Worsham v. Ehrlich

JAMES R. EYLER, Judge. Michael Worsham, appellant, appeals from the grant of various motions to dismiss 1 his amended complaint in favor of Robert Ehrlich (“Ehrlich”), James Reilly (“Reilly”), David Craig (“Craig”), and Rudolph Giuliani (“Giuliani”), appellees, in the Circuit Court for Harford County. The amended complaint alleged violations of the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 , et. seq. (“TCPA”), and the Maryland Telephone Consumer Protection Act, Maryland Code (2005 Repl.Vol.), § 14-3201 of the Commercial Law Article (“MDTCPA”), and sought damages and injunctive relief.

The alleged violations of the TCPA and the MDTCPA were based upon prerecorded political campaign calls soliciting votes, made by or on behalf of appellees, which calls failed to contain the telephone number of the business or entity responsible for the call, in violation of the TCPA. On appeal, appellant contends that the circuit court erred in (1) dismissing the suit because there was no dispute that the calls were made, and that they failed to include the required disclosure, and (2) granting appellee Giuliani’s motion to dismiss without holding a hearing pursuant to Maryland Rule 2-311(f), after one was requested by appellant. We shall affirm. Procedural and Factual Background On November 6, 2006, appellant filed a complaint in the circuit court against Ehrlich, Kristen Cox, 2 Reilly, Craig, and ⁷¹⁶ Common Sense Ohio.

The complaint alleged that during October and November of 2006, the various defendants, each of whom were at that time candidates for public office, or were promoting candidates for public office, initiated unsolicited pre-recorded telephone calls to appellant’s residence on their behalf as part of their political campaigns. The caller ID system connected with appellant’s telephone did not disclose the point of origin of several of the calls, and none of the calls contained the telephone number of the person or entity responsible for the call. Appellant sought statutory damages under both the TCPA and the MDTCPA, as well as injunctive relief under the TCPA. On December 6, 2006, Reilly and Craig filed motions to dismiss.

Appellant responded on December 27, 2006. On January 9, 2007, appellant filed an amended complaint, adding Giuliani and Freeeats.com, Inc. as defendants, and attached as an exhibit Verizon “call trace” phone records from the “Verizon Unlawful Call Center,” which indicated the phone numbers from which the various calls were initiated. On January 16, 2007, appellant filed a motion for partial summary judgment, and again attached the aforementioned exhibit, and in addition attached an “Affidavit of Michael Worsham.” On January 29, 2007, appellee Ehrlich filed an opposition to that motion, as well as his own motion to dismiss. On March 22, 2007, appellant filed a notice of dismissal with prejudice as to Common Sense Ohio and Freeeats.com, Inc. On April 6, 2007, Craig and Reilly filed a supplemental motion to dismiss, and on April 7, 2007, appellant filed a response.

On April 16, 2007, appellant filed another motion for summary judgment. On May 1, 2007, appellee Giuliani filed a motion to dismiss the amended complaint. The same day, a hearing was held on Ehrlich, Craig, and Reilly’s motions to dismiss, and on appellant’s motion for partial summary judgment. At the hearing, ⁷¹⁷ appellant conceded that the calls in question were political in nature, and not commercial.

On May 16, 2007, appellant responded to Giuliani’s motion to dismiss, and requested a hearing on the motion. On June 18, 2007, appellant filed a second request for hearing. On June 25, 2007, the court issued a memorandum opinion and order granting appellees’ motions to dismiss. 3 The court implicitly acknowledged that it was considering matters outside of the pleadings, i.e., the exhibits to appellant’s motion for partial summary judgment, when it set forth the law relating to the conversion of a motion to dismiss to a motion for summary judgment. The court, in its well-reasoned opinion, addressed the various arguments made by the parties and provided numerous alternative grounds for dismissal.

The court ruled that it had personal jurisdiction over appellee Giuliani; that injunctive relief was not available because the political campaigns were over, further calls were unlikely, and appellant sustained no irreparable harm; that it had no subject matter jurisdiction as to appellees Giuliani, Craig, and Reilly, because the aggregate damage claims against each was below the circuit court’s threshold jurisdictional requirement of $5,000; 4 that the individual candidates were not proper parties, and that the entities responsible for the calls were the proper parties; that the statutes and regulations did not violate the First Amendment by unduly restricting political speech; that the phone calls were not commercial in nature pursuant to C.F.R. § 64.1200(a), implementing 47 U.S.C. § 227 (b), and that pursuant to C.F.R. § 64.1200(b), implementing 47 U.S.C. ⁷¹⁸ § 227(d), there was no private right of action; and, that the MDTCPA requires a violation of the federal TCPA, and the Maryland statute can not create a private right of action where none exists under the federal statute because it is preempted by the federal statute. On July 5, 2007, appellant filed a motion to alter and amend the June 25 opinion and order, arguing, inter alia, that the court failed to provide a hearing on Giuliani’s motion to dismiss, as is required when one is requested pursuant to Rule 2 — 311(f). On August 7, 2007, the court issued a memorandum opinion and order denying appellant’s motion to alter and amend, ruling that an additional hearing on Giuliani’s motion to dismiss pursuant to Rule 2-311(f) would have been pointless as the court had already heard and considered legal argument on appellant’s opposition to the motions to dismiss at the May 1 hearing, and an additional hearing on Giuliani’s motion would serve only to hear the same positions reargued. As we shall explain below, we need not address each of the circuit court’s conclusions to reach our decision.

