Boger v. Trinity Heating & Air, Inc. et al
Filing
56
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 4/18/2018. (heps, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
DAN BOGER, On Behalf of Himself and
Others Similarly Situated,
Plaintiff,
v.
Civil Action No. TDC-17-1729
TRINITY HEATING & AIR, INC., d/b/a
TRINITY SOLAR, and
MEDIA MIX 365,
Defendants.
MEMORANDUM OPINION
Plaintiff Dan Boger has brought this putative class action against Defendants Trinity
Heating & Air, Inc. (“Trinity”) and Media Mix 365 (“Media Mix”), alleging violations of the
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 (2012), and the Maryland
Telephone Consumer Protection Act (“MTCPA”), Md. Code Ann., Com. Law §§ 14-3201 to
3202 (2013).
Boger alleges that Trinity and Media Mix violated these laws by using an
automatic telephone dialing system (“ATDS”) to call his cellular telephone without his consent.
Pending before the Court are two Motions to Dismiss, one filed by Trinity and the other by
Media Mix. Having reviewed the pleadings and the briefs, the Court finds that no hearing is
necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Motions are
DENIED.
BACKGROUND
Trinity, a company that installs solar power systems, uses telemarketing to reach new
customers. To that end, it hired Media Mix to conduct a telemarketing campaign on its behalf.
As part of this campaign, Media Mix used an ATDS, which places the calls automatically, then
transfers them to live operators only when the calls are answered. An ATDS thus allows
telemarketers to make thousands of calls in a cost-effective manner.
Media Mix called Plaintiff Boger on his cellular telephone at least three times between
January 2017 and May 2017. All of these calls were made without Boger’s consent. Boger had
placed that telephone number on the National Do Not Call Registry more than five years earlier
and did not otherwise consent to receive calls from Defendants.
Boger answered the calls on January 31, 2017 and May 11, 2017. Boger alleges that he
was aware that both of these calls were made with an ATDS because upon answering them, he
heard a lengthy pause and then a click before a live person came on the line and told him that the
call was made on behalf of the Solar Research Group, which Boger alleges is a pseudonym for
Trinity.
During the May 11 call, the initial speaker asked Boger several questions, then
connected Boger to a Trinity employee, who attempted to enroll him as a new Trinity customer.
Boger then filed this putative class action on behalf of the thousands of persons who, he alleges,
have received similar ATDS-initiated calls from Defendants over the past four years.
DISCUSSION
In their separate Motions, Defendants seek dismissal of the MTCPA claim on the grounds
that it is not an independent cause of action distinct from the TCPA claim, such that Boger may
not receive statutory damages under both the TCPA and MTCPA for the same conduct. To
defeat a motion to dismiss under Rule 12(b)(6), the complaint must allege enough facts to state a
plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible
when the facts pleaded allow “the Court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. Legal conclusions or conclusory statements do not
2
suffice. Id. The Court must examine the complaint as a whole, consider the factual allegations
in the complaint as true, and construe the factual allegations in the light most favorable to the
plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm’rs of Davidson
Cty., 407 F.3d 266, 268 (4th Cir. 2005).
Defendants contend that the MTCPA is merely an enabling statute that empowers
plaintiffs to bring a federal TCPA claim in a Maryland court. Defendants thus argue that
asserting both an MTCPA claim and a TCPA claim based on the same conduct is inappropriate
and duplicative. Addressing this argument requires a brief overview of the history of the TCPA
and MTCPA.
Congress enacted the TCPA in 1991 to address widespread consumer complaints over
practices such as telemarketing. Mims v. Arrow Fin. Serv., LLC, 565 U.S. 368, 370–71 (2012).
As relevant here, the statute bans the use of an ATDS to call cellular telephones unless the caller
has the “prior express consent” of the called party. 47 U.S.C. § 227(b)(1)(A). The TCPA further
provides that a “person or entity may, if otherwise permitted by the laws or rules of court of a
State,” bring a lawsuit “in an appropriate court of that State” against callers who violate the
statute. 47 U.S.C. § 227(b)(3); Mims, 565 U.S. at 386–87. A plaintiff may recover either actual
damages or statutory damages of $500 per call, whichever is greater, and may receive treble
damages ($1,500 per call) if the defendant “willfully or knowingly violated” the law. 47 U.S.C.
§ 227(b)(3).
Section 227(b)(3), which creates the TCPA’s private cause of action, only references the
filing of such claims in state court. Following the TCPA’s passage, litigants disputed whether
plaintiffs could bring TCPA claims in federal court pursuant to federal question jurisdiction. In
1997, the United States Court of Appeals for the Fourth Circuit ruled that they could not, because
3
Congress had specifically “authorized jurisdiction over private actions in state courts without
mentioning federal courts” and therefore “did not intend to grant jurisdiction over TCPA claims
in federal district courts.” Int’l Science & Tech. Inst., Inc. v. Inacom Comms., Inc., 106 F.3d
1146, 1152 (4th Cir. 1997). The federal courts in the Fourth Circuit would remain closed to
TCPA plaintiffs asserting federal question jurisdiction until 2012, when the United States
Supreme Court overruled International Science. See Mims, 565 U.S. at 376 (holding that federal
courts have federal question jurisdiction over private TCPA suits).
