Rose v. New TSI Holdings, Inc.

Background

Patrick Rose brought the action on behalf of himself and others similarly situated against New TSI Holdings, Inc. (TSI), alleging violations of the Telephone Consumer Protection Act (TCPA). The complaint alleged that TSI made telemarketing calls to Rose’s cellphone, including calls to a number listed on the National Do Not Call Registry since 2004. Rose alleged that he used the cellphone only for personal purposes.

Rose alleged that he visited a Boston Sports Club location owned and operated by TSI in 2018 and later began receiving solicitation calls on behalf of the club. He allegedly asked TSI at least five times to stop contacting him, including by email, where he identified his number and wrote, “STOP CALLING AND TEXTING ME.” Despite those requests, he allegedly received approximately twelve calls between 2018 and 2021, including identical prerecorded messages offering Boston Sports Club membership promotions.

The complaint asserted three types of TCPA violations: calls to a number on the Do Not Call Registry; telemarketing calls using prerecorded messages without prior written consent; and calls made after Rose told TSI to stop contacting him. Rose sought treble damages for the last alleged violation. TSI moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim.

Court’s Analysis

Prerecorded messages. TSI argued that Rose’s allegation that he received prerecorded messages was conclusory. The court disagreed. Rose alleged that at least two messages were identical and included transcripts of them. He also alleged that his phone did not ring when he received the messages, which the court noted could indicate a type of prerecorded message known as a “ringless voicemail.” The court held that these allegations were sufficient at the motion-to-dismiss stage.

TSI’s responsibility. The court explained that a plaintiff seeking to enforce the TCPA’s Do Not Call provisions must show more than one call within a 12-month period by or on behalf of the same entity. Rose alleged that TSI owned the Boston Sports Clubs and that messages in March and April 2021 promoted the Boston Sports Club. The court concluded that these allegations made it plausible that TSI was responsible for the calls, either directly or through entities acting on its behalf.

Residential subscriber. TSI argued that Rose could not sue under the TCPA because he alleged only that prerecorded messages reached his cellphone and did not specifically allege that the number was residential. The court stated that cellphone numbers can qualify as residential numbers under the TCPA. Rose’s allegations that the number was personal, not used for business, and listed on the National Do Not Call Registry were sufficient at this stage.

Treble damages. The court explained that increased damages may be awarded for a knowing or willful TCPA violation. Rose alleged that he repeatedly told TSI to stop contacting him, identified his number in an email, and continued receiving prerecorded messages afterward. The court held that these allegations were sufficient for his request for treble damages to proceed.

Disposition

Judge J. Paul Oetken denied TSI’s motion to dismiss. The court did not enter a final judgment on whether TSI violated the TCPA; it ruled only that Rose had pleaded claims sufficient to move forward. TSI was ordered to file an answer within 21 days after the opinion and order. The court also directed the clerk to close the motion at Docket Number 19.