Jones v. Revenue Assistance Program

Filing 50

Judge Nathaniel M. Gorton: ENDORSED MEMORANDUM & ORDER entered granting 16 Motion to Dismiss; granting in part and denying in part 24 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 24 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 33 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/E CF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. 1) the motion to dismiss the amended complaint by defendant Revenue Assistance Corporation is ALLOWED, 2) the mo tion to dismiss the amended complaint by defendant Frontier Communications is, with respect to the claims under §§ 227(b)(1)(B) and (b)(1)(C) of the Telephone Consumer Protection Act and under the Fair Debt Collection Practices Act, ALLO WED; but is otherwise DENIED, and 3) the motion to amend the amended complaint by plaintiff is, with respect to the claims against Revenue Assistance Corporation, DENIED as futile; but, with respect to the surviving claims against Frontier Communications, ALLOWED. In addition, plaintiffs claims against defendant Portfolio Recovery Associates, L.L.C. are, in light of his decision not to pursue the claims in the proposed second amended complaint, DISMISSED. So ordered. (Caruso, Stephanie)

United States District Court
District of Massachusetts
PAUL JONES,
Plaintiff,
v.
REVENUE ASSISTANCE PROGRAM,
FRONTIER COMMUNICATIONS and
PORTFOLIO RECOVERY ASSOCIATES,
L.L.C.,
Defendants.

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Civil Action No.
15-14017-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises from allegations that defendants made
unsolicited telemarketing calls to plaintiff’s telephone numbers
without his consent and in violation of federal and state
consumer protection laws.
Pending before the Court are two motions to dismiss and
plaintiff’s motion to amend the amended complaint.

For the

reasons that follow, the motion to dismiss by defendant Revenue
Assistance Corporation (“Revenue”) will be allowed, the motion
to dismiss by defendant Frontier Communications (“Frontier”)
will be allowed, in part, and denied, in part, and the motion to
amend by plaintiff will be allowed, in part, and denied, in
part.
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I.

Background and procedural history
Plaintiff Paul Jones (“Jones” or “plaintiff”) is a pro se

litigant and a Massachusetts resident.

He claims to have

registered various telephone numbers, including [phone],
[phone], [phone], [phone] and (800) 5076668, under his name and through a “Voice over IP” (“VoIP”)
service provider.1

He asserts that he has registered all five

numbers on either the federal or state “Do Not Call” list.
Defendant Revenue is a telemarketing company which,
according to plaintiff, is not registered to do business in
Massachusetts and has its “usual” place of business in Ohio.
Revenue purportedly placed multiple unsolicited telephone calls
to plaintiff’s numbers at [phone], [phone],
[phone] and [phone].
Defendant Frontier is a large telecommunications company
which allegedly has its principal place of business in
Connecticut.

Plaintiff asserts that Frontier placed multiple

unsolicited calls to plaintiff’s number at [phone].
In December, 2015, plaintiff initiated this action by
filing a verified complaint alleging that Revenue and Frontier
used “automatic dialing systems” to make telemarketing phone

A VoIP-registered telephone line “allows a person to make voice calls using
a broadband Internet connection instead of a regular (or analog) telephone
line”. Karle v. Sw. Credit Sys., 2015 WL 5025449, at *2 n.4 (D. Mass. June
22, 2015).
1

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calls to him in violation of the Telephone Consumer Protection
Act (“TCPA”) at 47 U.S.C. § 227, et seq., the Massachusetts
Telemarketing Solicitation Act (“MTSA”) at M.G.L. c. 159C, § 1,
et seq. and the Massachusetts consumer protection law at M.G.L.
c. 93A, § 2 (“Chapter 93A”).

Plaintiff amended his complaint

shortly thereafter to name three additional defendants and
assert a new claim pursuant to the Fair Debt Collection
Practices Act (“FDCPA”) at 15 U.S.C. § 1629, et seq.
Revenue and Frontier each moved to dismiss the claims
against them in January, 2016.

Plaintiff reached settlements

with two of the three remaining defendants and moved for leave
to file a second amended verified complaint.