Meanwhile, in Maryland courts, a separate question percolated: whether TCPA plaintiffs
could file suit in state court as a matter of course, without explicit authorization through a
Maryland enabling statute or rule. In January 2003, the Court of Special Appeals of Maryland
held that the Maryland General Assembly had chosen to “opt out” of the grant of jurisdiction
over private TCPA suits provided by § 227(b)(3). R.A. Ponte Architects, Ltd. v. Investors’ Alert,
Inc., 815 A.2d 816, 827 (Md. Ct. Spec. App. 2003). This decision meant that both Maryland
courts and federal courts were closed to TCPA plaintiffs.
The General Assembly responded the following year by passing the MTCPA, effective
June 1 2004. See Md. Code Ann., Com. Law §§ 14-3201 to 3202; Worsham v. Ehrlich, 957
A.2d 161, 172 (Md. Ct. Spec. App. 2008). The MTCPA prohibits violations of the TCPA, labels
such violations as unfair or deceptive trade practices, and authorizes individuals affected by an
MTCPA violation to file suit in state court to recover actual or statutory damages and attorney’s
fees. Md. Code Ann., Com. Law §§ 14-3201 to 3202.
Then on August 2004, shortly after the MTCPA took effect, the Court of Appeals of
Maryland overruled the intermediate court and held that TCPA claims under § 227(b)(3) could,
4
in fact, be initiated in Maryland courts. R.A Ponte Architects, Ltd. v. Investors’ Alert, Inc., 857
A.2d 1, 18 (Md. 2004). It did so without referencing the newly enacted MTCPA.
Based on this history, both the Maryland Court of Special Appeals and the Maryland
Court of Appeals have stated in dicta that it is “likely that the General Assembly enacted the
[MTCPA] merely to enable a private right of action under the TCPA, not to create new causes of
action.” Ehrlich, 957 A.2d at 172; see AVG Sports Grp., Inc. v. Protus IP Solutions, Inc., 10
A.3d 745, 747 (Md. 2010) (quoting Ehrlich). Defendants therefore argue that the MTCPA claim
must be dismissed because it is not a separate cause of action.
However, the Court of Appeals of Maryland has never held that a plaintiff may not assert
both a TCPA and an MTCPA claim arising from the same factual basis. Indeed, in a separate
case decided a year after Ehrlich, the Court of Special Appeals referred to the MTCPA as a
“similar, but distinct” statute from the TCPA. Worsham v. Fairfield, 981 A.2d 24, 33 (Md. Ct.
Spec. App. 2009). Significantly, a comparison of the statutes reveals notable differences that
support the view that an MTCPA claim may be asserted separately. In particular, successful
plaintiffs may recover attorney’s fees under the MTCPA, but such fees are not available under
the TCPA. Compare 47 U.S.C. § 227(b)(3) with Md. Code Ann., Com. Law § 14-3202(b)(1). In
affording this additional form of recovery unavailable under the TCPA, the MTCPA cannot
fairly be construed as doing no more than authorizing a TCPA claim. Likewise, while a federal
TCPA claim may be brought by a corporate entity and allows for the recovery of treble damages
(statutory damages of $1,500 per call) for willful or knowing violations, under the MTCPA,
plaintiffs must be individuals, and statutory damages are limited to $500 per call. Compare 47
U.S.C. § 227(b)(3) with Md. Code Ann., Com. Law § 14-3202(b); see Pasco v. Protus IP
Solutions, Inc., 826 F. Supp. 2d 825, 843–44 (D. Md. 2011). Finally, the TCPA and the MTCPA
5
have different statutes of limitations: a TCPA claim must be brought within four years, while an
MTCPA claim must be filed within three years. See Fairfield, 981 A.2d at 25, 33. These
differences undermine the claim that the MTCPA is not a freestanding cause of action and is
nothing more than an enabling statute for bringing TCPA claims in state court. Here, where
Boger correctly argues that dismissal of the MTCPA claim would eliminate the only statutory
basis for the recovery of attorney’s fees, the Court cannot conclude that dismissal of the MTCPA
claim would merely eliminate duplicative claims. The motion to dismiss will therefore be
denied.
In so ruling, the Court does not decide whether Boger may recover damages under both
the TCPA and MTCPA for the same alleged injury. Although Defendants sought to conflate this
question with the issue whether the MTCPA is a distinct cause of action, these are separate
questions. Generally, a plaintiff may not receive a “double recovery under different legal
theories for the same injury.” Gordon v. Pete’s Auto Serv. of Denbigh, Inc., 637 F.3d 454, 460
(4th Cir. 2011). At least one judge in this District has expressed doubts that plaintiffs may
recover statutory damages under both the TCPA and MTCPA for the same violations. See
Pasco, 826 F. Supp. 2d at 846.
This Court need not resolve the issue at this early stage of the case. As discussed above,
the MTCPA claim will not be dismissed, at a minimum, to allow Boger to preserve a possible
claim for attorney’s fees. The elements of the TCPA and MTCPA claims are effectively the
same, leaving the scope of discovery unaffected by the MTCPA claim’s continued presence in
this litigation. The question of entitlement to damages under both statutes can be addressed
through briefing at a later stage of the case when the issue of the amount of damages must be
decided. See Pasco, 826 F. Supp. 3d at 846 (in resolving cross motions for summary judgment,
6
declining to decide as premature the question whether damages may be recovered under both the
TCP A and MTCP A, which would be resolved prior to submission of the case to the jury).
CONCLUSION
For the foregoing reasons, Trinity's Motion to Dismiss, ECF No. 22, and Media Mix's
Motion to Dismiss, ECF No. 31, will be DENIED.
Date: April 18,2018
A separate Order shall issue .
.si<":~
THEODORE D. CHUA~
United States District Judge
7
-.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?