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Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 1 of 20 PageID #: 243UNITED STATES DISTRICT COURT FOR THEEASTERN DISTRICT OF TEXASFILED: 5/4/20U.S. DISTRICT COURTEASTERN DISTRICT COURTDAVID A. O'TOOLE, CLERKCRAIG CUNNINGHAM,Plaintiff,§§§v.§§Matrix Financial Services, LLC, National Car § 4:19-cv-00896-ALM-CANCure, LLC, Zander Collins & Smith, Sing for §Service, LLC, dba MEPCO, Wolf Marketing, §§LLC, Vincent Yates, Jeremy ValentinoDefendantPlaintiff’s Amended ComplaintParties1. The Plaintiff is Craig Cunningham and natural person and was present in Texas for allcalls in this case in Collin County.2. Matrix Financial Services, LLC., is a Texas corporation search that can be served at815 Brazos Street, ste 500, Austin, Tx 787013. National Car Cure, LLC is a Florida corporation that can be served via Reg Agent andcorp officer/manager, Zander, Collins, & Smith, LLC 3240 Professional Drive,Auburn, CA 95602 or via registered agent David Glenwinkel at 2120 Carey Ave Ste300, Cheyenne, WY 82001 or 12760 Luther Road, Auburn, CA 95603.4. Zander, Collins, & Smith, LLC is a Wyoming Corporation that is operating from3240 Professional Drive, Auburn, CA 95602 or via registered agent DavidGelnwinkel at 2120 Carey Ave Ste 300, Cheyenne, WY 82001 or 12760 Luther Road,
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 2 of 20 PageID #: 244Auburn, CA 95603.5. David Glenwinkel at 2120 Carey Ave Ste 300, Cheyenne, WY 82001 or 12760Luther Road, Auburn, CA 95603.6. Sing for Service, LLC DBA MEPCO is an Illinois Corporation Service Company,801 Adlai Stevenson Drive, Springfield, IL 627037. Wolf Marketing, LLC, is a defunct Florida corporation that can be served viasecretary of state or via corporate officer Jeremy Valentino is a natural person whocan be served at 3589 Rio Palmoa CT, North Las Vegas, NV 89031 or 99 Allen St.,Unit 201, Woonsocket, RI 028958. Vincent Yates, is a natural person who can be served at 2601 10th Ave., N. Ste 301Lakeworth FL 33461 or 208 Flagler St., Clewiston, FL 33440.9. Data Genie, LLC is a Florida corporation and can be served via secretary of state orvia corporate officer Jeremy Valentino is a natural person who can be served at 3589Rio Palmoa CT, North Las Vegas, NV 89031 or 99 Allen St., Unit 201, Woonsocket,RI 0289510. Jeremy Valentino is a natural person who can be served at 3589 Rio Palmoa CT,North Las Vegas, NV 89031 or 99 Allen St., Unit 201, Woonsocket, RI 02895.11. John/Jane Does 1-4 are other liable parties currently unknown to the Plaintiff.JURISDICTION AND VENUE12. Jurisdiction. This Court has federal-question subject matter jurisdiction overPlaintiff’s TCPA claims pursuant to 28 U.S.C. § 1331 because the TCPA is a federalstatute. Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012). This Court hassupplemental subject matter jurisdiction over Plaintiff’s claim arising under TexasBusiness and Commerce Code 305.053 because that claim: arises from the samenucleus of operative fact, i.e., Defendants’ telemarketing robocalls to Plaintiff; addslittle complexity to the case; and doesn’t seek money damages, so it is unlikely topredominate over the TCPA claims.