The proposed

second amended complaint 1) names only Revenue and Frontier as
defendants, 2) reorganizes the allegations with respect to the
TCPA, MTSA and Chapter 93A claims and 3) omits the FDCPA claims.
The Court notes that, because plaintiff has chosen not to
pursue his claims against Portfolio Recovery Associates, L.L.C.
(“Portfolio”) in the proposed second amended complaint, the
claims against Portfolio will be dismissed.
II.

Revenue’s motion to dismiss and plaintiff’s motion to amend
A.

Legal standards

To survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6), a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
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on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007).

The court may consider documents incorporated by

reference, matters of public record and other matters subject to
judicial notice. Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir.
2008).

In assessing the merits of the motion, the court must

accept all factual allegations in the complaint as true and draw
all reasonable inferences in the plaintiff's favor. Santiago v.
Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011).

Threadbare

recitals of the legal elements, supported by mere conclusory
statements, do not suffice to state a cause of action. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
With respect to amendments, the court has broad discretion
under Fed. R. Civ. P. 15(a)(2) to allow the plaintiff to amend
his pleadings and “should freely give leave when justice so
requires”. United States ex rel. Gagne v. City of Worcester, 565
F.3d 40, 48 (1st Cir. 2009).

Courts may deny such leave to

amend for reasons such as “undue delay, bad faith, futility, and
the absence of due diligence on the movant’s part”. Palmer v.
Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006).

In

determining futility, the court applies the same standard which
applies to motions to dismiss under Rule 12(b)(6). Adorno v.
Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).

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B.

Application

Revenue seeks to dismiss the amended complaint for failure
to state a claim based upon the doctrine of res judicata, the
“prior pending action” doctrine, MTSA standing and plaintiff’s
failure to comply with minimal pleading requirements.
1.

Res judicata and the MTSA claim against Revenue

Under the doctrine of res judicata, a final judgment on the
merits of a previously filed action precludes the parties from
re-litigating issues that were, or could have been, raised in
that prior action. Perez v. Volvo Car Corp., 247 F.3d 303, 311
(1st Cir. 2001).

The doctrine applies if there is 1) a final

judgment on the merits in the earlier action, 2) “sufficient
identicality” between the causes of action asserted in the
earlier and later actions and 3) “sufficient identicality”
between the parties in the two actions. Id.
If a plaintiff moves in the earlier action to amend the
complaint and then chooses not to appeal the denial of that
motion, res judicata precludes him from attempting to litigate
in the later action the claims which he unsuccessfully sought to
add in the earlier action. Hatch v. Trail King Indus., Inc., 699
F.3d 38, 45 (1st Cir. 2012).
A review of the pleadings in the public record indicates
that res judicata prevents plaintiff from asserting his MTSA
claim against Revenue in this action.
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In 2014, plaintiff initiated an earlier action in another
session of the Court alleging that Revenue made several
unsolicited telephone calls to him despite his repeated requests
for the calls to stop.

The amended complaint in the earlier

action asserted FDCPA and TCPA claims against Revenue.
Plaintiff moved to amend the amended complaint in the earlier
action to add MTSA and Chapter 93A claims against Revenue with
respect to calls placed to his numbers at [phone],
[phone], [phone] and [phone].

The

magistrate judge in the 2014 case denied plaintiff’s motion to
amend as futile. Jones v. Experian Info. Sols., Inc., 141 F.
Supp. 3d 159, 161 (D. Mass. 2015).
Plaintiff did not appeal that denial of leave to amend by
the magistrate judge to the district judge. See Pagano v. Frank,
983 F.2d 343, 346 (1st Cir. 1993) (internal quotation marks
omitted)(“A party displeased by a magistrate's order on a
nondispositive motion must serve and file objections to the
order within ten days . . . [otherwise] he may not thereafter
assign as error a defect in the magistrate judge’s order[.]”).
The denial of leave thus qualifies as a final judgment on the
merits of the MTSA claim in the earlier action. See Hatch, 699
F.3d at 45.
The Court concludes that res judicata bars the MTSA claim
against Revenue in the instant action with respect to calls
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allegedly placed to [phone], [phone], (978) 4256336 and [phone].

