Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Worsham v. Travel Options, Inc.

United States District Court, D. Maryland

September 1, 2016

MICHAEL C. WORSHAM, Plaintiff
v.
TRAVEL OPTIONS, INC., et al., Defendants

          MEMORANDUM

          James K. Bredar United States District Judge

         Plaintiff Michael C. Worsham filed this lawsuit against Travel Options, Inc., and Clifford Shannon, alleging violations of the Telephone Consumer Protection Act of 1991 (“TCPA”), codified at 47 U.S.C. § 227, and the Maryland Telephone Consumer Protection Act (“MTCPA”), codified at Md. Code Ann., Com. Law §§ 14-3201 and 14-3202 (LexisNexis 2013). (Compl., ECF No. 1.) He asked for total damages of $64, 000 and injunctive relief. Service was made on the two Defendants (ECF No. 6), but neither one appeared or filed an answer. At Worsham's request, the Clerk entered defaults against both Defendants. (ECF Nos. 9, 10.) Now pending before the Court is Worsham's motion for default judgment. (ECF Nos. 18, 19.) In his motion, Worsham asks for total statutory damages of $18, 000 ($8, 000 under the TCPA and $10, 000 under the MTCPA) to be awarded jointly and severally against both Defendants and for injunctive relief.[1] As will be explained below, default judgment will be entered against Travel Options, Inc., only; judgment will be entered for Defendant Shannon.

         I. Standard for Default Judgment

         The Supreme Court has opined that a default judgment may be lawfully entered only “according to what is proper to be decreed upon the statements of the bill, assumed to be true.” Thomson v. Wooster, 114 U.S. 104, 113 (1884). “‘The defendant, by his default, admits the plaintiff's well pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established. . . . The defendant is not held . . . to admit conclusions of law.'” Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001) (quoting Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). It is the court's task, therefore, to “determine whether the well-pleaded allegations in [plaintiff's] complaint support the relief sought . . . .” Ryan, 253 F.3d at 780. Mere default “does not in itself warrant the court in entering a default judgment. There must be a sufficient basis in the pleadings for the judgment entered.” Nishimatsu, 515 F.2d at 1206; see also DirecTV, Inc. v. Pernites, 200 F.App'x 257, 258 (4th Cir. 2006) (per curiam).

         The Court surmises that “well-pleaded allegations of fact” sufficient to support a default judgment are equal in quality and character to those factual allegations sufficient for a complaint to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Compare Ryan, 253 F.3d at 780 (“well-pleaded allegations” in complaint must support relief sought), with Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”). Under Rule 8(a)(2), a plaintiff must “show” he is entitled to relief, and that “requires more than labels and conclusions”; “a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The principle that a court must accept as true all of the complaint's allegations only applies to factual allegations; legal conclusions couched as factual allegations need not be accepted as binding. Iqbal, 556 U.S. at 678. Further, a court need not accept “unwarranted inferences, unreasonable conclusions, or arguments.” United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014).

         II. Allegations of the Complaint

         Worsham alleges he resides in Harford County, Maryland, and that he “has continuously subscribed to and used his phone number 410-557-6192, which has been on the National Do Not Call list over 8 years since July 15, 2006, and is a Verizon Wireless cell phone number.” (Compl. ¶ 1.) The two Defendants are Travel Options, Inc., which “is a Florida for-profit corporation incorporated in October 2010 with an address” in Boca Raton, Florida, and Clifford Shannon, described by Worsham as “an individual who lives in Florida, and who has been President and registered agent for Travel Options, Inc. at all times relevant to this suit.” (Id. ¶¶ 2, 3.)

