United States District Court, D. Maryland
DAN BOGER, On Behalf of Himself and Others Similarly Situated, Plaintiff,
TRINITY HEATING & AIR, INC., d/b/a TRINITY SOLAR, and MEDIA MIX 365, Defendants.
THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE.
Dan Boger has brought this putative class action against
Defendants Trinity Heating & Air, Inc.
(“Trinity”) and Media Mix 365 (“Media
Mix”), alleging violations of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227
(2012), and the Maryland Telephone Consumer Protection Act
(“MTCPA”), Md. Code Ann., Com. Law §§
14-3201 to 3202 (2013). Boger alleges that Trinity and Media
Mix violated these laws by using an automatic telephone
dialing system (“ATDS”) to call his cellular
telephone without his consent. Pending before the Court are
two Motions to Dismiss, one filed by Trinity and the other by
Media Mix. Having reviewed the pleadings and the briefs, the
Court finds that no hearing is necessary. See D. Md.
Local R. 105.6. For the reasons set forth below, the Motions
a company that installs solar power systems, uses
telemarketing to reach new customers. To that end, it hired
Media Mix to conduct a telemarketing campaign on its behalf.
As part of this campaign, Media Mix used an ATDS, which
places the calls automatically, then transfers them to live
operators only when the calls are answered. An ATDS thus
allows telemarketers to make thousands of calls in a
Mix called Plaintiff Boger on his cellular telephone at least
three times between January 2017 and May 2017. All of these
calls were made without Boger's consent. Boger had placed
that telephone number on the National Do Not Call Registry
more than five years earlier and did not otherwise consent to
receive calls from Defendants.
answered the calls on January 31, 2017 and May 11, 2017.
Boger alleges that he was aware that both of these calls were
made with an ATDS because upon answering them, he heard a
lengthy pause and then a click before a live person came on
the line and told him that the call was made on behalf of the
Solar Research Group, which Boger alleges is a pseudonym for
Trinity. During the May 11 call, the initial speaker asked
Boger several questions, then connected Boger to a Trinity
employee, who attempted to enroll him as a new Trinity
customer. Boger then filed this putative class action on
behalf of the thousands of persons who, he alleges, have
received similar ATDS-initiated calls from Defendants over
the past four years.
their separate Motions, Defendants seek dismissal of the
MTCPA claim on the grounds that it is not an independent
cause of action distinct from the TCPA claim, such that Boger
may not receive statutory damages under both the TCPA and
MTCPA for the same conduct. To defeat a motion to dismiss
under Rule 12(b)(6), the complaint must allege enough facts
to state a plausible claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible
when the facts pleaded allow “the Court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Legal conclusions or
conclusory statements do not suffice. Id. The Court
must examine the complaint as a whole, consider the factual
allegations in the complaint as true, and construe the
factual allegations in the light most favorable to the
plaintiff. Albright v. Oliver, 510 U.S. 266, 268
(1994); Lambeth v. Bd. of Comm'rs of Davidson
Cty., 407 F.3d 266, 268 (4th Cir. 2005).
contend that the MTCPA is merely an enabling statute that
empowers plaintiffs to bring a federal TCPA claim in a
Maryland court. Defendants thus argue that asserting both an
MTCPA claim and a TCPA claim based on the same conduct is
inappropriate and duplicative. Addressing this argument
requires a brief overview of the history of the TCPA and
enacted the TCPA in 1991 to address widespread consumer
complaints over practices such as telemarketing. Mims v.
Arrow Fin. Serv., LLC, 565 U.S. 368, 370-71 (2012). As
relevant here, the statute bans the use of an ATDS to call
cellular telephones unless the caller has the “prior
express consent” of the called party. 47 U.S.C. §
227(b)(1)(A). The TCPA further provides that a “person
or entity may, if otherwise permitted by the laws or rules of
court of a State, ” bring a lawsuit “in an
appropriate court of that State” against callers who
violate the statute. 47 U.S.C. § 227(b)(3);
Mims, 565 U.S. at 386-87. A plaintiff may recover
either actual damages or statutory damages of $500 per call,
whichever is greater, and may receive treble damages ($1, 500
per call) if the defendant “willfully or knowingly
violated” the law. 47 U.S.C. § 227(b)(3).
227(b)(3), which creates the TCPA's private cause of
action, only references the filing of such claims in state
court. Following the TCPA's passage, litigants disputed
whether plaintiffs could bring TCPA claims in federal court
pursuant to federal question jurisdiction. In 1997, the
United States Court of Appeals for the Fourth Circuit ruled
that they could not, because Congress had specifically
“authorized jurisdiction over private actions in state
courts without mentioning federal courts” and therefore
“did not intend to grant jurisdiction over TCPA claims
in federal district courts.” Int'l Science
& Tech. Inst., Inc. v. Inacom Comms., Inc., 106 F.3d
1146, 1152 (4th Cir. 1997). The federal courts in the Fourth
Circuit would remain closed to TCPA plaintiffs asserting
federal question jurisdiction until 2012, when the United
States Supreme Court overruled International
Science. See Mims, 565 U.S. at 376 (holding
that federal courts have federal question jurisdiction over
private TCPA suits).
in Maryland courts, a separate question percolated: whether
TCPA plaintiffs could file suit in state court as a matter of
course, without explicit authorization through a Maryland
enabling statute or rule. In January 2003, the Court of
Special Appeals of Maryland held that the Maryland General
Assembly had chosen to “opt out” of the grant of
jurisdiction over private TCPA suits provided by §
227(b)(3). R.A. Ponte Architects, Ltd. v. Investors'
Alert, Inc., 815 A.2d 816, 827 (Md. Ct. Spec. App.
2003). This decision meant that both Maryland courts and
federal courts were closed to TCPA plaintiffs.
General Assembly responded the following year by passing the
MTCPA, effective June 1 2004. See Md. Code Ann.,
Com. Law §§ 14-3201 to 3202; Worsham v.
Ehrlich, 957 A.2d 161, 172 (Md. Ct. Spec. App. 2008).
The MTCPA prohibits violations of the TCPA, labels such
violations as unfair or deceptive trade practices, and
authorizes individuals affected by an MTCPA violation to file
suit in state court to recover actual or statutory damages
and attorney's fees. Md. Code Ann., Com. Law §§
14-3201 to 3202.
August 2004, shortly after the MTCPA took effect, the Court
of Appeals of Maryland overruled the intermediate court and
held that TCPA claims under § 227(b)(3) could, in fact,
be initiated in Maryland courts. R.A Ponte Architects,
Ltd. v. Investors' Alert, Inc., ...