Dobronski v. Baid et al

Filing 22

OPINION AND ORDER Denying Defendants' Motion to Dismiss 15 . Signed by District Judge George Caram Steeh. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK W. DOBRONSKI,
Plaintiff,

Case No. 24-10297

v.

Hon. George Caram Steeh

RATAN BAID and VIVEK BAID,
d/b/a ELD MANDATE,
Defendants.
_____________________________/

OPINION AND ORDER DENYING
DEFENDANTS’ MOTION TO DISMISS (ECF NO. 15)
Before the court is Defendants’ motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). For the reasons explained below,
Defendants’ motion is denied.
BACKGROUND FACTS
Plaintiff Mark W. Dobronski, appearing pro se, brought this action
pursuant to the Telephone Consumer Protection Act (“TCPA”) and Michigan
Home Solicitation Sales Act (“MHSSA”). He alleges that his residential and
cellular phones have been “besieged” by intrusive telemarketing calls,
although his residential telephone number, (734) ***-2323, is registered on
the national Do Not Call list. ECF No. 1 at ¶¶ 31-32. He is charged on a
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“per call and per minute basis” for calls to his residential telephone number.
Id. at ¶ 33.
The complaint alleges that Defendants Ratan Baid and Vivek Baid
are owners of ELD Mandate, a partnership that markets products and
services to truck drivers. ECF No. 1 at ¶¶ 6, 55. ELD Mandate, itself or
through third parties, engages in telemarketing using automated telephone
dialing systems to solicit customers. Id. at ¶¶ 57, 66, 73. Plaintiff alleges
that he received twenty-six calls from telemarketers representing ELD
Mandate and that the calls continued after he requested to be taken off
their list. When he answered each call, there was a “click” sound and a fivesecond delay, which he contends is a characteristic of an automated
telephone dialing system. Id. at ¶¶ 65-66. During one call, Plaintiff provided
false information (a “canary trap”) in order to determine the source of the
calls. Id. at ¶¶ 81-87. Subsequently, his financial institution informed him
that ELD Mandate attempted to charge his credit card account. Id. at ¶ 87.
During several of the calls, the telemarketers stated they represented ELD
Mandate. Id. at 65, 77, 93, 102, 112. Plaintiff identified other calls as
originating on behalf of ELD Mandate based upon phone number calling.
Plaintiff’s complaint alleges the following causes of action: Count I,
violation of the TCPA based upon an unauthorized autodialer call (47 C.F.R.
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§ 64.1200(a)(1)(iii)); Count II, violation of the TCPA for calling a number on
Do Not Call registry (47 C.F.R. § 64.1200(c)(2)); Count III, violation of the
TCPA for failing to honor do-not-call demand (47 C.F.R. § 64.1200(d)(6));
Count IV, violation of the TCPA for failing to provide opt-out capability (47
C.F.R. § 64.1200(a)(7)(i); Count V, violation of the TCPA for failure to
maintain or provide a written policy for a do-not-call list (47 C.F.R. §
64.1200(d)(1)); and Count VI, violation of the MHSSA, M.C.L. §
445.111a(5). Defendants seek dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6).
LAW AND ANAYSIS
I.

Standard of Review
To survive a motion to dismiss, a plaintiff must allege facts that, if

accepted as true, are sufficient “to raise a right to relief above the
speculative level” and to “state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). The complaint “must contain either
direct or inferential allegations respecting all the material elements to
sustain a recovery under some viable legal theory.” Advocacy Org. for
Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 319 (6th Cir.
1999) (internal quotation marks omitted).
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When ruling on a motion to dismiss, the court may “consider the
Complaint and any exhibits attached thereto, public records, items
appearing in the record of the case and exhibits attached to defendant's
motion to dismiss so long as they are referred to in the Complaint and are
central to the claims contained therein.” Bassett v. Nat’l Collegiate Athletic
Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). The Sixth Circuit has cautioned
that “[c]ourts may consider public records for the truth of the statements
contained within them only when the ‘contents prove facts whose accuracy
cannot reasonably be questioned.’” Elec. Merchant Sys. LLC v. Gaal, 58 F.
4th 877, 883 (6th Cir. 2023) (quoting Passa v. City of Columbus, 123 Fed.
Appx. 694, 697 (6th Cir. 2005)).
II.

