth as described in the amended complaint.
McDermet is a resident of Ipswich, Massachusetts. (Am. Compl.
¶ 2). He registered both his cell-phone number and home
landline phone number on the state and federal do-not-call
registries on August 16, 2003, and January 28, 2010,
respectively. (Id. ¶ 7).
or his agent allegedly called McDermet on his cell phone on
nine separate occasions. (Id. ¶¶ 8,
16-18). The calls were made on eight dates: December 27, 2016
(1:29 p.m. and 1:42 p.m.), and January 25, February 23, March
7, March 9, April 19, November 21, and November 27, 2017.
(Id.). When McDermet picked up his phone on the
first seven occassions, he heard a mechanical or recorded
voice asking whether he needed help with credit repair.
(Id. ¶¶ 9, 16).
to the complaint, 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 alleges that he reiterated his request for a
physical address, and soon afterward the line went dead.
complaint further alleges that 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.).
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.).
seven months later, McDermet received two more calls. The
first call, on November 21, 2017, was from the number
800-338-1899. (Id. ¶ 17). When he answered the
phone, he received no response. (Id.). Attempts to
redial that number led to a message stating “[t]his
number is not in service.” (Id.). The second
call, on November 27, 2017, was from that same number.
(Id. ¶ 18). This time, when McDermet answered
the phone, a live person asked if “Robert” was
available and stated he was calling from the Lexington Law
Firm. (Id.). The caller proceeded to interview
McDermet before disconnecting. (Id.).
complaint was originally filed in the Essex County Superior
Court on October 27, 2017. It alleged two counts, and
embedded within both counts were multiple subclaims.
Defendant timely removed the action to federal court on
November 27, 2017. On January 30, 2018, the Court dismissed
plaintiff's claims under (1) section 227(b)(1)(B) of the
Telephone Consumer Protection Act (“TCPA”), (2)
the Truth in Caller ID Act (“TCIA”), ...