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Gonzalez v. Hosopo Corp.

United States District Court, D. Massachusetts

April 9, 2019

WILLIAM GONZALEZ and JEREMIAH DAVILA-LYNCH, on behalf of themselves and others similarly situated, Plaintiffs,
v.
HOSOPO CORPORATION d/b/a HORIZON SOLAR POWER; TMI 4 U COMM LLC; DAVID GOODSTEIN; and FLOWMEDIA SOLUTIONS LLC, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS

          F. Dennis Saylor, IV United States District Judge.

         This is a putative class action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Plaintiffs Jeremiah Davila-Lynch and William Gonzalez allege that they received telemarketing phone calls from defendants HOSOPO Corporation d/b/a Horizon Solar Power, Flowmedia Solutions LLC, and TMI 4 U COMM, LLC that violated the TCPA and Mass. Gen. Laws ch. 93A.[1]

         Defendants Horizon Solar and Flowmedia have each moved to dismiss the complaint for failure to state a claim upon which relief can be granted. On January 30, 2019, Flowmedia filed a suggestion of bankruptcy, automatically staying the proceeding as to it. For the following reasons, the motion of defendant Horizon Solar will be denied.

         I. Background

         A. Factual Background

         William Gonzalez and Jeremiah Davila-Lynch are residents of Massachusetts whose cell phone numbers have a “508” area code. (Second Amended Compl. ¶ 6-7, 32, 48). HOSOPO Corporation, doing business as Horizon Solar Power, designs and installs residential solar-power systems. (Id. ¶ 8, 22). To generate new clients, Horizon Solar makes telemarketing calls and hires third parties, including Flowmedia Solutions LLC and TMI 4 U COMM LLC, to make telemarketing calls on its behalf. (Id. ¶ 23-24, 60).

         In November and December 2017, Davila-Lynch received at least five calls from Solar Spectrum, a company he contends is the “same” as Horizon Solar. (Id. ¶ 33, 36).[2] Davila-Lynch alleges that the calls included “pre-recorded message[s]” offering to save him money by using solar-generated electricity. (Id. ¶ 34-35). Davila-Lynch also alleges that heard a “click and pause” sound upon answering each of those calls, a fact that he contends “indicate[s]” the calls were made using an “Automatic Telephone Dialing System” (“ATDS”). (Id. ¶ 34).

         In January 2018, Gonzalez received an unidentified number of calls on his cell phone from TMI. (Id. ¶ 49). Gonzalez contends that those calls included “scripted telemarketing pitches” on behalf of Horizon Solar, and were made by a “ViciDial predictive dialer, ” a type of ATDS. (Id. ¶ 50-51).

         Finally, during the end of January, and at times through February and March 2018, Gonzalez received at least eight telemarketing phone calls directly from Horizon Solar. (Id. ¶ 55). Gonzalez alleges that these calls were made with Five9, yet another type of ATDS. (Id. ¶ 56).

         B. Procedural Background

         On January 15, 2018, Davila-Lynch filed a complaint against Horizon Solar and “John Doe Corporation” on “behalf of a proposed nationwide class of other persons who received illegal telemarketing calls from or on behalf of the defendants.”

         On April 25, 2018, Davila-Lynch filed an amended complaint that added Flowmedia as a defendant.

         On August 31, 2018, Davila-Lynch, now joined by Gonzalez, filed a second amended complaint. The second amended complaint added TMI and David Goodstein as defendants and alleges two counts: (1) a violation of the Telephone Consumer Protection Act; and (2) a violation of Mass. Gen. Laws ch. 93A.[3]

         Defendants Horizon Solar and Flowmedia both moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. On January 30, 2019, Flowmedia filed a suggestion of bankruptcy.

         II. Standard of Review

          On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court “must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the plaintiff must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if plaintiff's well-pleaded facts do not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations omitted).

         III. Analysis

         A. The Telephone Consumer Protection Act

         Congress enacted the TCPA in 1991 after determining that “[m]any consumers [were] outraged over the proliferation of intrusive, nuisance calls . . . from telemarketers.” 47 U.S.C. § 227 note, Pub. L. No. 102-243, § 2(6)-(7). The TCPA makes it “unlawful . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service, ” “unless such call is made solely to collect a debt owed or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii). “In short, the TCPA generally makes it unlawful to call a cell phone using” an ATDS. ACA International v. Federal Communications Commission, 885 F.3d 687, 693 (D.C. Cir. 2018).

         Under the TCPA, an ATDS is defined as “equipment which has the capacity-(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).

         The dispute in this case centers on “[a] basic question raised by” that definition: “whether a device must itself have the ability to generate random or sequential telephone numbers to be dialed” or whether “it [is] enough” that “the device can call from a database of telephone numbers generated elsewhere.” ACA Int'l, 885 F.3d at 701. Essentially, Horizon Solar contends that an ATDS must itself have the ability to generate random or sequential telephone numbers to be dialed, while Davila-Lynch contends that ...


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