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Cunningham v. Montes

United States District Court, W.D. Wisconsin

May 2, 2019

CRAIG CUNNINGHAM, Plaintiff,
v.
MICHAEL MONTES JR., TOLLFREEZONE.COM, INC., MYDATAGUYS.COM, LLC, PODMUSICGEAR.COM, INC., and EMAILMYVMAIL.COM, INC., Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Plaintiff Craig Cunningham alleges that Michael Montes and several of his businesses made robocalls that violate the Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227). Montes operated a telemarketing service, TollFreeZone.com, Inc., through which clients could run telemarketing campaigns.

         Defendants move for summary judgment. No one disputes that businesses who were TollFreeZone.com clients made unsolicited robocalls to Cunningham's cell phones and that those calls violated the TCPA. The primary question now before the court is whether Montes and TollFreeZone.com can be held liable for those calls.

         The court will grant summary judgment for defendants MyDataGuys.com, LLC, PodMusicGear.com, Inc., and EmailMyVmail.com, Inc., because Cunningham does not dispute that those entities were not involved in Montes's telemarketing business. But the court will otherwise deny the motion. Cunningham has adduced evidence that would support an inference that the illegal robocalls were made through TollFreeZone.com. And, under an FCC ruling from 2015, one who is closely involved in the placing of a specific call can be deemed to have made that call, and thus be liable for the TCPA violation. In this case, Cunningham has adduced evidence that Montes was sometimes closely involved in executing his clients' telemarketing campaigns, and that he knew his clients made illegal robocalls. Thus, whether Montes and TollFreeZone.com are liable for the calls made to Cunningham depends on genuinely disputed facts.

         Defendants also seek summary judgment on the grounds that Cunningham lacks standing to sue and that they are shielded from liability by § 230 of the Communications Decency Act. The court rejects these contentions as well.

         UNDISPUTED FACTS

         Cunningham has just filed a motion seeking sanctions for defendants' spoliation of evidence. Dkt. 151. The court will consider that motion after it is fully briefed, and it has no direct effect on the court's decision on summary judgment. But at this point, it appears to be undisputed that Montes has not preserved documentation of the telemarketing campaigns that he ran for TollFreeZone.com clients during the relevant period. Accordingly, as it considers defendants' summary judgment motion, the court will not hold the absence of that documentation against Cunningham. As the non-moving party, Cunningham is entitled to the benefit of all reasonable inferences drawn from the evidence before the court. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         The following facts are undisputed, except where noted.

         A. The parties

         Craig Cunningham is a prolific filer of TCPA litigation. Since 2006, he has filed more than 150 lawsuits, 37 of which were pending during the litigation of this suit.

         Defendant Michael Montes has owned and operated several businesses, including each of the four entities named as defendants in this suit. Defendant TollFreeZone.com, Inc. is a now-defunct California company that offered customers access to an auto-dialing server operated by a third party. TollFreeZone.com had no other employees, so all of its activities were performed by Montes himself.

         Defendant MyDataGuys.com, LLC was a Nevada company that sold targeted phone number lists to customers. Although MyDataGuys.com was involved in the telemarketing business generally, it had nothing to do with the calls placed to Cunningham. The other two defendants, PodMusicGear.com, Inc. and EmailMyVmail.com, Inc. have no apparent involvement with the telemarketing industry. PodMusicGear.com, Inc. was a Delaware company that Montes created for the purpose of selling hats with embedded headphones. EmailMyVmail.com, Inc. is a Nevada company that Montes created for the purpose of offering customers an application that would translate voicemail messages into emails.

         B. Defendants' auto-dialer services

         Montes provides robocalling, predictive dialing, and virtual telemarketer services to customers seeking to engage in high-volume telemarketing operations. Robocalling systems enable users to place many calls in a short period of time, either in randomized order or sequentially through a list of numbers. Virtual telemarketer services permit users to place capabilities allow users to maximize the odds that a live telemarketer will be available to take the call if a recipient answers the phone.

         During the period relevant to this litigation, Montes provided these services through TollFreeZone.com, Inc. Customers would sign up for Montes's services by filling out a form on the TollFreeZone.com, Inc. website, www.autodialer123.com. To submit the form, customers had to verify that they agreed to the TollFreeZone.com terms of use, which included abiding by all federal and state laws in making auto-dialed calls, including the TCPA. Montes would then provide customers with a user ID, password, and online training videos that he had created about how to use the auto-dialing system. The auto-dialing platform itself was furnished by a third party, the Panamanian company Technologic, Inc., which operated under the name “dialer.TO.” Once customers had access to the platform, they were able to upload a recorded message and phone number lists into the system and launch auto-dialing campaigns themselves. Customers were also able to “scrub” their phone number lists so that numbers on the federal Do-Not-Call registry would be removed. Many of Montes's customers were political entities, but about a third were commercial entities.

         Montes's personal involvement in the telemarketing campaigns run through TollFreeZone.com varied. Customers could, and often did, call him with questions about using the auto-dialing platform. Sometimes, Montes would do “all the legwork” for his clients, meaning he would load their data and their recordings into the system and then “hit send or start.” Dkt. 127 (Montes Dep. 101:24-25; 102:2; 117:13-24). He would sometimes assist in writing the prerecorded message. Id., at 120:13-121:8. But Montes did not personally make phone calls or lend his voice to prerecorded messages, and generally he did not concern himself with the content of customers' calls. He also did not monitor his customers to ensure that they were complying with the TCPA.

         C. Phone calls received by Cunningham

         Between 2015 and 2018, Cunningham received numerous unsolicited, non-emergency telemarketing calls. He kept track of those calls in a log, where he would record the following information: the date of the call; which of his three cell phone numbers had been dialed; the number from which the call was placed; and, in some cases, details about the person or company calling. See Dkt. 130-4, at 22-24, 28, 30-38. He made audio recordings of some of the calls. Id. at 39-40.

         Some of the calls came from customers of Montes: Jerry Maurer, Rich Holman, and representatives of “8 Figure Dream Lifestyle, ” “Elite Marketing Alliance, ” “Enagic, ” and “Tidom.” Montes confirmed that each of these had been customers of his at some point. Cunningham also received calls from representatives of “Elite Profit System” and “Secret Success Machine a/k/a SSM.” Dkt. 139, ¶ 23. Montes testified that he could not remember whether those companies were customers of his at his deposition, but they are among the entities listed in a drop-down menu on the autodialer123.com website.

         ANALYSIS

         This case concerns the TCPA's prohibition on unsolicited robocalls to cell phones. It is unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA creates a private right of action for one who receives prohibited robocalls: “A person who has received more than one telephone call within any 12-month ...


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