The Court need not consider Revenue’s

challenge to plaintiff’s standing to bring the MTSA claim
because that finding is dispositive.

Accordingly, Revenue’s

motion to dismiss the MTSA claim will be allowed.
The proposed second amended complaint asserts no
allegations that would overcome the finding that res judicata
precludes plaintiff’s MTSA claim against Revenue.

Accordingly,

plaintiff’s motion to amend the amended complaint with respect
to the MTSA claim against Revenue will be denied as futile.
2.

The “prior pending action” doctrine and the TCPA
claims against Revenue

The “prior pending action” doctrine provides that, to
ensure judicial efficiency and avoid inconsistent judgments,
the pendency of a prior action, in a court of competent
jurisdiction, between the same parties, predicated upon
the same cause of action and growing out of the same
transaction, and in which identical relief is sought,
constitutes good ground for abatement of the later suit.
Quality One Wireless, LLC v. Goldie Grp., LLC, 37 F. Supp. 3d
536, 540-41 (D. Mass. 2014).

The doctrine permits a court to

stay or dismiss the later action if 1) there is an “identity of
issues” between the earlier and later actions and 2) the earlier
action will determine the controlling issues in the later
action. Id. at 541.

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An examination of the pleadings in the public record
establishes that the “prior pending action” doctrine bars
plaintiff’s TCPA claims against Revenue in this action.
The TCPA claims against Revenue in both the 2014 action and
this action concern unsolicited calls by Revenue to plaintiff’s
VoIP-registered telephone numbers.

Revenue filed a motion for

judgment on the pleadings in the 2014 case with respect to the
TCPA claims against it.

The magistrate judge issued a Report

and Recommendation, which the district judge has not yet
accepted or adopted, on the pending motion for judgment on the
pleadings in April, 2016 and plaintiff filed an objection.

The

resolution of Revenue’s motion by the district judge in the 2014
case will determine whether Revenue’s calls in the instant case
qualify as “commercial calls made without conveying an
unsolicited advertisement” which are exempt from TCPA liability
under 47 C.F.R. § 64.1200(a)(3)(iii).
The Court concludes that the “prior pending action”
doctrine bars plaintiff’s TCPA claims against Revenue in this
action.

Plaintiff’s arguments to the contrary are inapposite.

Accordingly, Revenue’s motion to dismiss the TCPA claims will be
allowed and the claims will be dismissed without prejudice.
The proposed second amended complaint adds no allegations
that would overcome the finding that the “prior pending action”
doctrine warrants dismissal without prejudice of plaintiff’s
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TCPA claims against Revenue in the instant case.

Accordingly,

plaintiff’s motion to amend the amended complaint with respect
to the TCPA claims against Revenue will be denied as futile.
3.

FDCPA claim against Revenue

This Court will dismiss the FDCPA claim against Revenue in
the amended complaint because plaintiff fails to allege that he
owes a debt to Revenue that would qualify him for protection
under the FDCPA.

Indeed, plaintiff concedes in his opposition

that “there is no debt owed”.

The Court notes that plaintiff

elected not to pursue the FDCPA claim against Revenue in the
proposed second amended complaint.
Accordingly, Revenue’s motion to dismiss the FDCPA claim in
the amended complaint will be allowed.
4.

Chapter 93A claim against Revenue

Chapter 93A prohibits “unfair or deceptive acts or
practices in the conduct of any trade or commerce” and provides
a private cause of action to a person injured by such acts or
practices. M.G.L. c. 93A §§ 2, 9.