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 3 of 20 PageID #: 24513. Personal Jurisdiction. This Court has general personal jurisdiction over thedefendant because they have repeatedly placed calls to Texas residents, and deriverevenue from Texas residents, and the sell goods and services to Texas residents,including the Plaintiff.14. This Court has specific personal jurisdiction over the defendants because the calls atissue were sent by or on behalf of the Defendants and involved a Texas basedcompany selling car warranties to Texas based consumers.15. Venue. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(1)-(2)because a substantial part of the events giving rise to the claims—the calls and sale ofgoods and services directed at Texas residents, including the Plaintiff—occurred inthis District and because the Plaintiff resides in this District. residing in the EasternDistrict of Texas when he recieved a substantial if not every single call from theDefendants that are the subject matter of this lawsuit.16. This Court has venue over the defendants because the calls at issue were sent by or onbehalf of the above named defendants to the Plaintiff a Texas resident.THE TELEPHONE CONSUMER PROTECTION ACT OF 1991, 47 U.S.C. §22717. In 1991, Congress enacted the TCPA in response to a growing number of consumercomplaints regarding telemarketing.18. The TCPA makes it unlawful “to make any call (other than a call made for emergencypurposes or made with the prior express consent of the called party) using anautomatic telephone dialing system or an artificial or prerecorded voice to anytelephone number assigned to a cellular telephone service.” 47 U.S.C. §
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 4 of 20 PageID #: 246227(b)(1)(A)(iii).19. The TCPA makes it unlawful “to initiate any telephone call to any residentialtelephone line using an artificial or prerecorded voice to deliver a message withoutthe prior express consent of the called party, unless the call is initiated for emergencypurposes, is made solely pursuant to the collection of a debt owed to or guaranteed bythe United States, or is exempted by rule or order” of the Federal CommunicationCommission (“FCC”). 47 U.S.C. § 227(b)(1)(B).20. The TCPA provides a private cause of action to persons who receive calls in violationof § 227(b). 47 U.S.C. § 227(b)(3).21. Separately, the TCPA bans making telemarketing calls without a do-not-call policyavailable upon demand. 47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(d)(1).122. The TCPA provides a private cause of action to persons who receive calls inviolation of § 227(c) or a regulation promulgated thereunder. 47 U.S.C. § 227(c)(5).23. According to findings of the FCC, the agency vested by Congress with authority toissue regulations implementing the TCPA, automated or prerecorded telephone callsare a greater nuisance and invasion of privacy than live solicitation calls and can becostly and inconvenient.24. The FCC also recognizes that “wireless customers are charged for incoming callswhether they pay in advance or after the minutes are used.” In re Rules andRegulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014,14115 ¶ 165 (2003).25. The FCC requires “prior express written consent” for all autodialed or prerecorded1See Code of Federal Regulations, Title 47, Parts 40 to 60, at 425 (2017)(codifying a June 26, 2003 FCC order).
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 5 of 20 PageID #: 247telemarketing robocalls to wireless numbers and residential lines. In particular:[A]consumer’s written consent to receive telemarketing robocalls must be signed and besufficient to show that the consumer: (1) received clear and conspicuous disclosureof the consequences of providing the requested consent, i.e., that the consumer willreceive future calls that deliver prerecorded messages by or on behalf of a specificseller; and (2) having received this information, agrees unambiguously to receivesuch calls at a telephone number the consumer designates. In addition, the writtenagreement must be obtained without requiring, directly or indirectly, that theagreement be executed as a condition of purchasing any good or service.26. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of1991, 27 FCC Rcd. 1830, 1844 ¶ 33 (2012) (footnote and internal quotation marksomitted). FCC regulations “generally establish that the party on whose behalf asolicitation is made bears ultimate responsibility for any violations.” In the Matter ofRules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 10 FCCRcd. 12391, 12397 ¶ 13 (1995).27. The FCC confirmed this principle in 2013, when it explained that “a seller may beheld vicariously liable under federal common law principles of agency for violationsof either section 227(b) or section 227(c) that are committed by third-partytelemarketers.” In the Matter of the Joint Petition Filed by Dish Network, LLC, 28FCC Rcd. 6574, 6574 ¶ 1 (2013).28. Under the TCPA, a text message is a call. Satterfield v. Simon & Schuster, Inc., 569F.3d 946, 951 – 52 (9th Cir. 2009).29. A corporate officer involved in the telemarketing at issue may be personally liable
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 6 of 20 PageID #: 248under the TCPA. E.g., Jackson Five Star Catering, Inc. v. Beason, Case No. 1010010, 2013 U.S. Dist. LEXIS 159985, at *10 (E.D. Mich. Nov. 8, 2013) (“[M]anycourts have held that corporate actors can be individually liable for violating theTCPA where they had direct, personal participation in or personally authorized theconduct found to have violated the statute.” (internal quotation marks omitted));Maryland v. Universal Elections, 787 F. Supp. 2d 408, 415 – 16 (D. Md. 2011) (“Ifan individual acting on behalf of a corporation could avoid individual liability, theTCPA would lose much of its force.”).The Texas Business and Commerce Code 305.05330. The Texas Business and Commerce code has an analogus portion that is related to theTCPA and was violated in this case.31. The Plaintiff may seek damages under this Texas law for violations of 47 USC 227 orsubchapter A and seek 500 in statutory damages or 1500 for willful or knowingdamages.FACTUAL ALLEGATIONS32. This case relates to an extended car warranty policy issued by the Defendants.Calls to the Plaintiff33. Mr. Cunningham received multiple calls from a variety of spoofed caller ID’s thatcontained a pre-recorded message and were initiated using an automated telephonedialing system. The calls were on behalf of the named defendants. The calls had adelay of 3-4 seconds of dead air before the pre-recorded message began indicating thecalls were initiated using an ATDS.34. These calls were not related to any emergency purpose.
