Reinert v. Power Home Remodeling Group, LLC

Filing 16

ORDER denying 7 Motion to Dismiss. Signed by District Judge Arthur J. Tarnow. (MLan)

Case 2:19-cv-13186-AJT-RSW ECF No. 16, PageID.107 Filed 11/17/20 Page 1 of 8

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEAH REINERT,
Case No. 19-13186
Plaintiff,
SENIOR U. S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
POWER HOME REMODELING GROUP,
LLC,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendant.
/
ORDER DENYING DEFENDANT’S MOTION TO DISMISS [7]
On October 29, 2019, Plaintiff Leah Reinert, commenced this class action suit
alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227,
(“TCPA”) against Defendant Power Home Remodeling Group, LLC. Defendant
filed a Motion to Dismiss [7] on December 18, 2019. Plaintiff filed a Response [11]
on January 21, 2020. For the reasons discussed below, Defendant’s motion is
DENIED.
FACTUAL BACKGROUND
Plaintiff and Defendant provide two different recitations of the facts. Below
is each of their accounts.

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I.

Plaintiff’s Complaint

In late March or early April 2018, Plaintiff provided her telephone number to
Defendant at a booth in Sam’s Club. (Compl. ¶ 39). Plaintiff claims that although
she never provided prior written consent, Defendant began calling Plaintiff using an
automatic telephone dialing system. (Id. at ¶ 40-41, 51). Defendant called Plaintiff
on April 10 and 18 of 2018. (Id. at ¶ 42). Plaintiff claims that she made a do-not-call
request on both calls. (Id.). Despite this, Defendant continued to call her. Plaintiff
claims that on the April 18th call, Defendant told her that it would not honor her donot-call request unless it was in writing. (Id. at ¶ 43). Plaintiff claims she received
between three to four telemarketing calls from Defendant from April 18, 2018
through May 18, 2018. (Id. at ¶ 45). Plaintiff’s Complaint includes similar
allegations against Defendant from other consumers. (Id. at ¶ 48).
Plaintiff claims she has been on the national do-not-call registry since May
11, 2011. (Id. at ¶ 62). She also claims that Defendant does not (1) maintain a written
do-not-call policy, (2) train its telemarketers to use a do-not-call policy, (3)
document do-not-call requests, or (4) honor such requests. (Id. at ¶ 56-58).
Plaintiff alleges Defendant Power Home Remodeling Group violated three
provisions of the TCPA: (1) Section 227(b), which requires entities to receive
express consent to place telemarketing calls to cellular telephone customers while
using an automatic dialing system, (2) Federal Communication Commission
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(“FCC”) regulation 47 CFR 64.1200(d), which requires entities to establish policies
and procedures for maintaining and honoring an internal company specific do-notcall list, and (3) FCC regulation 47 CFR 64.1200(c)(1-2), which prohibits entities
from initiating “telephone solicitation” with a residential telephone subscriber on the
national do-not-call registry. (Id. at ¶ 85-105).
Each alleged violation corresponds to a different class: (1) Dialer Class:
persons who received an automatic dialing system telemarketing call from
Defendant, without giving prior express written consent, (2) Policy Class: persons
who received two or more telemarketing calls from Defendant within a 12-month
period, and (3) Registry Class: persons on the national do-not-call registry who
received two or more telemarketing calls from Defendant within a 12 month period.
(Id. at ¶ 67).
II.

Defendant’s Motion to Dismiss

Defendant claims that Plaintiff welcomed and consented to their calls. For
support, Defendant attaches transcripts of five conversations between Plaintiff and
Defendant’s agent. The first conversation occurred on April 9, 2018 while Plaintiff
was visiting Defendant’s booth at Sam’s Club. (ECF No. 7-2, PageID. 66). The
transcript shows that after supplying her contact information, Plaintiff consented to
calls and texts from Defendant using an automatic telephone dialing system and
prerecorded messages. Id.
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Mike [Defendant’s agent]: Perfect. Just for the numbers you provided, we
do need to confirm that we have your consent to call or text you regarding
our products and services by using automated dialing technology and
occasionally pre-recorded messages. And your consent is not required to
purchase any services from us, Ms. Leah. Can you please confirm by
saying yes?
Leah: Yes.
Id. Plaintiff and Defendant then scheduled a free estimate for new siding at Plaintiff’s
home for 4 p.m. the next day. Id. at 67. On April 10, 2018, Plaintiff called Defendant
to cancel the 4 p.m. appointment and she agreed to call back when she could reschedule. Id. at 73. On April 18, 2018, Defendant called Plaintiff to re-schedule an
appointment. Id. at 75. Plaintiff informed the agent that she wanted to “wait awhile”
before rescheduling. Id. at 77. The last call transcript that Defendant provides
occurred on May 18, 2018. Defendant called Plaintiff once again asking to schedule
a free estimate. Id. at 79. Plaintiff stated that she was “going to cancel that for a
while” due to funding and her husband’s work schedule. Id.
None of these transcripts indicate that Plaintiff revoked her consent to be
called by Defendant, told Plaintiff to stop calling her, or made a do-not-call request.
Plaintiff does not dispute the contents of these transcripts. She merely claims that
Defendant failed to include records of additional phone calls which corroborate her
allegations.