A Chapter 93A claim must

allege a practice that 1) is within the penumbra of some common
law, statutory or other established concept of unfairness, 2) is
immoral, unethical, oppressive or unscrupulous and 3) causes
substantial injury to consumers, competitors or other business
entities. Mass. Eye & Ear Infirmary v. QLT Phototherapeutics,
Inc., 412 F.3d 215, 243 (1st Cir. 2005).
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The Court will dismiss the Chapter 93A claim against
Revenue given the dismissal of all other claims against it and
plaintiff’s failure to allege, in the amended or proposed second
amended complaint, that Revenue’s alleged conduct falls within
the scope of some other established concept of unfairness. See
id.
Accordingly, the Court will allow Revenue’s motion to
dismiss in its entirety.

Plaintiff’s motion to amend with

respect to the Chapter 93A claim against Revenue will be denied
as futile.
III. Frontier’s motion to dismiss and plaintiff’s motion to
amend
Frontier moves to dismiss the claims against it under Fed.
R. Civ. P. 12(b)(2) for lack of personal jurisdiction and under
Rule 12(b)(6) for failure to state a claim.

In the alternative,

it seeks to compel a more definite statement of the claims under
Fed. R. Civ. P. 12(b)(5).
A.

Motion to dismiss for lack of personal jurisdiction
1.

Legal standard

To survive a motion to dismiss for lack of personal
jurisdiction, the plaintiff must demonstrate that jurisdiction
is both statutorily authorized and consistent with the Due
Process Clause of the United States Constitution. Hannon v.
Beard, 524 F.3d 275, 280-82 (1st Cir. 2008).

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The plaintiff must

proffer evidence of the alleged jurisdictional facts. Bluetarp
Fin., Inc. v. Matrix Const. Co., Inc., 709 F.3d 72, 79 (1st Cir.
2013).

Verified complaints signed under the pains and penalties

of perjury are treated as affidavits. Provanzano v. Parker, 796
F. Supp. 2d 247, 254-55 (D. Mass. 2011).

The court will accept

the plaintiff’s “properly documented evidentiary proffers” as
true and construe them in the light most favorable to his
jurisdictional claim. Bluetarp, 709 F.3d at 79.

The court will

also consider uncontradicted facts alleged by the defendant. Id.
Because the Massachusetts long-arm statute reaches to the
full extent allowed by the Constitution, the Court may proceed
directly to the constitutional analysis. Hannon, 524 F.3d at
280.

Due process requires that the defendant have “minimum

contacts” with the forum state such that “the maintenance of the
suit does not offend traditional notions of fair play and
substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)(internal quotation marks omitted).
Courts can exercise either general or specific personal
jurisdiction over an out-of-state defendant. Mass. Sch. of Law
at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.
1998).

General jurisdiction exists when the defendant engaged

in “continuous and systematic activity, unrelated to the suit,
in the forum state”. Id.

Specific jurisdiction exists when

there is a “demonstrable nexus” between the plaintiff’s claims
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and the defendant’s forum-based activities “such as when the
litigation itself is founded directly on those activities”. Id.
The tripartite test for specific jurisdiction requires that
1) the claims arise from or are related to the defendant’s
contacts with the forum state, 2) the defendant purposefully
availed itself of the laws of the forum state and 3) the
exercise of jurisdiction is reasonable under the circumstances.
Bluetarp, 709 F.3d at 80-83.

Under the second requirement, the

defendant’s in-state contacts must
represent a purposeful availment of the privilege of
conducting activities in the forum state, thereby
invoking the benefits and protections of that state's
laws and making the defendant's presence before the
state's courts foreseeable.
Id. at 82.

To assess reasonableness under the third

requirement, courts apply the “gestalt factors” which include
1) the defendant’s burden of appearing in court, 2) the forum
state's interest in adjudicating the dispute, 3) the plaintiff's
interest in obtaining convenient and effective relief, 4) the
interstate judicial system's interest in efficient resolution
and 5) the common interests of all states in promoting
substantive social policies. Id. at 83.
2.

Application

The parties dispute whether Frontier is subject to general
and/or specific personal jurisdiction in this Court.