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 7 of 20 PageID #: 24935. The defendants did not have an internal do not call policy, did not place the Plaintiffon an internal do not call policy, in violation of 47 CFR 64.1200(d).36. Mr. Cunningham has limited data storage capacity on his cellular telephone.Incoming calls from the defendants consumed part of this capacity.37. No emergency necessitated the calls38. Each call was sent by an ATDS.Calls to the Plaintiff’s phone number ending in 197739. The first set of calls were to ***-***-197740. The calls contained a pre-recorded message and the caller ID was spoofed, and thePlaintiff alleges the following calls below at a 19 3:11 PM754-224-0253561-229-1044561-229-1044(561) 229-1044 inboundNational CarERMPx914689 CureVmailwifi41. The Plaintiff was emailed a policy with the number ERMPx914689 and contained thenames of the named defendants in the policy book.42. The second set of calls were to the Plaintiff’s cell phone ending in 181243. The Plaintiff alleges the following calls to his cell phone which represent at least 140calls solicting the Plaintiff for a car warranty. The Plaintiff was emailed a policyERMPX924876 as a result of the illegal telemarketing calls listed below.8/31/19 6:04 PM8/29/19 5:57 PM8/27/19 7:29 PM9/30/19 6:55 PM9/24/19 1:09 PM9/11/19 2:03 AM9/10/19 12:43 AM9/6/19 9:08 PMcallcallcallcallcallcallcallcall(716) 804-2990(716) 804-2990(716) 804-2990(877) 833-1487(214) 501-0277(337) 404-0415(615) 281-3501(866) doutboundoutboundoutboundoutboundCar warranty prerecordCar warranty prerecordCar warranty prerecord twice
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 8 of 20 PageID #: 2509/6/19 8:14 PM9/6/19 5:53 PM9/5/19 6:05 PM9/5/19 6:01 PM9/5/19 6:00 PM9/5/19 5:07 PM9/5/19 2:14 PM9/5/19 2:14 PM9/5/19 2:13 PM9/5/19 3:24 AM9/5/19 3:23 AM9/4/19 11:16 PM9/4/19 9:01 PM10/23/19 10:02 PM10/22/19 2:56 PM10/22/19 2:55 PM10/21/19 5:41 PM10/11/19 7:14 PM10/8/19 9:34 PM10/7/19 4:46 PM10/7/19 4:46 PM10/4/19 4:05 PM10/4/19 3:46 AM10/4/19 3:33 AM10/4/19 2:48 AM10/3/19 3:13 PM10/3/19 3:12 PM10/3/19 3:11 PM10/3/19 3:10 PM11/28/19 1:22 AM11/23/19 8:43 PM11/23/19 4:54 AM11/19/19 6:19 PM11/19/19 5:59 PM11/19/19 5:58 PM11/19/19 5:57 PM11/14/19 9:25 PM11/7/19 6:45 PM11/7/19 6:44 PM11/5/19 4:45 AM12/31/19 12:00 AM12/24/19 12:00 AM12/19/19 9:52 PM12/13/19 4:12 callcallcall(254) 400-2434(315) 533-8630(615) 745-3130(615) 745-3130(615) 745-3130(615) 745-3130(214) 275-9479(615) 645-7853(404) 382-6759(404) 382-6759(615) 645-7853(615) 609-2366(615) 645-7853(615) 645-7853(615) 725-6798(615) 725-6798(901) 755-9100(615) 661-6326(615) 725-6779(615) 861-8839(615) 861-8839(877) 833-1487(925) 397-4019(925) 397-4019(415) 841-3740(877) 833-1487(423) 651-0220(615) 717-8406(877) 833-1487(352) 348-7714(615) 724-4084(201) 716-2593(615) 724-4084(813) 694-9069(813) 694-9069(813) 694-9069(615) 794-4079(931) 644-1371(931) 644-1371(855) 540-1690423-520-4548720-325-8236call (202) 851-0243call (423) 376-917312s22s9m 50s2m 46s28s10s3m12/12/19 11:34 PM12/11/19 5:32 PM12/11/19 5:32 PM12/10/19 7:19 PM12/6/19 8:11 PM12/6/19 8:09 PMcallcallcallcallcallcall(423) 376-9173(629) 262-5047(629) 262-5047(888) 838-9010(629) 219-1185(629) 32s34s35s26s53s47s36s6s45s5s58s20sCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecord twiceCar warranty prerecordCar warranty prerecord twiceCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordvmailCar warranty prerecord