Violations of Local Rules
Plaintiff argues that Defendants’ motion should be denied because

they did not comply with LR 7.1, requiring the moving party to seek
concurrence, or serve him with the motion papers. It appears that Plaintiff
had actual notice of the motion and that Defendants’ counsel attempted to
contact him before filing. In light of the lack of actual prejudice to Plaintiff
and the court’s preference for deciding cases on the merits, the court is not
inclined to deny Defendants’ motion on this basis. The court notes that it
expects both counsel and unrepresented parties to comply with the rules
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and the court’s civility principles. See Administrative Order 08-AO-009
(E.D. Mich. 2008).
III.

Direct or Vicarious Liability
Defendants argue that all of Plaintiff’s claims should be dismissed

because he has failed to allege direct or vicarious liability on the part of
Ratan Baid or Vivek Baid, as the complaint does not allege that they
actually made or directed the calls. The TCPA makes it unlawful “to make
any call . . . using any automatic telephone dialing system or an artificial or
prerecorded voice . . . to any telephone number assigned to a . . . cellular
telephone service . . . or any service for which the called party is charged
for the call. . . .” 47 U.S.C. § 227(b)(1)(A)(iii); see also 47 U.S.C. §
227(c)(5). Although a defendant “may not have ‘made’ or ‘initiated’ the calls
or text messages that actually are placed by third parties, the FCC
concluded that such defendants still ‘may be held vicariously liable . . . for
TCPA violations . . . under a broad range of [federal common-law] agency
principles, including not only formal agency, but also principles of apparent
authority and ratification.” Keating v. Peterson’s Nelnet, LLC, 615 Fed.
Appx. 365, 371-72 (6th Cir. 2015) (quoting Declaratory Ruling 13–54, In the
Matter of the Joint Petition Filed by Dish Network, LLC, the United States of
America, and the States of California, Illinois, North Carolina, and Ohio for
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Declaratory Ruling Concerning the Telephone Consumer Protection Act
(TCPA) Rules, 28 FCC Rcd. 6574 (May 9, 2013) (Dish Network)).
Keeping in mind the procedural posture of this case, Plaintiff must
allege sufficient factual content to plausibly claim that Defendants are
vicariously liable for the calls; he is not required to prove his case at this
stage. He alleges that callers identified themselves as representing ELD
Mandate, that calls were placed on behalf of ELD Mandate based upon the
phone number calling, and that ELD Mandate attempted to charge his
credit card. These allegations are sufficient to infer that ELD Mandate was
responsible for the calls. See Dobronski v. Fam. First Life, LLC, No. 22-CV12039, 2024 WL 1342668, at *8 (E.D. Mich. Mar. 29, 2024); Hartley-Culp v.
Green Tree Servicing, LLC, 52 F. Supp.3d 700, 704 (M.D. Pa. 2014)
(allegations sufficient when complaint stated that speaker was calling “on
behalf of Fannie Mae”). Plaintiff also alleges that ELD Mandate is a
partnership owned by Ratan Baid and Vivek Baid. “Generally, partners are
individually liable for torts committed by their firm or other partners when
they are acting within the scope of its business whether they personally
participate or not.” Doe v. Peterson, 784 F. Supp. 2d 831, 844 (E.D. Mich.
2011) (citing McIntyre v. Kavanaugh, 242 U.S. 138, 139, 37 S.Ct. 38, 61

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L.Ed. 205 (1916)). Under the circumstances, Plaintiff’s allegations plausibly
state a claim of vicarious liability against Defendants.
IV.