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With respect to general personal jurisdiction, plaintiff
proffers the verified amended complaint as evidence that
Frontier “regularly transact[s]” business in Massachusetts by
soliciting business in Massachusetts and selling products and
services to Massachusetts customers.
Frontier denies that it is subject to general personal
jurisdiction and claims that while it is “conceivable” that it
placed a call to a non-Massachusetts customer who happened to
receive the call in Massachusetts, it has no customers in
Massachusetts and does not regularly conduct business there.
With respect to specific personal jurisdiction, the
verified amended complaint asserts that plaintiff’s claims arise
out of Frontier’s conduct in placing unsolicited, commercial
calls to a number registered to him as a Massachusetts resident.
The amended complaint also alleges that Frontier placed those
calls to him intentionally, despite his repeated protestations
and his lack of a business relationship with Frontier,
indicating that Frontier acted voluntarily and created a
foreseeable possibility of being haled into court in
Massachusetts.
Although plaintiff does not directly address the
reasonableness of this Court’s assertion of personal
jurisdiction over Frontier, he declares in the verified amended
complaint that Frontier is “the largest communications company”
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providing services to rural areas, small towns and medium-sized
cities and serves 3.1 million customers in 27 states.

The Court

construes that declaration as an allegation that Frontier would
not be unduly burdened by appearing in court in Massachusetts.
Frontier responds that because it has no business
relationship with plaintiff and no customers in Massachusetts,
plaintiff’s claims did not arise out of its “limited customer
service activities that spilled over into Massachusetts” from
states in which it serviced clients.

It claims that any

contacts it made in Massachusetts were involuntary because it
does not control where its non-Massachusetts customers choose to
receive calls concerning their non-Massachusetts accounts.
Frontier contends that it could not reasonably foresee that it
would be “sued by non-existent customers in Massachusetts” and
submits that it would be unreasonable to subject it to personal
jurisdiction in every state in which its customers happened to
receive its calls.
After construing the verified amended complaint in the
light most favorable to plaintiff, as it must when assessing the
propriety of dismissal, the Court concludes that it has personal
jurisdiction over Frontier.

Plaintiff presents supported

allegations that his claims arise from the commercial calls that
Frontier intentionally made to him in Massachusetts and it is,
of course, more convenient for plaintiff to litigate those
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claims in his home state.

Although it may be inconvenient for

Frontier to defend against the claims in Massachusetts, that
burden is not unreasonable.

Furthermore, Massachusetts, similar

to all states, has an interest in adjudicating this dispute
because it involves unsolicited, commercial calls made to one of
its residents.
Accordingly, the Court will deny Frontier’s motion to
dismiss for lack of personal jurisdiction.
B.

Motion to dismiss for failure to state a claim
1.

TCPA claims

Counts 1 and 2 of the amended complaint purport to raise
TCPA claims asserting violations of 47 U.S.C. § 227(b)(1)
pursuant to the private rights of action provided in
§§ 227(b)(3) and (c)(5).
a.

Section 227(b)(1)(A)(iii)

Section 227(b)(1)(A)(iii) prohibits making a call using an
“automatic telephone dialing system or an artificial or
prerecorded voice” to a telephone number assigned to a cellular
telephone service, radio common carrier service or any service
pursuant to which the recipient is charged for the call.
§ 227(b)(1)(A)(iii).

An “automatic telephone dialing system” is

equipment with the capacity 1) to store or produce telephone
numbers to be called using a random or sequential number
generator and 2) to dial such numbers. § 227(a)(1).
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Exceptions

to liability apply if the call is made with the prior consent of
the recipient, for emergency purposes or for the sole purpose of
collecting a debt owed to or guaranteed by the federal
government. § 227(b)(1)(A)(iii).
The verified amended complaint sets forth a viable TCPA
claim under § 227(b)(1)(A)(iii).

Plaintiff alleges that

Frontier placed non-emergency calls to him, without consent, at
[phone] using a computerized recording which informed him
of “State funded telephone financial discount programs” and
asked him to call back.

Plaintiff asserts that those calls

exhibited the “earmarks of an ATDS and or [sic] Predictive
Dialer, with dead air 3-5 seconds before a live agent came on”.
He claims that he received multiple calls in a one-year period,
declares that he was charged ten cents by his service company
for every call received by him and submits documentation to
corroborate those charges.

