United States District Court, D. Maryland
MICHAEL C. WORSHAM, Plaintiff
TRAVEL OPTIONS, INC., et al., Defendants
K. Bredar United States District Judge
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. As will be
explained below, default judgment will be entered against
Travel Options, Inc., only; judgment will be entered for
Standard for Default Judgment
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).
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).
Allegations of the Complaint
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.)
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.)
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.
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
• 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 ...