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LEGAL STANDARDS
Defendants move to dismiss the Plaintiff’s Complaint pursuant to Fed. R. Civ.
P. 12(b)(6). “To survive a motion to dismiss, [Plaintiffs] must allege ‘enough facts
to state a claim to relief that is plausible on its face.’” Traverse Bay Area
Intermediate Sch. Dist. v. Mich. Dep’t of Educ., 615 F.3d 622, 627 (6th Cir. 2010)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). On a Rule 12(b)(6)
motion to dismiss, the Court must “assume the veracity of [Plaintiffs’] well-pleaded
factual allegations and determine whether [they are] entitled to legal relief as a matter
of law.” McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). In addition to the Complaint, the Court
may consider “exhibits attached to defendant’s motion to dismiss” such as the call
transcripts between the parties, because “they are referred to in the Complaint and
are central to the claims contained therein.” Brent v. Wayne Cty. Dep't of Human
Servs., 901 F.3d 656, 695 (6th Cir. 2018), (quoting Bassett v. Nat’l Collegiate
Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008)).
ANALYSIS
Defendant argues that Plaintiff has failed to state a TCPA violation, because
she consented to the phone calls and did not request to placed on a do-not-call list.
The Court agrees with the former argument, disagrees with the latter, and concludes

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that Plaintiff has sufficiently alleged her claims to survive dismissal and pursue
discovery.
The TCPA prohibits calls “using any automatic telephone dialing system or
an artificial or prerecorded voice” to any “cellular telephone service” except when
made with the prior express consent of the called party. 47 U.S.C. § 227
(b)(1)(A)(iii). Prior express consent occurs when “a party who gives an ‘invitation
or permission to be called at [a certain] number’ has given its express consent with
respect to that number.” Hill v. Homeward Residential, Inc., 799 F.3d 544, 551 (6th
Cir. 2015) (quoting In the Matter of Rules & Regulations Implementing the Tel.
Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (1992)). This consent maybe
be given in different forms, including verbally and in writing. See Fober v. Mgmt. &
Tech. Consultants, LLC, 886 F.3d 789, 793 (9th Cir. 2018) (citing In re GroupMe,
Inc./Skype Commc'ns, 29 F.C.C. Rcd. 3442, 3444 (2014)) (“the TCPA does not
require any one method for obtaining ‘prior express consent.’). However, once
given, this consent may be revoked. In the Matter of Rules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961 (2015) (“a
called party may revoke consent at any time and through any reasonable means. A
caller may not limit the manner in which revocation may occur”); see also Rodriguez
v. Premier Bankcard, LLC, No. 3:16CV2541, 2018 WL 4184742 (N.D. Ohio Aug.

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31, 2018); see also Schweitzer v. Comenity Bank, 866 F.3d 1273, 1275, 1280 (11th
Cir. 2017).
Plaintiff argues that the consent she gave to Defendant’s agent during her first
phone call at Sam’s Club was invalid, because it was not informed by a litany of
disclosures under the E-Sign Act. See 15 U.S.C. § 7001(c). However, the E-Sign Act
only requires that consent be accompanied by certain disclosures under specific
statutes. Consumer disclosures must be made to obtain an electronic record of
consent “if a statute, regulation, or other rule of law requires that information relating
to a transaction or transactions in or affecting interstate or foreign commerce be
provided or made available to a consumer in writing.” 15 U.S.C. § 7001 (C)(1).
However, Plaintiff has not shown that the TCPA is one of them. See Morris v.
Modernize, Inc., No. AU-17-CA-00963-SS, 2018 WL 7076744, at *3 (W.D. Tex.
Sept. 27, 2018) (finding that the E-Sign Act disclosures do not apply to the TCPA).
Therefore, Plaintiff’s consent was valid. However, further discovery will reveal
whether she revoked this consent and/or asked to be placed on an internal do-notcall list.
Plaintiff alleges that she had several conversations with Defendant where she
made do-not-call requests that were not honored. Despite Defendant’s transcripts,
the Court cannot confirm, without full discovery, whether Defendant has presented

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all of the calls between the parties, whether Defendant trains its telemarketers to use
a do-not-call policy, and whether it documents and honors do-not-call requests.
Assuming the veracity of Plaintiff’s factual allegations, the Court denies the Motion
to Dismiss in order to allow the parties to engage in discovery which will, inter alia,
confirm or deny the veracity of Defendant’s transcripts, unearth transcripts of the
remaining alleged phone calls, if any, and discover internal training and
documentation policies. Therefore, Plaintiff has sufficiently alleged plausible TCPA
violations.
CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s Motion to Dismiss [7] is DENIED.
SO ORDERED.

Dated: November 17, 2020

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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