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 9 of 20 PageID #: 25112/6/19 6:39 PM1/29/20 12:00 AM1/29/20 12:00 AM1/29/20 12:00 AM1/28/20 5:51 PM1/27/20 12:00 AM1/24/20 12:00 AM1/23/20 11:39 PM1/23/20 11:38 PM1/23/20 12:00 AM1/17/20 4:45 PM1/10/20 12:00 AM1/4/20 12:00 AM1/8/20 6:17 PM1/8/20 6:16 PMcall (888) 838-7914615-783-5117615-724-4039615-722-1621call (980) 284-7009615-723-5195615-794-6239call (615) 724-4084call (651) 336-9918404-622-5000call (813) 681-6411615-725-5195720-325-8236call (580) 234-3467call (404) outboundoutboundoutbound1/8/20 5:33 PM call (580) 234-3467 35s1/7/20 7:09 AM call (720) 325-8236 17s1/4/20 12:00 AM720-325-8236inboundoutbound2/28/20 7:25 PM call (615) 655-8708 10s2/27/20 9:21 AM call (732) 261-6800 5s2/27/20 9:19 AM call (731) 238-9176 llcallcallcallcall(732) 261-6800(423) 621-5892(580) 234-3467(651) 336-9918(615) 723-5195(615) 783-5117(980) 284-7009(980) 284-7009(615) 783-5117(615) 722-1621(615) 724-4039(315) 692-2316(833) 984-2098(615) 724-4084(615) 750-2639(615) 720-2628(931) 202-9694(731) 238-9176(615) 721-2929(615) 655-8710(615) 721-2929(615) 721-2929(901) 617-19432x2x3x2x4x2x4xCar warranty prerecordCar warranty prerecord17s18s2/26/20 4:06 PM2/25/20 8:57 PM2/20/20 10:25 PM2/20/20 10:24 PM2/20/20 10:24 PM2/20/20 10:24 PM2/20/20 10:24 PM2/20/20 10:23 PM2/20/20 10:23 PM2/20/20 10:23 PM2/20/20 10:22 PM2/20/20 10:22 PM2/20/20 10:21 PM2/20/20 10:21 PM2/20/20 10:20 PM2/20/20 10:19 PM2/20/20 10:18 PM2/20/20 10:17 PM2/20/20 10:17 PM2/19/20 5:38 PM2/19/20 12:23 AM2/18/20 5:35 PM2/17/20 8:38 PMCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecord12s10s13s25sCar warranty ndinbound2/17/20 3:44 PM call (615) 721-2929 37s2/12/20 7:55 PM call (931) 202-9694 32s2/12/20 7:50 PM call (931) 202-9694 51sinboundoutboundoutbound9s9s7s3s30s1sCar warranty prerecord twiceCar warranty prerecordvmailCar warranty prerecordvmailCar warranty prerecordCar warranty prerecordCar warranty prerecord 3xCar warranty prerecordvmailCar warranty prerecord
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 10 of 20 PageID #: 2522/12/20 7:50 PM call (931) 202-9694 20soutbound2/5/20 3:48 AM call (615) 724-4084 1s2/4/20 3:34 AM call (615) 750-2628outboundoutbound2/3/20 8:46 PM call (615) 724-4084 37sinbound3/27/20 9:54 PM3/27/20 4:19 PM3/27/20 2:03 PM3/26/20 9:27 PM3/26/20 3:11 PM3/25/20 9:17 PM3/25/20 7:40 PM3/20/20 4:00 AM3/20/20 4:00 AM3/16/20 7:21 PM3/13/20 1:49 AM3/11/20 11:33 PM3/6/20 3:01 AM3/5/20 5:20 PM3/4/20 11:17 PM3/3/20 11:55 PM3/2/20 6:51 PM4/7/20 10:53 AM4/10/20 12:00 AM4/13/20 12:00 AM4/13/20 12:00 AM4/16/20 12:00 AM4/22/20 12:00 AM4/29/20 12:00 callcallcallcallcall(615) 558-9965(615) 229-3073(423) 456-3014(629) 209-5070(901) 231-2543(629) 225-1136(615) 229-3963(440) 796-2817(615) 718-2179(615) 893-4480(732) 261-6800(615) 867-8020(971) 220-3701(561) 708-6154(352) 404-3199(615) 725-2139(732) s19s19s19s19s26s19s8s5s1m undoutboundoutbound6soutbound5soutbound16m 56s inboundCar warranty prerecordvmail6xCar warranty prerecordCar warranty prerecordvmailCar warranty prerecordvmailCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecordCar warranty prerecord44. The Plaintiff bought a policy on April 7th 2020 related to the calls coming to his cellphone ending in 1812.45. The Plaintiff’s credit card was charged by a familiar party to the action National CarCure, LLC (Ex A See credit card charge) and contained the same identical partiesMatrix, and Sing For Service, indicating that despite being on notice that the Plaintiffdidn’t want to recieve unsolicited telemarketing calls and that National Car Cure wasengaged in illegal telemarketing efforts by being served with a copy of the originalcomplaint, both Matrix and Sing For Service continued to do business with