Counts I, II, III, V, and VI
Defendants argue that Counts I, II, III, V, and VI should be dismissed

because the alleged phone calls do not implicate the TCPA or MHSSA.
Generally, the statutes and regulations apply to calls to cellular telephones,
calls for which the recipient pays for the call, and residential telephone
subscribers. See 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200; M.C.L.
§§ 445.111a, 445.111b. Citing various publicly available databases,
Defendants contend that Plaintiff’s phone number, (734) ***-2323, is a
“VoIP phone number, a subset of internet telephony, administered by a
service called Bandwidth.com,” and that Plaintiff does not pay per call. ECF
No. 15 at PageID 74. Defendants also assert that this number is associated
with a business fax machine connected to Plaintiff’s companies, not a
cellular phone or residence.
Plaintiff responds that the information relied upon by Defendants is
“ancient history.” He states that the phone number at issue, although
previously a business number, was relocated to his personal fax machine
at his residence and if a call comes in from a non-fax number, he answers
it. He further asserts that his phone service is not provided by
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Bandwith.com, and that he is charged both on a per call and per minute
basis. See ECF No. 1 at ¶¶ 31-33.
Defendants contend that the information they gleaned from publicly
available internet databases, such as PartnerCarrier.com, AllBiz.com, and
NumLookup.com, should prevail over the allegations in Plaintiff’s complaint.
The flaw in Defendants’ argument is that the court cannot consider matters
outside of the complaint on a motion to dismiss. Although Defendants
characterize their exhibits as “public records,” they are not the type of
uncontroverted public records that the court may consider on a motion to
dismiss. “[I]n general a court may only take judicial notice of a public record
whose existence or contents prove facts whose accuracy cannot
reasonably be questioned.” Passa v. City of Columbus, 123 Fed. Appx.
694, 697 (6th Cir. 2005); see also Fed. R. Evid. 201 (court may judicially
notice a fact that “can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned”). Printouts of
information obtained from internet databases, whose accuracy has not
been established, do not qualify. The court cannot accept the truth of the
information provided in Defendant’s exhibits, “in order to preserve
[Plaintiff’s] right to a fair hearing.” Passa, 123 Fed. Appx. at 697. To the
extent Defendants’ motion is predicated upon the argument that Plaintiff’s
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phone number is truly a business fax number or a VoIP number for which
Plaintiff is not charged for calls, it is denied.
Defendants submit an additional reason for the dismissal of Count V.
In that count, Plaintiff alleges that the calls he received violated 47 C.F.R. §
64.1200(d)(1) because Defendants did not have a written policy, available
on demand, for maintaining an internal do-not-call list. ECF No. 1 at ¶¶ 68,
85, 137. Defendants argue that it “is not a separate violation under the
TCPA for a caller’s alleged failure to provide a do-not-call policy.”
Defendants misconstrue the complaint’s allegations. Plaintiff is not alleging
that Defendants violated the TCPA solely by failing to provide him with a
written do-not-call policy. Rather, he alleges that Defendants’ calls violated
47 C.F.R. § 64.1200(d)(1) because they failed to have a written policy for
maintaining a do-not-call list. ECF No. 1 at ¶ 137. These allegations state a
claim under § 64.1200(d)(1). See Charvat v. GVN Michigan, Inc., 561 F.3d
623, 632 (6th Cir. 2009) (“The ‘violation of the regulations’ is therefore the
initiation of the phone call without having implemented the minimum
procedures.”); Dobronski v. Selectquote Ins. Servs., 462 F. Supp. 3d 784,
791 (E.D. Mich. 2020) (“[A] private right of action exists for a violation of 47
C.F.R. § 64.1200(d)(1).”); Hamilton v. Voxeo Corp., 2009 WL 1868542, at
*4 (S.D. Ohio June 25, 2009) (noting that although the plaintiff “cannot
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recover for United Health’s refusal to send him its do-not-call policy,” he can
“recover for a call made at a time when United Health did not have such a
policy in place”). Accordingly, Defendants’ argument on this issue is
unavailing.
V.

