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Childress v. Deering

United States District Court, D. New Mexico

January 29, 2019

SID CHILDRESS, Plaintiff,
v.
JAMES STEVEN DEERING d/b/a CENTRA XYZ, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          Laura Fashing United States Magistrate Judge

         THIS 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.

         13. The 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.

         I. Background Facts and Procedural Posture

          This 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.

         The 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. ¶ 31.

         Childress 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, or
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 ...

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