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 11 of 20 PageID #: 253Defendants Matrix and National Car Cure.46. Given that the calls to the phone number ending in 1812 happened after the filing ofthis lawsuit, all of the defendants were on notice that the Plaintiff didn’t want torecieve telemarketing calls nad knew that National Car Cure was engaging in illegalrobocalls in order to generate business on behalf of Sing For Service, and Matrix.47. Furthermore both contracts the policy documents indicated that the Plaintiff wasbeing entered into a contract for a payment plan involving Sing for Service, LLC, dbaMEPCO and gave MEPCO credit card authorization to charge the Plaintiff’s card.48. The warranty policy (Ex B , page F1) indicated that it was seeking to bind thePlaintiff with Sing For Service, LLC into payment plan agreement relating to aservice contract (Extended car warranty) from the seller (National Car Cure) that isissued by the administrator (Matrix Financial).49. Plateau Casualty Insurance Company is an obligor and is a vicariously liable party asaccording to the service contract, Matrix Financial is insured by an insurance policyissued by Plateau Casualty Insurance Company for performance under the contractand Plateau Casualty was paid as a result of Defendant Matrix gaining the Plaintiff asa customer through illegal robocalls.50. Defendant Zander, Collins,and Smith, LLC is the managing entity for National CarCure and directed National Care cure to make illegal telemarketing calls at all timesrelevant to the complaint. Each of the alleged calls was at the direction and control ofZander, Collins, and smith and as such, Defendant Zander is a liable party.Liability of Defendant MEPCO51. Defendant MEPCO is a vicariously liable party as they knew that Matrix and
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 12 of 20 PageID #: 254National Car cure were engaged in illegal telemarketing based on the Plaintiff’soriginal complaint, served on February 20, 2020 and despite this notice, MEPCO didnot sever business ties with these companies and continued to ratify the conduct bycontinuing to accept customers generated from Defendant Matrix and DefendantNational Car Cure.52. Defendant MEPCO is liable under the concept of actual authority as they have acontract with Defendant Matrix and National Car Cure to generate customers forDefendant MEPCO through illegal telemarketing.Gus Renny, William Finneran, and National Car Cure’s Defendant’s Knowingand Willful Violations of Telemarketing Regulations53. Mr. Cunningham asked for an internal do-not-call policy from the defendants, butnone was provided.54. Gus Renny, William Finneran, and National Car Cure directed and contractedwith Wolf Marketing to place illegal telemarketing calls to the Plaintiff’s cell phonesin order to generate leads and sales to National Car Cure in order to sell vehicleservice contracts issued by Defendant Matrix.55. Gus Renny, William Finneran and National Car Cure knowingly violated theTCPA by initiating automated calls with pre-recorded messages to the Plaintiff, asthey were previously sued in Federal court for violating the TCPA.56. Gus Renny, William Finneran and National Car Cure did not have a written donot-call policy while it was sending Mr. Cunningham text messages.57. Gus Renny, William Finneran and National Car Cure did not train its agentsengaged in telemarketing on the existence and use of any do-not-call list.