Count IV

Defendants assert that Count IV should be dismissed because there
is no private right of action under 47 C.F.R. § 64.1200(a)(7)(i). The TCPA
provides for a private right of action “based upon a violation of this
subsection or the regulations prescribed under this subsection.” 47 U.S.C.
§ 227(b)(3); § 227(c)(5). One of the regulations promulgated under § 227 is
47 C.F.R. § 1200(a)(7)(i), which addresses abandoned calls:
(i) Whenever a live sales representative is not available to
speak with the person answering the call, within two (2)
seconds after the called person’s completed greeting, the
telemarketer or the seller must provide:
(A) A prerecorded identification and opt-out message that is
limited to disclosing that the call was for “telemarketing
purposes” and states the name of the business, entity, or
individual on whose behalf the call was placed, and a telephone
number for such business, entity, or individual that permits the
called person to make a do-not-call request during regular
business hours for the duration of the telemarketing campaign;
provided, that, such telephone number may not be a 900
number or any other number for which charges exceed local or
long distance transmission charges, and
(B) An automated, interactive voice- and/or key press-activated
opt-out mechanism that enables the called person to make a
do-not-call request prior to terminating the call, including brief
explanatory instructions on how to use such mechanism. When
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the called person elects to opt-out using such mechanism, the
mechanism must automatically record the called person's
number to the seller's do-not-call list and immediately terminate
the call.
47 C.F.R. § 64.1200(a)(7)(i). Plaintiff alleges that Defendants violated this
provision with respect to several calls because they did not provide an optout mechanism when a live sales agent was not available to connect the
call.
Defendants’ argument that there is no private right of action under
this provision is relatively cursory. They rely on Dobronski v. Fam. First Life,
LLC, No. 22-CV-12039, 2024 WL 575858, at *16 (E.D. Mich. Jan. 19,
2024), report and recommendation adopted in part, rejected in part, 2024
WL 1342668 (E.D. Mich. Mar. 29, 2024). The Family First court also
conducted little analysis of the issue, citing Dahdah v. Rocket Mortg., LLC,
No. 22-11863, 2023 WL 5941730, at *5 (E.D. Mich. Sept. 12, 2023) and
Leyse v. Bank of Am., Nat’l Ass’n, 2020 WL 1227410, at *7 (D.N.J. Mar. 13,
2020), aff’d, 856 Fed. Appx. 408 (3d Cir. 2021). However, neither Dahdah
nor Leyse stand for the proposition that there is no private right of action
under § 64.1200(a)(7)(i)(A). The court in Dahdah expressly found it
“unnecessary to address” the issue of whether there is a private right of
action under § 64.1200(a)(7), because the plaintiff nonetheless failed to
state a claim. 2023 WL 5941730 at *5. The court in Leyse determined that
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a call did not violate the TCPA because when the plaintiff “called the
number in the abandoned call message, he was able to speak to
representatives who asked if he wished to make a do-not-call request,”
thus demonstrating compliance with the regulations. Leyse, 2020 WL
1227410, at *7.
Other than to cite these inapposite cases, Defendants have not
explained why the court should find that there is no private right of action
under § 64.1200(a)(7)(i). “It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to . . . put
flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.
1997) (citation omitted). Accordingly, Defendants’ motion as to Count IV is
denied.
CONCLUSION
IT IS HEREBY ORDERED that Defendants’ motion to dismiss (ECF
No. 15) is DENIED.
Dated: August 29, 2024

s/George Caram Steeh
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record
on August 29, 2024, by electronic and/or ordinary mail and
also on Mark W. Dobronski, PO Box 99, Dexter MI 48130.
s/LaShawn Saulsberry
Deputy Clerk

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