Discussion A. Parties’ Contentions 1. Appellant Initially, appellant observes that pursuant to 47 U.S.C. § 227 (b)(1)(B), “Congress banned the initiation of all prerecorded voice phone messages,” (emphasis in original) to a residential telephone line, without the consent of the called party, unless exempted by the Federal Communications Commission (“the Commission”), pursuant to the authority given to it by TCPA to promulgate regulations. Appellant contends that the Commission, pursuant to the regulation appearing at 47 C.F.R. § 64.1200 (b)(2) — which provides that all prerecorded messages shall state the telephone number of the business or entity responsible for the call-prohibited all calls not in compliance. Relying on Oklahoma ex rel.

Edmondson v. ⁷¹⁹ Pope, 505 F.Supp.2d 1098 (W.D.Ok.2007), appellant explains that § 64.1200(b)(2) “applies to all prerecorded messages and does not exempt non-commercial, ‘political calls,’ or any other type of prerecorded calls.” Appellant also argues that subject matter jurisdiction was proper in the circuit court as to Giuliani, Craig, and Reilly, regardless of whether the amount in controversy exceeded the statutory minimum of $5,000, because he was seeking injunctive relief, and only a court of equity can provide the remedy of injunctive relief. Appellant next argues that the individual candidates were proper parties because the calls were made on their behalf, and the TCPA establishes strict liability and strict vicarious liability. Further, appellant avers that the TCPA is a remedial consumer protection statute that should be liberally construed. Because we shall conclude that no private right of action exists under the statute upon which appellant’s claim is based, we need not reach this issue, and we shall not discuss appellees’ positions in that regard.

Appellant acknowledges that the MDTCPA makes a violation of the TCPA a violation of Maryland law, 5 and argues that he “alleged a proper violation and claim under the [MDTCPA] ... [thus, he] can maintain a private action for any violation of the federal TCPA or related FCC regulations.” Appellant acknowledges that although “consumers do not have a private right of action arising under the federal TCPA § 227(d), because § 227(d) does not contain a private right of action, such as TCPA § 227(b) and § 227(c) ... have,” the MDTCPA “creates its own private right of action for any violation of the ⁷²⁰ federal TCPA,” including § 227(d) and any regulations promulgated thereto; thus, although a § 227(d) violation is not actionable directly under federal law, it is actionable under the MDTCPA. Appellant’s final argument is that the court erred in dismissing the amended complaint against Giuliani without holding a hearing, when a hearing was requested pursuant to Maryland Rule 2 — 311(f). 2. Appellees Appellees Ehrlich and Giuliani contend that, as the circuit court found, 47 C.F.R. § 64.1200 (b)(2), the regulation serving as the basis for appellant’s claim, was not promulgated pursuant to § 227(b), as appellant argued below, 6 but rather, was promulgated pursuant to § 227(d), which does not provide for a private right of action. Thus, according to Ehrlich and Giuliani, in the absence of a private right of action in the first place, the court properly dismissed appellant’s amended complaint.

Next, appellees argue that, contrary to appellant’s assertion, when there is no private right of action under the federal TCPA, the MDTCPA does not create its own private right of action because the MDTCPA is preempted by the TCPA, and the MDTCPA can not establish an independent private right of action for violations of the federal TCPA. Appellees, who do not consider appellant’s claim for injunctive relief as a question of subject matter jurisdiction, next aver that appellant’s request for injunctive relief is moot ⁷²¹ because he had no private right of action to begin with and, moreover, that the conduct at issue had ceased. With regard to subject matter jurisdiction, appellees assert that the circuit court correctly concluded that it did not have subject matter jurisdiction over appellee Giuliani because the monetary damages attributable to Giuliani could not be aggregated to meet the amount in controversy requirement. Finally, appellees contend that the court did not err in failing to hold an additional Rule 2 — 311(f) hearing on Giuliani’s motion to dismiss, as the legal arguments raised in Giuliani’s motion and appellant’s opposition thereto had already been fully considered at the May 1 hearing, and that in any event, any error was harmless.