         Through the use of “Caller ID, ” Worsham identified four calls to his number from the same Florida number, 954-656-4091, which were made July 16-18, 2014. (Id. ¶ 9.) During the first three calls, no message was left. (Id. ¶ 10.) It is reasonable to infer that the first three calls went to an answering machine or to voicemail in Worsham's home, although he does not so state, and that the caller hung up without leaving a message. Worsham says he answered the fourth call and spoke with a man who said he was Jim Allison with Travel Options. (Id. ¶ 11.) Allison allegedly told Worsham that he had an unused travel credit of $750 from attending a timeshare presentation in either Florida or Las Vegas in the preceding two to four years, and then Allison offered to sell a travel package to Worsham that would incorporate the unused travel credit. (Id.) Allison indicated the travel package had a Florida part, a Las Vegas part, and a cruise, all of which was worth over $4, 000, but Worsham's cost after applying the credit would only be $697 if he agreed to participate in a ninety-minute timeshare presentation. (Id.) Allison further indicated the travel package was essentially a tax write-off for the timeshare companies “and a way to keep rooms occupied that would otherwise be empty.” (Id.) Worsham did not attend a timeshare presentation anywhere in the two to four years preceding the telephone conversation. (Id. ¶ 13.) Additionally, Worsham has no business relationship of any kind with Defendant, its affiliates, agents, contractors, or partners, and he never gave any prior permission for any of them to call him. (Id. ¶ 24.)

         Worsham makes many other allegations, but these amount to his conclusions with no supporting factual basis. For example, he alleges Shannon exercised decision-making control over Travel Options's policies, procedures, and business practices and, as well, Shannon made the decisions causing the calls and violations. (Id. ¶ 16.) He also alleges the name of the telemarketer is available for transmission via Caller ID by Defendants' carrier. (Id. ¶¶ 22, 23.) In addition, Worsham alleges Travel Options has no policy or procedures pertaining to the Do Not Call (“DNC”) registry, as required by the TCPA and by rules promulgated by the Federal Communications Commission (“FCC”). (Id. ¶ 27.) Also, Worsham alleges “Defendants' calls used an ‘automatic telephone dialing system' (ATDS) as defined by 47 U.S.C. § 227(a)(1) and 47 C.F.R. § 64.1200(f)(2).” (Id. ¶ 29.) He further alleges, “Defendants are all aware and know about, and approve of, the telemarketing calling patterns and practices used in their calling centers and/or used by of [sic] their agents or contractors” (id. ¶ 38), “Defendants all ratified the acts and conduct of all person [sic] involve [sic] in the Scam . . .” (id. ¶ 40), and “Defendants failed to pay the annual fee for access to telephone numbers within Plaintiff's area code 410 that are included on the National DNC list registry maintained by the FTC” (id ¶ 44). None of these additional allegations rests on facts logically within the knowledge of Worsham, and he provides no supporting factual allegations for them.

         Worsham's complaint includes twenty-four counts based on alleged violations of the TCP A, FCC rules, Federal Trade Commission (“FTC”) rules, and the MTCPA:

• Count 1: Each call violated the TCPA's and FCC's prohibition on initiating calls to a telephone number on the DNC list.
• Count 2: Each call violated the TCPA's and FCC's prohibition on initiating any telephone call using an automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a cellular telephone service.
• Count 3: Each call violated the TCPA's and FCC s requirement to identify the caller, the person or entity on behalf of whom the call is made, and a telephone number or address at which the person or entity may be contacted.
• Count 4: Each call violated the TCPA's and FCC's requirement to transmit caller identification and to include the calling number and the name of the telemarketer if the name is available by the telemarketer's carrier.
• Count 5: The TCPA and/or FCC rule violation in Count 1 violated the MTCPA.
• Count 6: The TCPA and/or FCC rule violation in Count 2 violated the MTCPA.
• Count 7: The TCPA and/or FCC rule violation in Count 3 violated the MTCPA.
• Count 8: The TCPA and/or FCC rule violation in Count 4 violated the MTCPA.
• Counts 9 through 12: The four calls violated the FTC's Telemarketing Sales Rule and, therefore, also violate the MTCPA.
• Counts 13 through 16: The four calls violated the FTC regulation mandating that a telemarketer pay an annual fee for access to telephone numbers on the DNC list ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.