Court Dismisses Repeat Player’s 17-Count Complaint for Failure to State a Claim
Sometimes more is just more. In Worsham v. Disc. Power, 2021 U.S. Dist. LEXIS 1931 (D. Md. Jan. 6, 2021), plaintiff brought a 17-count complaint against defendant under the TCPA and Maryland Telephone Consumer Protection Act (“MDTCPA”) for seven calls defendant allegedly made to plaintiff’s landline in a five-day period. Last week, a Maryland federal court dismissed each and every count for failure to state a claim.
As the court noted, this case was not plaintiff’s first TCPA rodeo. Plaintiff, a lawyer who was disbarred in 2014 and is proceeding pro se, has brought several other TCPA and MDTCPA’s cases, some of which were dismissed at the pleading stage or on summary judgment.
Plaintiff’s 17-count complaint alleged violations of Sections 227(a) and (b) of the TCPA and the corresponding MDTCPA provisions. As to the alleged Section 227(a) violations, which asserted that the challenged calls were made with an ATDS, the court found that plaintiff “asserts absolutely no facts to support his allegations that [defendant] used an ATDS” and accordingly dismissed the claims based on Section 227(a).
As to the Section 227(b) claims, the court questioned whether plaintiff’s phone number was “residential,” as he had represented in another TCPA lawsuit that the same telephone number was his law firm business telephone number (despite the fact that he was not a licensed lawyer). Regardless, the court found that Counts 1 and 5, which alleged violations of the TCPA and MDTCPA for calling a phone number on the DNC Registry, must be dismissed because even if there number were primarily residential, the number was also used for business purposes and business numbers are not permitted to be registered on the DNC Registry. “By extension, there can be no violation of the TCPA and MDTCPA on the basis of calling a number of the DNC registry.”
As to Counts 2, 3, 6, and 7, which asserted claims based on violations of FCC regulations requiring that a caller provide certain caller information, the court followed its earlier decision in another TCPA case by plaintiff – Worsham v. Travel Options, Case No. JKB-14-2749, 2016 WL 4592373 (D. Md. Sept. 2, 2016) – and determined that such requirements are “procedural standards” that fall within Section 227(d) – not Section 227(b) – for which no private right of action exists. The court likewise concluded that Counts 9-11, which asserted violations of 47 C.F.R. Section 64.1200(b), also flowed directly from Section 227(d) for which Congress did not intend private parties to enforce and dismissed those counts as well.
The court also dismissed plaintiff’s claims (Counts 4 and 8) that defendant violated FCC regulation 47 C.F.R. Section 64.1200(a)(3) because he failed to plead facts that the calls do not fall within exception (iii), which excludes a call “made for a commercial purpose” that “does not include or introduce an advertisement or constitute telemarketing.” In addition, plaintiff failed to plead facts that support his “conclusory allegations” that defendant initiated the prerecorded calls, which the court found is also fatal to Counts 4 and 8.
Finally, the court dismissed Counts 12-17, which alleged violations of the MDTCPA based on alleged violations of the Telemarketing Sales Rule (“TSR”). The court noted that the MDTCPA has been interpreted to only provide a private right of action when a federal action exists. In order to bring a case under the TSR, a plaintiff must allege actual damages in excess of $50,000. Here, plaintiff only alleged $42,000 in statutory damages. In addition, for the same reasons that Counts 4 and 8 failed, the court found that plaintiff had failed to allege facts that defendant initiated the challenged calls or that defendant is a “telemarketer” or “seller,” as is required to state a claim for violation of the TSR. Plaintiff also failed to allege facts supporting his substantive TSR violations.
In light of the dismissal of the claims in his complaint, the court had little trouble in concluding that the claims for treble damages and attorneys’ fees must also be dismissed. In addition, the court noted that plaintiff “is not entitled to attorney’s fees, as he is a not a licensed attorney anywhere in the United States.”
Having addressed and determined that each and every claim in Plaintiff’s complaint failed to state a cause of action, the court dismissed the complaint with prejudice. As this case demonstrates, just because you throw a lot against the wall does not mean something is going to stick.