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 13 of 20 PageID #: 25558. Gus Renny, William Finneran and National Car Cure calls did not provide Mr.Cunningham with the name of the individual caller or the name of the person or entityon whose behalf the call was being made.Wolf Marketing, LLC, Genie Marketing, LLC, Vincent Yates’, Jeremy Valentino’sDefendant’s Knowing and Willful Violations of Telemarketing Regulations59. Mr. Cunningham asked for an internal do-not-call policy from these defendants, butnone was provided.60. Wolf Marketing, LLC, Genie Marketing, LLC, Vincent Yates’, JeremyValentino initiated the illegal calls to the Plaintiff’s phone numbers in this case inorder to generate leads and sales to National Car Cure in order to sell vehicle servicecontracts issued by Defendant Matrix.61. Jeremy and Vincent direct their corporations Wolf Marketing and Genie Marketing tomake robocalls on behalf of Matrix and National Car Cure, LLC and use thecorporations interchangably as alter egos of each other.62. Wolf Marketing, LLC, Genie Marketing, LLC, Vincent Yates’, JeremyValentino knowingly violated the TCPA by initiating automated calls with prerecorded messages to the Plaintiff as they used a purpose built dialing platform toplace illegal calls designed to avoid detection.63. Wolf Marketing, LLC, Genie Marketing, LLC, Vincent Yates’, JeremyValentino did not have a written do-not-call policy while it was sending Mr.Cunningham text messages.64. Wolf Marketing, LLC, Genie Marketing, LLC, Vincent Yates’, JeremyValentino did not train its agents engaged in telemarketing on the existence and use
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 14 of 20 PageID #: 256of any do-not-call list.65. Wolf Marketing, LLC, Genie Marketing, LLC, Vincent Yates’, JeremyValentino calls did not provide Mr. Cunningham with the name of the individualcaller or the name of the person or entity on whose behalf the call was being made.The Plaintiff’s cell phone is a residential number66. The calls were to the Plaintiff’s cellular phones ending in 1977 and 1812 which is thePlaintiff’s personal cell phone that he uses for personal, family, and household use.The Plaintiff maintains no landline phones at his residence and has not done so for atleast 10 years and primarily relies on cellular phones to communicate with friends andfamily. The Plaintiff also uses his cell phone for navigation purposes, sending andreceiving emails, timing food when cooking, and sending and receiving textmessages. The Plaintiff further has his cell phone registered in his personal name,pays the cell phone from his personal accounts, and the phone is not primarily usedfor any business purpose.INJURY, HARM, DAMAGES, and ACTUAL DAMAGES AS A RESULT OF THECALLS67. Defendant’s calls harmed the Plaintiff by causing the very harm that Congress soughtto prevent—a “nuisance and invasion of privacy.”68. Defendant’s calls harmed the Plaintiff by trespassing upon and interfering withPlaintiff’s rights and interests in Plaintiff’s cellular telephone by placing unwantedtelemarketing calls to the Plaintiff.69. Defendant’s calls harmed the Plaintiff by trespassing upon and interfering withPlaintiff’s rights and interests in Plaintiff’s cellular telephone line by placing
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 15 of 20 PageID #: 257unwanted telemarketing calls to the Plaintiff.70. Defendant’s calls harmed the Plaintiff by intruding upon Plaintiff’s seclusion.71. The Plaintiff has been harmed, injured, and damages by the calls including, but notlimited to:Reduced Device Storage spaceReduced data plan usageInvasion of privacyLost time tending to text messagesDecreased cell phone battery lifeMore freqent charging of my cell phone resulting in reduced enjoyment and usage of mycell phoneReduced battery usageAnnoyanceFrustruationAngerViolations of the Texas Business and Commerce Code 305.05372. The actions of the defendants violated the Texas Business and Commerce Code305.053 by placing automated calls to a cell phone which violate 47 USC 227(b). Thecalls by the Defendants and her corporation violated Texas law by placing calls with apre-recorded message to a cell phone which violate 47 USC 227(c)(5) and 47 USC227(d) and 47 USC 227(d)(3) and 47 USC 227(e).73. The calls by the defendants violated Texas law by spoofing the caller ID’s per 47
