For Appellant: Eric J. Menhart, Lexero Law on the brief, Washington, D.C.
For Appellee: Timothy B. Hyland, Elizabeth A. Dwyer, Hyland Law PLLC on the brief, Reston, VA.
Kehoe, Reed, Eyler, James R. (Retired, Specially Assigned) JJ.
[221 Md.App. 658] Reed, J.
This appeal arises out of a civil suit premised upon Section 14-3002 of the Commercial Law Article (" C.L." ) of the Maryland Code, the Maryland Commercial Electronic Mail Act (" MCEMA" ) (2002), which prohibits the sending of commercial e-mails that contain unauthorized, false, or misleading information, and C.L. Section 13-301, the Maryland Consumer Protection Act (" MCPA" ) (1975, 2005 Repl. Vol.), which prohibits unfair or deceptive trade practices including making " [f]alse, falsely disparaging, or misleading oral or written statement, visual description, or other representation of any kind which has the capacity, tendency, or effect of deceiving or misleading consumers[.]" C.L. § 13-301(1).
Jeffrey Walton's (" Appellant" ) complaint alleged that Network Solutions (" Appellee" ) violated the MCEMA because appellee sent numerous e-mails to him using " unavailable e-mail address[es] purporting to be legitimate and reachable[,]" and because the e-mails' subject line contained false or misleading information. Appellant
also alleged that appellee violated the MCPA, because he was not removed from appellee's e-mail distribution list, despite his numerous efforts to " unsubscribe." Appellee moved to dismiss the action in the Circuit Court for Montgomery County. The circuit court granted the motion and dismissed appellant's case with prejudice. Appellant noted an appeal raising the following four questions that we rephrased for clarity:
I. Did the circuit court improperly convert the motion to dismiss to a motion for summary judgment?
[221 Md.App. 659] II. Did the circuit court err in granting a motion to dismiss for failure to state a claim upon which relief can be granted with respect to appellant's MCEMA claim relating to a misrepresentation of the e-mails' origin or transmission path?
III. Did the circuit court err in granting a motion to dismiss for failure to state a claim upon which relief can be granted with respect to appellant's MCEMA claim relating to a misrepresentation in the e-mails' subject line?
IV. Did the circuit court err in granting a motion to dismiss for failure to state a claim upon which relief can be granted with respect to appellant's MCPA claim that appellee employed a misleading oral or written statement?
We answer all four questions in the negative, and, therefore, affirm the judgment of the circuit court.
Factual And Procedural Background
On March 7, 2013, appellant filed suit against appellee in the Circuit Court for Montgomery County seeking statutory and injunctive relief. Appellant's complaint alleged that from 2009 to 2012, appellee sent numerous e-mails to him using " unavailable e-mail address[es] purporting to be legitimate and reachable." After appellant replied to appellee's e-mail message, he received the following message: " The mailbox to which you attempted to send your email is not monitored." Appellant asserted that appellee " initiated, conspired to initiate, and assisted in the transmission" of an advertisement via e-mail, and that the e-mails contained " 'false or misleading information about the origin or the transmission path of the commercial electronic mail'" and that " [t]hey contain[ed] false information in the 'From' line and in the 'Received from' line[,]" violating the MCEMA. (quoting C.L. § 14-3002(b)(2)(ii)).
In setting forth his second MCEMA claim, appellant's complaint asserted that appellee " initiated, conspired to initiate, and assisted in the transmission" of an advertisement via e-mail, and that the " messages contained 'false or misleading [221 Md.App. 660] information in the subject line that has the capacity, tendency, or effect of deceiving the recipient'" violating the MCEMA. (quoting C.L. § 14-3002(b)(2)(iii)).
Next, Appellant alleged that appellee violated the MCPA, because he was not removed from appellee's e-mail distribution list, despite his numerous efforts to " unsubscribe." Appellant spoke to an employee of appellee's in November 2009, and following appellant's request to " unsubscribe," the employee sent an e-mail on November 13, 2009, stating, " I have confirmed that your email address and phone number have been added to our Do Not Contact lists and any marketing communications will cease within the next 7 - 10 business days." Despite this assurance, appellant's exhibit reveals that he received an e-mail on December 1, 2009, and that he continued to receive e-mails from 2009 to 2011. Subsequently, appellant spoke to another employee of appellee's, but he continued
to receive e-mails from 2011 to 2012.
On June 10, 2013, appellee filed a motion to dismiss for failure to state a claim pursuant to Rule 2-322(b), and a request for a hearing. On June 28, 2013, appellant filed an Opposition to the Motion to Dismiss and a Request for Hearing. Appellee then filed a reply in support of its motion to dismiss on July 3, 2013.
