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McDermet v. Heath

United States District Court, D. Massachusetts

June 22, 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 THE AMENDED COMPLAINT

          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 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.

         I. Background

         A. Factual Background

         The facts are set forth as described in the amended complaint.

         William 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).

         Defendant 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).

         According 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. (Id.).

         The 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.).

         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.).

         Approximately 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.).

         B. Procedural Background

         The 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”), ...


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