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 16 of 20 PageID #: 258USC 227(e) which in turn violates the Texas statute.I. FIRST CLAIM FOR RELIEF(Non-Emergency Robocalls to Cellular Telephones, 47 U.S.C. § 227(b)(1)(A))(Against All Defendants)1.Mr. Cunningham realleges and incorporates by reference each and everyallegation set forth in the preceding paragraphs.2.The foregoing acts and omissions of Defendants and/or their affiliates oragents constitute multiple violations of the TCPA, 47 U.S.C. § 227(b)(1)(A), by makingnon-emergency telemarketing robocalls to Mr. Cunningham’s cellular telephone numberwithout his prior express written consent.3.Mr. Cunningham is entitled to an award of at least 500 in damages foreach such violation. 47 U.S.C. § 227(b)(3)(B).4.Mr. Cunningham is entitled to an award of up to 1,500 in damages foreach such knowing or willful violation. 47 U.S.C. § 227(b)(3).5.Mr. Cunningham also seeks a permanent injunction prohibitingDefendants and their affiliates and agents from making non-emergency telemarketingrobocalls to cellular telephone numbers without the prior express written consent of thecalled party.
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 17 of 20 PageID #: 259II. SECOND CLAIM FOR RELIEF(Telemarketing Without Mandated Safeguards, 47 C.F.R. § 64.1200(d))(Against All Defendants)6.Mr. Cunningham realleges and incorporates by reference each and everyallegation set forth in the preceding paragraphs.7.The foregoing acts and omissions of Defendants and/or their affiliates oragents constitute multiple violations of FCC regulations by making telemarketingsolicitations despite lacking:a.a written policy, available upon demand, for maintaining a do-not-call list, in violation of 47 C.F.R. § 64.1200(d)(1); 2b.training for the individuals involved in the telemarketing on theexistence of and use of a do-not-call list, in violation of 47 C.F.R. § 64.1200(d)(2);3 and,c.in the solicitations, the name of the individual caller and the nameof the person or entity on whose behalf the call is being made, in violation of 47 C.F.R. §64.1200(d)(4).48.Mr. Cunningham is entitled to an award of at least 500 in damages foreach such violation. 47 U.S.C. § 227(c)(5)(B).9.Mr. Cunningham is entitled to an award of up to 1,500 in damages foreach such knowing or willful violation. 47 U.S.C. § 227(c)(5).2See id. at 425 (codifying a June 26, 2003 FCC order).See id. at 425 (codifying a June 26, 2003 FCC order).4See id. at 425 – 26 (codifying a June 26, 2003 FCC order).3
Case 4:19-cv-00896-ALM-CAN Document 50 Filed 05/04/20 Page 18 of 20 PageID #: 26010.Mr. Cunningham also seeks a permanent injunction prohibitingDefendants and their affiliates and agents from making telemarketing solicitations untiland unless they (1) implement a do-not-call list and training thereon and (2) include thename of the individual caller and Defendant’s name in the solicitations.III.THIRD CLAIM FOR RELIEF: Violations of The Texas Business andCommerce Code 305.05311.Mr. Cunningham realleges and incorporates by reference each and everyallegation set forth in the preceding paragraphs.12.The foregoing acts and
Matrix Financial Services, LLC, National Car Cure, LLC, Zander Collins & Smith, Sing for Service, LLC, dba MEPCO, Wolf Marketing, LLC, Vincent Yates, Jeremy Valentino Defendant § § § § § § 4:19-cv-00896-ALM-CAN § § § Plaintiff’s Amended Complaint Parties 1. The Plaintiff is Craig Cunningham and natural person and was present in Texas .
