Worsham v. Disc. Power, Inc.

1

MICHAEL C. WORSHAM, Plaintiff, v. DISCOUNT POWER, INC., Defendant.

Civil Action No. RDB-20-0008

United States District Court, D. Maryland

August 4, 2022

MEMORANDUM OPINION

RICHARD D. BENNETT, UNITED STATES SENIOR DISTRICT JUDGE

This is the latest in a series of cases filed by Plaintiff Michael C Worsham (“Worsham”) against corporations alleged to have violated state and federal telephone consumer protection laws.^[1] Worsham, a former attorney appearing pro se, alleges that Defendant Discount Power, Inc. (“Discount Power”) violated the federal Telephone Consumer Protection Act (“TCPA”) and Maryland Telephone Consumer Protection Act (“MTCPA”) by placing seven calls to his landline during a five-day period in November 2019. (Am. Compl. ¶ 15, ECF No. 54.) Following this Court's partial grant of Discount Power's motion to dismiss (ECF Nos. 75, 137) four counts of Worsham's Amended Complaint remain operative: In Counts 1 and 5, Worsham alleges that Discount Power placed calls to his residential landline, which is listed on the National Do-Not-Call List. (Am. Compl. ¶¶ 68, 74.) In Counts 2 and 6, Worsham alleges that Discount Power violated 47 C.F.R. § 64.1200(d)(4) by failing to provide requisite identifying information for each of these calls. (Id. ¶¶ 69-70, 75.)

Currently pending are the parties' dispositive cross-motions for summary judgment. (ECF Nos. 276, 277.) The parties largely dispense with the specifics of each Count and turn their attention to a fundamental issue: Whether Discount Power may be held directly or vicariously liable for the seven telemarketing calls at all. After extensive discovery, Worsham has failed to produce evidence of an agency relationship between Discount Power and its third-party telemarketing vendors, who are properly characterized as independent contractors. This distinction entitles Discount Power to judgment on all counts as a matter of law. The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2021). For the following reasons, Worsham's Motion for Summary Judgment (ECF No. 276) is hereby DENIED, and Discount Power's Motion for Summary Judgment (ECF No. 277) is hereby GRANTED.

BACKGROUND

Plaintiff Michael Worsham (“Worsham”) is a former attorney who has resided in Forest Hill, Maryland, since 1993. (Worsham Affid. ¶ 1, ECF No. 276-2.) Worsham maintains a landline at his home with the number (410) 692-2749 (the “Landline”) that was placed on the Federal Communication Commission (“FCC”) National Do-Not-Call List in July 2006. (Id. ¶ 2.) Defendant Discount Power, Inc. (“Discount Power”) is a Connecticut corporation with its principal place of business in Shelton, Connecticut. (Flood Decl. ¶ 3, ECF No. 277-4.) Discount Power contracts with third-party vendors, including Hound Energy, LLC, and AGR Group, LLC, to advertise energy service discounts by calling prospective consumers. (Id. ¶¶ 4-5; Discount Power Interrog. Resp. No. 18, ECF No. 105-1.) According to Discount Power's Regulatory and Licensing Administrator Kenneth Flood, Discount Power exercises no control over these vendors' telemarketing activities, or the hiring, management, and termination of their employees. (Flood Decl. ¶¶ 6-7.)

Worsham alleges that Discount Power placed seven calls to his Landline in a five-day timespan during November 2019 to offer discounts and rebates on electrical bills. (Am. Compl. ¶ 15; Worsham Affid. ¶¶ 5, 9-16.) As summarized in Worsham's Third Affidavit, these calls include the following:

No.

Date of Call

Time of Call

Caller ID Number

Caller ID Name

Nov. 11, 2019

10:50 AM

201-285-8284

Bayonne NJ

Nov. 11, 2019

5:37 PM

410-692-7576

Jarretsvl MD

Nov. 12, 2019

1:49 PM

201-285-8284

Bayonne NJ

Nov. 14, 2019

1:23 PM

201-285-8284

SPAM? Bayonne N

Nov. 15, 2019

12:01 PM

201-285-8284

SPAM? Bayonne N

Nov. 15, 2019

1:09 PM

410-692-8898

Jarrettsvl MD

Nov. 15, 2019

2:37 PM

201-285-8284

SPAM? Bayonne N

(Am. Compl. ¶ 15; Worsham Affid. ¶ 5.)

Worsham did not answer the first call. However, he alleges that Calls 2 through 5 included prerecorded solicitations with the following robocall messages:

Call 2: “Hello. This is an apology call from your electric utility. You got overcharged by your third party supplier. You will be receiving a rebate check along with a 30% discount on your electric and gas bill. Please press one to get your rebate check.”

Calls 3-5: “Hello thank you for being a valued customer of BGE, also known as Baltimore Gas and Electric. The following is an important update regarding your account. Starting this month all current customers who have not missed any payments in the past 6 months will now be eligible for a discount for up to 30% off of their monthly bill. If you would like to check your eligibility, simply press one on your phone now.”

Call 6: “Hello. This is an apology call from your electric utility. You got overcharged by your third party supplier. You will be receiving a $100 bill adjustment along with a 40% discount on your electric and gas bill. Please press 1 to adjust $100 in your bill. Please press 1 now.”

