United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS
Fashing United States Magistrate Judge
MATTER comes before the Court on Defendant James Steven
Deering d/b/a Centra XYZ, LLC's Motion to Dismiss, filed
on May 21, 2018. Doc. 6. Plaintiff Sid Childress filed his
response on May 29, 2018. Doc. 10. Deering filed his reply on
June 12, 2018. Doc.
parties consented to my entering final judgment in this case.
Docs. 9, 11, 12. Having read the submissions of the parties
and the relevant law, and being otherwise fully advised, the
Court finds that the motion is well-taken and will GRANT it.
Background Facts and Procedural Posture
case arises out of phone calls that plaintiff Sid Childress
received on his cell phone from (951) 224-3387 and (949)
656-7696. Doc. 1-2 (Complaint) ¶ 18. Childress's
caller ID showed that these calls originated from Riverside,
California. Id. When Childress answered calls from
these two numbers, “on almost all of them he
immediately experienced the tell-tale indicators of an
illegal automatic dialing system (‘auto-dialer' or
[‘]ATDS')-a few seconds of silence or ‘dead
air' and strange noises before a live telemarketer came
on the line.” Id. ¶ 19. The live
telemarketers tried to interest Childress in having his
student loan debt refinanced, even though Childress did not
have student loan debt. Id. ¶¶ 20, 21.
live telemarketer always refused to adequately identify him
or herself or the “sponsor” of the call.
Id. ¶¶ 22, 25. If Childress persisted in
questioning the telemarketer about on whose behalf the
telemarketer was calling, the telemarketer would either lie
and give Childress the name of a fake or non-existent
business, or hang up. Id. ¶ 23. On September
28, 2017, Childress received two calls from (949) 656-7696.
Id. ¶ 28. The first call was at 10:40 a.m.
Id. In that call, the telemarketer identified
himself as “Vincent.” Id. Childress told
Vincent that his (Childress's) phone number was on the
National Do-Not-Call Registry, that Childress would like his
number placed on the telemarketer's internal do-not-call
list, and that he never wanted to receive another marketing
call again. Id. “Vincent” hung up, but
another telemarketer called from the same phone number an
hour and four minutes later. Id. ¶ 29.
According to the Childress's complaint, he continued to
receive telemarketing calls from both (949) 656-7696 and
(951) 224-3387 after September 28, 2017. Id. ¶
asserts that his cell phone number has been on the National
Do-Not-Call Registry at all relevant times, and that he has
never consented to being auto-dialed or robo-called.
Id. ¶¶ 37, 41. Childress also asserts that
he has never established any business relationship with
defendant James Stevens Deering doing business as Centra XYZ,
LLC. Id. ¶ 44. Childress asserts in his
complaint that the calls made to him from (949) 656-7696 and
(951) 224-3387 violated the Telephone Consumer Protection Act
(TCPA), 47 U.S.C. § 227(b), and that the violations were
willful. Id. ¶¶ 55-59. He also asserts
state common law claims and claims under New Mexico's
Unfair Practices Act. Id. ¶¶ 60-67.
Childress asserts in his complaint that Deering is liable for
the telephone calls either because Deering actually made or
initiated the calls himself, or because:
a) Deering authorized them, or
b) Deering directly or indirectly controlled the people who
actually made the calls, or
c) Deering allowed telemarketers to access information and
operating systems with Deering's control for the purpose
of selling goods and services, or
d) Deering allowed the telemarketers to enter consumer
information into his sales, dialing or operational systems,
e) Deering approved, wrote, or reviewed the telemarketing
sales script, or
f) Deering reasonably should have known that the actual
telemarketers were violating the TCPA, and Deering failed to
take effective steps within his power to ...