He proclaims that the calls were not

made for the purposes of debt collection because he did not owe
any debt.
The Court is unpersuaded by Frontier’s argument that the
amended complaint failed to put it on notice as to what “type”
of telephone number it allegedly called.

The amended complaint

asserts that Frontier placed calls to plaintiff’s VoIPregistered number at [phone].

That is sufficient to put

Frontier on notice of the claims against it.
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According, plaintiff’s TCPA claim pursuant to
§ 227(b)(1)(A)(iii) will survive dismissal.
b.

Section 227(b)(1)(B)

Section 227(b)(1)(B) of Title 47 of the United States Code
makes it unlawful to initiate a telephone call to any
residential telephone line using an artificial or prerecorded
voice to deliver a message unless certain regulatory rules or
orders exempt the call. § 227(b)(1)(B).
Although plaintiff alleges that the [phone] number
is registered in his name, he does not assert in the amended or
proposed second amended complaint that [phone] is a
residential, rather than business, telephone number.

The TCPA

claims will be dismissed to the extent that plaintiff purports
to assert a violation of § 227(b)(1)(B).
c.

Section 227(b)(1)(C)

Section 227(b)(1)(C) of the TCPA bars the usage of any
telephone facsimile machine, computer or other device to send an
unsolicited advertisement to a telephone facsimile machine
unless 1) the sender and recipient have an established business
relationship, 2) the sender obtained the number of the telephone
facsimile machine a) through voluntary communications with the
recipient within the context of the established business
relationship, b) from a directory, advertisement or website to
which the recipient voluntarily agreed to make the number
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available for public distribution or 3) the advertisement
complies with certain notice requirements. § 227(b)(1)(C).
Plaintiff has not stated a claim under § 227(b)(1)(C)
because he has not alleged, in the amended complaint or proposed
second amended complaint, that Frontier sent unsolicited
advertisements to his fax machine.
The Court thus finds that the amended complaint properly
asserts TCPA claims against Frontier under § 227(b)(1)(A)(iii)
but not under §§ 227(b)(1)(B) or (b)(1)(C).

The proposed second

amended complaint, the filing of which Frontier does not oppose
on sufficiency grounds, simply reorganizes plaintiff’s factual
allegations and is substantially the same as the amended
complaint.
Accordingly, the Court will deny Frontier’s motion to
dismiss for failure to state a TCPA claim with respect to
§ 227(b)(1)(A)(iii) but allow it with respect to §§ 227(b)(1)(C)
and (b)(1)(B).

The Court will also allow plaintiff’s motion to

amend with respect to the surviving TCPA claim.
2.

MTSA claims

Count 3 of the amended complaint purportedly asserts an
MTSA claim against Frontier pursuant to the private right of
action set forth in M.G.L. c. 159C, § 8(b).
The MTSA prohibits making “unsolicited telephone sales
calls” to a consumer whose telephone number appears on a “do-18-

not-call” list. Experian, 141 F. Supp. 3d at 162.

A consumer is

an individual who is a Massachusetts resident and prospective
recipient of consumer goods or services. M.G.L. c. 159C, § 1.
The Commonwealth maintains a do-not-call list which
“incorporates the relevant part of the Federal Communications
Commission’s national database”. Experian, 141 F. Supp. 3d at
163.
Frontier seeks dismissal of the MTSA claim because, it
claims, plaintiff does not allege that [phone] is a
residential telephone line.

Frontier cites a decision from the

2014 case previously initiated by plaintiff for the proposition
that MTCA claims should be dismissed when there is no allegation
that the telephone number at issue “was both registered to an
individual and on the state or federal do-not-call list”. Id.
That argument is misplaced.

Plaintiff asserts in the

amended and proposed second amended complaints that Frontier
placed calls to his [phone] number.

The proposed second

amended complaint further submits that the [phone] number
is a VoIP number which “has been listed on the do-not-call list
for several years” and is registered to him as a consumer.

