Defendant Obtains Summary Judgment Against Serial Plaintiff in Heavily Litigated TCPA and MDTCPA Action

Author: Thomas Blatchley

In Worsham v. Discount Power, Inc., Civ. Action No. RDB-20-0008, 2022 WL 3100762 (D. Md. Aug. 4, 2022) (Bennett, J.), the United States District Court for the District of Maryland granted defendant’s motion for summary judgment and denied plaintiff’s cross-motion for summary judgment in an action wherein plaintiff asserted numerous violations of the federal Telephone Consumer Protection Act and Maryland Telephone Consumer Protection Act for alleged unwanted telemarketing calls.

Case Background

Plaintiff filed his original 17-count complaint in Maryland state court. After the case was removed to federal court, defendant successfully obtained dismissal without prejudice of plaintiff’s entire complaint for failure to state a claim. After plaintiff re-pled the complaint, Defendant again successfully obtained dismissal of 13 of the 17-counts, with prejudice, as well as plaintiff’s claims for treble damages and attorneys’ fees. During the pendency of the action, defendant also secured discovery sanctions against plaintiff, including the recovery of certain fees and costs, as well as an order precluding certain evidence.

Summary Judgment for Defendant

The parties filed cross-motions for summary judgment on the remaining four counts of the complaint alleging TCPA and MDTCPA violations for defendant’s alleged failure to (1) honor the National Do-Not-Call registry (Counts 1 and 5) and (2) provide telemarketer identifying information as required by FCC regulations. The district court ultimately found that defendant could not be held directly or vicariously liable for the numerous telemarketing calls since there was no evidence of any agency relationship between the defendant and its third-party telemarketing vendors, which the district court found were properly characterized as independent contractors. The district court found this distinction entitled the defendant to judgment on all counts as a matter of law.

The district court denied plaintiff’s motion for summary judgment, granted defendant’s summary judgment motion, entered judgment in favor of defendant as to all remaining counts, and closed the case.

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