A hearing was held on August 7, 2013, and the circuit court entered an order granting the motion to dismiss with prejudice on the same day. The circuit court " considered all the papers that the parties . . . filed . . . together with the entire file" as well as " the arguments of counsel." The court further considered allegations that appellant made in his opposition to the motion to dismiss, which appellant indicated he would potentially add to the complaint were he granted leave to amend. The circuit court dismissed the first MCEMA claim that appellee failed to provide truthful information about the origin or transmission of the path of the e-mail messages, because appellant failed to indicate what was false about the origin or transmission of the e-mail. In addition, the circuit court found because appellant knew that these e-mails came from appellee and because appellee conceded to [221 Md.App. 661] sending the e-mails, that appellant was not mislead about the e-mails' origins.
The circuit court also dismissed the second MCEMA claim that appellee's e-mails contained false or misleading information in the subject line. Similarly, the circuit court found that appellant did not indicate any false statement in the subject line of the e-mail. It explained that appellee was " making offers for things that it does," and determined, therefore, there was no falsity.
Finally, the circuit court held that appellant's MCPA claim that appellee made misrepresentations that had the capacity to deceive appellant was barred by the statute of limitations. The court explained that appellant received appellee's confirmation that he was unsubscribed on November, 13, 2009, but he received another e-mail from appellee as early as December 1, 2009. The circuit court found, therefore, that appellant " should or could have been aware" that the conversation was false on December 1, 2009.
For purposes of determining whether the circuit court granted a motion to dismiss or a motion for summary judgment, the circuit court's full ruling is provided below:
[I]n treating a motion for failure to state a claim the standard that applies is that we must treat as true that which is alleged and give all reasonable inferences in favor of the non-moving party, in this case the plaintiff. With that standard in mind let me address . . . the counts separately. In this case, and I have also included in that consideration not just the allegations in the complaint, but really in an abundance of caution that which plaintiff has added by way of his opposition . . . he has made or added some more specifics not really a formal amendment of the complaint but he has told us essentially what he might do if he were given leave to amend. I am looking specifically at some of the email addresses we talked about in some of the other matters. It's clear to me having looked at the standard applicable to this motion that simple bold allegations are inadequate and in this case while the plaintiff has done a good job of saying and identifying the causes of actions the [221 Md.App. 662] statutes that he wishes to go under he really has not said either in the complaint itself or in the additional material that he provided by way of the opposition what is false about any of this information. In other words if you look at
count one false misleading information about the origin or the transmission path, well in the complaint he says its false if you look at the opposition he says these are the email addresses so looking at it all together it[']s clear to me that there is, it may be hard to read but it's not false. I mean these emails came from Network Solutions. . . . So looking [at it] altogether it does not appear to me that there is a falsity there nor has he, if you look at altogether can he allege that.
With respect to count number two, I think the same problem appears in his complaint including the exhibit that is attached to it, of course we look at all that together. Even putting aside the limitations problem which I don't think you have to reach for that argument I don't see what exactly is false about these subject lines. I mean Network Solutions is offering, making offers for things that it does. There's nothing false about that and I do think that that is something that he has to allege.
Finally with respect to count 3[,] I agree with counsel that it suffers from the statute of limitations problem even if you take us through the allegations that the plaintiff made which is that there was this conversation on November 13 of 2009. . . . [Thereafter,] [t]here was an email that was received as quickly as . . . December 1st of 2009 that was received about two and a half weeks or thereafter after this conversation and so at that point December 1, 2009[,] that's when the plaintiff should or could have been aware that that conversation if it was false was false.
I. Preliminary Matters
A. Parties' Contentions
Appellant contends that the circuit court's ruling was a grant of a motion for summary judgment, because the circuit [221 Md.App. 663] court considered numerous items outside the pleadings. Specifically, appellant argues that the circuit court considered appellee's Memorandum in Support of its Motion to Dismiss, which contained content of a purported e-mail to demonstrate that the e-mails were not false. The appellant asserts that the circuit court made it clear that it relied on the parties' oral arguments during the August 7, 2013, hearing, and all papers filed. Appellant contends that he was prejudiced because he had not been given prior notice that the hearing held on August 7, 2013, would be a hearing for summary judgment. As a result, appellant asserts that he did not have an opportunity for discovery prior to the hearing.
Appellee counters that the circuit court did not convert the motion to dismiss to a motion for summary judgment, but that the court was considering the additional facts only in its consideration of whether ...