The

allegations in the proposed second amended complaint, the filing
of which Frontier opposes only on personal jurisdiction grounds,
sufficiently state an MTSA claim with respect to the
registration status of the [phone] number.
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Frontier next asserts that plaintiff sets forth
“incongruous allegations” because the amended complaint alleges
that the [phone] number is a VoIP number while the
exhibits show that plaintiff received calls to that number on
his cellular telephone.

After construing the amended complaint

in the light most favorable to plaintiff, the Court concludes
that there is no such incongruity. It is reasonable to infer
that plaintiff received calls to the VoIP number, which operates
in reliance upon an internet connection, on his cellular
telephone which can have internet access.
Frontier further seeks dismissal of the MTSA claim to the
extent that it claims that Frontier placed solicitation calls to
plaintiff without disclosing the required information.

Frontier

argues that the alleged calls were purely informational and do
not qualify as solicitation calls.

The amended and proposed

second amended complaints, however, contain allegations, which
this Court must accept at this stage as true, that Frontier
placed “sales” calls to plaintiff’s [phone] number.
Accordingly, plaintiff’s motion to amend will be allowed
with respect to the MTSA claim.

Frontier’s motion to dismiss

the MTSA claim in the amended complaint will be denied as moot.
3.

FDCPA claim

Count 5 of the amended complaint purports to assert an
FDCPA claim against Frontier.

Plaintiff concedes that he does
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not owe any debt that would qualify him for protection under the
FDCPA.

Plaintiff also chose not to pursue the FDCPA claim

against Frontier in the proposed second amended complaint.
Accordingly, Frontier’s motion to dismiss the FDCPA claim
in the amended complaint will be allowed.
4.

Chapter 93A claim

Count 4 of the amended complaint raises a Chapter 93A
claim.

Frontier seeks dismissal based upon plaintiff’s “strap-

hanging of a Chapter 93A violation on [deficient] TCPA and MTSA”
claims.

Because the Court has found that some TCPA and MTSA

claims survive dismissal, Frontier advances no viable argument
for dismissing the Chapter 93A claim.
Accordingly, Frontier’s motion to dismiss the Chapter 93A
claim will be denied.

Plaintiff’s motion to amend will be

allowed because Frontier opposes that motion only on personal
jurisdiction grounds and advances no other arguments for denial.
C.

Motion for a more definite statement

Alternatively, Frontier moves under Fed. R. Civ. P. 12(e)
for a more definite statement of the asserted claims which
survive dismissal.

Such a motion should be allowed only where a

complaint is “so vague or ambiguous that a party cannot
reasonably prepare a response.” Fed. R. Civ. P. 12(e).

That

rule “is designed to remedy unintelligible pleadings, not merely

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to correct for lack of detail.” Ivymedia Corp. v. iLIKEBUS,
Inc., 2015 WL 4254387, at *6 (D. Mass. July 13, 2015).
Frontier’s motion is inapt because the Court has already
concluded that plaintiff adequately pled the surviving TCPA,
MTSA and Chapter 93A claims concerning calls that Frontier
allegedly made to plaintiff’s registered VoIP number at
[phone].

Accordingly, Frontier’s motion for a more

definite statement will be denied.

ORDER

For the reasons set forth in the Memorandum,
1)

the motion to dismiss the amended complaint by
defendant Revenue Assistance Corporation is ALLOWED,

2)

the motion to dismiss the amended complaint by
defendant Frontier Communications is, with respect to
the claims under §§ 227(b)(1)(B) and (b)(1)(C) of the
Telephone Consumer Protection Act and under the Fair
Debt Collection Practices Act, ALLOWED; but is
otherwise DENIED, and

3)

the motion to amend the amended complaint by plaintiff
is, with respect to the claims against Revenue
Assistance Corporation, DENIED as futile; but, with
respect to the surviving claims against Frontier
Communications, ALLOWED.
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In addition, plaintiff’s claims against defendant Portfolio
Recovery Associates, L.L.C. are, in light of his decision not to
pursue the claims in the proposed second amended complaint,
DISMISSED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated July 14, 2016

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