(Am. Compl. ¶ 15; Worsham Affid. ¶¶ 9-16, 18.) Worsham also claims that he spoke to a telemarketing agent named “Joselyn” during calls 3, 4, 5, and 7. (Worsham Affid. ¶¶ 11-15.) According to Worsham, “Joselyn” identified herself as a representative of Discount Power in these calls, and provided Discount Power's customer service hotline. (Id. ¶¶ 13-16.)

Worsham filed his initial 17-Count Complaint in the Circuit Court of Harford County, Maryland, on November 25, 2019, alleging 4 violations of the federal Telephone Consumer Protection Act (“TCPA”) (Counts 1-4), and 13 violations of the Maryland Telephone Consumer Protection Act (“MTCPA”) (Counts 5-17). (See Compl. ¶¶ 72, 76, ECF No. 3; Harford County Compl. 14, ECF No. 1-2.) Following removal to this Court and dismissal without prejudice, Worsham filed the operative Amended Complaint on May 13, 2021, seeking $77,000-$40,500 in statutory damages for the alleged TCPA violations, and $36,500 in statutory damages for the alleged MTCPA violations. (Am. Compl. ¶¶ 91, 95.) Discount Power filed a second motion to dismiss (ECF No. 64), and this Court granted that motion as to Counts 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17, dismissing those Counts with prejudice.

(7/29/21 Mem. Ord. 1-2, ECF No. 75.)^[2] Accordingly, Worsham's only surviving causes of action are Counts 1 and 5, relating to the presence of the Landline on the FCC's National Do-Not-Call List; and Counts 2 and 6, relating to Discount Power's failure to provide identifying information as required by FCC regulations. (Id. at 1-2, 7-8; Am. Compl. ¶¶ 68-70, 74-75.)

Through a lengthy discovery process, Worsham served multiple third-party subpoenas to trace the seven telemarketing calls to their point of origin, attempting to connect the dots from caller to carrier, and ultimately to Discount Power. (Worsham Mem. Supp. Summ J. 4, ECF No. 276-1.) On April 27, 2020, and September 23, 2021, Worsham subpoenaed his primary phone carrier, Armstrong Telecommunications, which disclosed that Inteliquent, Inc. was responsible for five calls, and Peerless Network, Inc., was responsible for two calls. (Armstrong Subpoenas, ECF Nos. 27-1, 102; Reed Smith Resp. Letter, ECF No. 276-3; List of Calls, ECF No. 123-1.) On November 3, 2021, Worsham subpoenaed each of these carriers for their call records. (Subpoena Request, ECF No. 123; Peerless Subpoena, ECF No. 123-2; Inteliquent Subpoena, ECF No. 123-4.) Inteliquent identified four carriers who provided services for these calls: Comcast, Bandwidth.com CLEC LLC, 382.com, and 200 Networks. (Inteliquent Call Records 2-3, ECF No. 155 *SEALED*.) Peerless identified one carrier: Contact Center Specialists, LLC. (Worsham Affid. ¶ 31; see also Peerless Call Records, ECF No. 160-2; Phipps Affid., ECF No. 160-1.)

After several extensions, discovery closed on April 1, 2022. (3/2/22 Letter Ord. 3, ECF No. 228.) However, six months earlier, on November 16, 2021, Worsham served a subpoena on Contact Center Specialists, LLC, which was later identified by Peerless as its carrier. (CCS Supboena, ECF No. 133.) Contact Center revealed that five calls were placed by Xtrasource BPO to the Landline on the same dates as Calls # 1, 3, 4, 5, and 7. (CCS Email, ECF Nos. 233-5, 276-4.) Additionally, in an interrogatory response, Discount Power acknowledged that “Xtrasource-Hound Energy, LLC and AGR Group, LLC provided telemarketing services to Discount Power in Maryland in during the period of the alleged calls to Plaintiff on November 11, 12, 14 and 15, 2019.” (Discount Power's Suppl. Resp. to Pl.'s Interrogs. No. 5, ECF No. 109-1.) Worsham contends that this evidence completes a chain between Armstrong, Peerless, Contact Center, Hound Energy, and Discount Power. (Worsham Mem. Supp. 4.)

However Discount Power notes that “[t]here is not one scintilla of evidence that [it] initiated any of the seven calls.” (Discount Power Mem. Supp. Summ. J. 1, ECF No. 277-1.) Discount Power's internal investigation revealed that none of its third-party dialers have any records of calls made to the Landline, (Flood Decl. ¶¶ 8-9), none of its dialers have employees by the names of Jocelyn or Joselyn, (id. ¶ 10), and none of its subcontractors placed the calls at issue in this case, (id. at ¶ 11). Discount Power's internal records do not indicate any calls placed on this date, DPI Records 5-10, ECF No. 277-8), Discount Power attested in an interrogatory response that it did not initiate the calls, (Discount Power's Suppl. Resp. to Pl.'s Interrogs. No. 6), and AGR Group and Hound Energy offered sworn declarations and copies of their call logs indicating that they have no records of calls to the Landline during...