Appellees Craig and Reilly argue that the calls in question were not commercial in nature; thus, the identifying information was not required, and moreover, C.F.R. § 64.1200(b), promulgated pursuant to § 227(d), does not provide for a private right of action. Next, appellees contend that because the federal TCPA preempts the MDTCPA, and because there no private right of action under the federal law, there is no foundation for a state claim. Appellees also assert that we should affirm the circuit court on the basis of “misjoinder of parties, conduct and alleged separate acts and conduct in the same [cjount without setting out factual allegations to establish probable cause of a conspiracy created and joinder by each [djefendant therein.” We shall not address this contention, as it was not decided by the circuit court. 7 In any event, it is unnecessary for us to address it because of our disposition of the issues properly before us. ⁷²² B. Standard of Review Ordinarily, in reviewing the dismissal of a complaint on a motion to dismiss, “we look only to the allegations in the complaint and any exhibits incorporated in it and ‘assume the truth of all well-pled facts in the complaint as well as the reasonable inferences that may be drawn from those relevant and material facts.’ ” Smith v. Danielczyk, 400 Md. 98, 103-04 , 928 A.2d 795 (2007) (quoting Ricketts v. Ricketts, 393 Md. 479, 491-92 , 903 A.2d 857 (2006)) (quoting in turn, Porterfield v. Mascari II, Inc., 374 Md. 402, 414 , 823 A.2d 590 (2003)). As acknowledged by the circuit court in its written opinion, Maryland Rule 2-322(c) provides, however, that if, on a motion to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Maryland Rule 2-501, which governs motions for summary judgment.

Maryland Rule 2-322(c). Thus, Maryland Rule 2-322(c) gives the trial court discretion to convert a motion to dismiss to a motion for summary judgment by considering matters outside the pleading. Hrehorovich v. Harbor Hosp. Ctr., Inc., 93 Md.App. 772, 784-85 , 614 A.2d 1021 (1992).

If matters outside the pleading are excluded by the trial court, then it must decide the motion based on the legal sufficiency of the pleading. Id. at 782 , 614 A.2d 1021 . If, on the other hand, the trial judge does not exclude such matters, then the motion shall be treated as one for summary judgment. Okwa v. Harper, 360 Md. 161, 177 , 757 A.2d 118 (2000).

In the event that a trial court decides to treat a motion as one for summary judgment, it must provide the parties with a reasonable opportunity to present, in a form suitable for consideration on summary judgment, additional pertinent material. Antigua Condominium Assoc. v. Melba Investors Atlantic, Inc., 307 Md. 700, 719 , 517 A.2d 75 (1986). That is because a non-moving party may be prejudiced if a trial court treats a motion to dismiss as a motion for summary judgment by considering matters outside the pleading, but does not give the non-moving party a reasonable opportunity to present material ⁷²³ that may be pertinent to the court’s decision, as required by Maryland Rule 2-501. Green v. H & R Block, Inc., 355 Md. 488, 502 , 735 A.2d 1039 (1999).

In the present ease, appellees’ motions to dismiss did not present matters outside the pleadings, but, as indicated above, appellant attached extraneous material, i.e., the affidavit, to his motion for partial summary judgment, and argued his position in support of that motion at the May 1 hearing. Generally the introduction of affidavits of fact will operate to convert a motion to dismiss into a motion for summary judgment. See Beyond Systems, Inc. v. Realtime Gaming, 388 Md. 1, 12 n. 10, 878 A.2d 567 (2005); Green, 355 Md. at 501 , 735 A.2d 1039 . There is no indication on the record that the court excluded the facts submitted to it through the exhibit in ruling on the motions to dismiss; thus, we must assume that they were considered.

As appellant did present material to the court in the form of the motion and attached exhibits, there is no danger that he was prejudiced by the trial court’s treatment of the motion as one for summary judgment. Accordingly, we shall treat the court’s ruling as a grant of summary judgment. The question of whether a trial court’s grant of summary judgment was proper is a question of law subject to de novo review on appeal. Livesay v. Baltimore, 384 Md. 1, 9 , 862 A.2d 33 (2004).

Summary judgment is appropriate when there is no genuine dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law. Maryland Rule 2-501(f). On appeal, the appellate court will review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party. Myers v. Kayhoe, 391 Md. 188, 203 , 892 A.2d 520 (2006).

In reviewing a grant of summary judgment under Maryland Rule 2-501, we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Wells Fargo Home Mont ⁷²⁴ gage, Inc. v. Neal, 398 Md. 705, 714 , 922 A.2d 538 (2007) (quoting Livesay, 384 Md. 1, 9-10 , 862 A.2d 33 (2004)). We note that there are no disputes of material fact at issue before us, as appellees do not dispute that the calls were made and that they did not contain the telephone number of the person or entity responsible for them; thus, we shall turn directly to whether appellees were entitled to judgment as a matter of law. C. Subject Matter Jurisdiction As a preliminary matter, with respect to subject matter jurisdiction, as noted by appellant, the circuit court determined that when appellant’s damage claims were aggregated as to each defendant, only appellant’s damage claims against Ehrlich reached the amount in controversy requirement for the circuit court to maintain subject matter jurisdiction over him.

In its opinion, the court also discussed the remedy of injunctive relief, and the