United States District Court, D. Massachusetts
WILLIAM GONZALEZ and JEREMIAH DAVILA-LYNCH, on behalf of themselves and others similarly situated, Plaintiffs,
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
Dennis Saylor, IV United States District Judge.
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.
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.
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).
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,
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).
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).
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).
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
April 25, 2018, Davila-Lynch filed an amended complaint that
added Flowmedia as a defendant.
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.
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.
Standard of Review
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).
The Telephone Consumer Protection Act
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).
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).
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 ...