Lamont v . Furniture North 14-cv-036-LM 4/15/14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph L . Lamont and Rita Lamont

v. Civil N o . 14-cv-036-LM Opinion N o .

Furniture North, LLC d/b/a Bob’s Discount Furniture

O R D E R

Joseph L . Lamont (“Mr. Lamont”) and Rita Lamont (“Mrs.

Lamont”) (collectively “the Lamonts”) brought suit against

Furniture North, LLC d/b/a Bob’s Discount Furniture (“BDF”)

claiming that it violated the Telephone Consumer Protection Act

(“TCPA”),

2 7 , by making automated calls to their

cellular telephones without their express consent. The Lamonts

also claim that BDF violated the New Hampshire Consumer

Protection Act (“CPA”), N.H. Rev. Stat. Ann. (“RSA”) § 358-A, by

misrepresenting when it would deliver furniture that they had

purchased, by misrepresenting that this furniture would arrive

fully assembled, and by not delivering a necessary component of

one of the pieces of furniture. This matter is before the court

upon a motion to dismiss filed by BDF. For the reasons that

follow, the motion to dismiss is granted in part. Standard of Review

Under Rule 12(b)(6), the court must dismiss a complaint

upon motion of the opposing party unless the complaint

“contain[s] sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.”

González-Maldonado v . MMM Healthcare, Inc.,

4 4 , 247

(1st Cir. 2012) (quoting Ashcroft v . Iqbal,

6 2 , 678

(2009)); citing Bell Atl. Corp. v . Twombly,

4 4 , 570

(2007)) (internal quotation marks omitted). The objective of

the court’s inquiry is not to determine “whether a plaintiff

will ultimately prevail[,] but whether the claimant is entitled

to offer evidence to support [its] claims.” Scheuer v . Rhodes,

3 2 , 236 (1974). When assessing a complaint under Rule

12(b)(6), the court must “accept[] as true all well-pled facts

in the complaint and draw[] all reasonable inferences in favor

of [the] plaintiff[].” Plumbers’ Union Local N o . 12 Pension

Fund v . Nomura Asset Acceptance Corp.,

6 2 , 771 (1st

Cir. 2011) (citing SEC v . Tambone,

(1st Cir.

2010) (en banc)). In addition to the complaint itself, “[t]he

court can consider, [among other things], . . . concessions in

the complainant’s response to the motion to dismiss.” Arturet-

Velez v . R.J. Reynolds Tobacco Co.,

0 , 13 n.2 (1st

Cir. 2005).

2 Background

Except where otherwise indicated, the following facts are

drawn from the Lamonts’ complaint and are taken to be true for

the limited purpose of ruling on the motion before the court.

On December 7 , 2013, Mrs. Lamont purchased an end table, a

bookcase, and two bunk beds from BDF. BDF advised Mrs. Lamont

that the items would be delivered fully assembled and would

arrive during a three-hour window of time on the day of

delivery. BDF also informed Mrs. Lamont that the Lamonts would

be advised of the delivery ahead of time. The Lamonts have

conceded that Mrs. Lamont gave BDF both her own cellular

telephone number and her husband’s.

On December 1 2 , BDF delivered the end table, bookcase, and

a partial bunk bed to the Lamonts’ residence. The bookcase was

damaged and taken back by BDF. BDF left the pieces of the bunk

bed on the Lamonts’ bedroom floor. On December 1 9 , BDF brought

another bookcase and the remainder of the bunk bed to the

Lamonts’ home. The Lamonts later discovered that the bookcase

was not fully assembled.

A second bunk bed was scheduled to be delivered at the

Lamonts’ home on January 2 , 2014, between 1:50 p.m. and 4:50

p.m. At approximately 1:00 p.m., Mrs. Lamont received a call to

notify her that BDF’s delivery truck would be arriving closer to

3 1:30 p.m. than 1:50 p.m. Mrs. Lamont returned home by 1:30

p.m., but the delivery truck never arrived. Mrs. Lamont called

BDF, and BDF informed her that the delivery had been cancelled.

On January 9, BDF delivered part of the second bunk bed.

However, the second bunk bed was missing a trundle. As of

January 2 3 , BDF had still not delivered the trundle.

Before each delivery, BDF called the Lamonts on their

respective cellular telephones with automated messages regarding

the delivery. The Lamonts received at least four automated

calls prior to each delivery. BDF also made at least one

additional automated call to the Lamonts after the January 9

delivery requesting that they take a survey.

Discussion

In their two-count complaint, the Lamonts claim that BDF

violated both the TCPA and the CPA. The court examines each

count in turn.

A . Count I : Telephone Consumer Protection Act

In Count I , the Lamonts claim that BDF violated the TCPA by

making automated calls to their cellular telephones without

their express permission. BDF argues that it is entitled to

dismissal of the Lamonts’ TCPA claim because they consented to

the calls by providing their phone numbers.

4 Under the TCPA,

[i]t shall be unlawful for any person within the United States[] . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice[] . . . []to any telephone number assigned to a . . . cellular telephone service[.]

(b)(1).

In a TCPA claim, whether or not express consent is given is

not an element of the claim, but is instead “an affirmative

defense for which the defendant bears the burden of proof.”

Himes v . Client Servs. Inc., ___ F. Supp. 2d, ___, ___,

(D.N.H. Jan. 2 , 2014) (internal quotation marks

omitted). A defendant may rely on an affirmative defense when

moving to dismiss a claim where “(i) the facts establishing the

defense are definitively ascertainable from the complaint and

the other allowable sources of information, and (ii) those facts

suffice to establish the affirmative defense with certitude.”

Nisselson v . Lernout,

(1st Cir. 2006)

(internal quotation marks omitted).

Under the TCPA, Congress authorized a private right of

action to enforce the Act.

(b)(3).

Additionally, Congress authorized the Federal Communications

Commission (“FCC”) to prescribe the necessary regulations to

implement the TCPA.

(b)(2). With respect to

5 consent, the FCC issued a ruling that “persons who knowingly

release their phone numbers have in effect given their

invitation or permission to be called at the number which they

have given, absent instructions to the contrary.” In re Rules &

Regs. Implementing the Tel. Consumer Prot. Act of 1991 (1992

Report and Order), 7 FCC Rcd. 8752, 8769,

, at

**11 (Oct. 1 6 , 1992); see also In re Rules & Regs. Implementing

the Tel. Consumer Prot. Act of 1991 (2008 Report and Order), 23

FCC Rcd. 559, 5 6 4 ,

, at **3 (Jan. 4 , 2008)

(reiterating the same ruling).

In 2012, the FCC expanded the express consent requirement

to require express written consent for telemarketing calls. See

In re Rules & Regs. Implementing the Tel. Consumer Prot. Act of

1991 (2012 Report and Order), 27 FCC Rcd. 1830, 1831, 1837-38,

, at * * 1 , **5-6, (Feb. 1 5 , 2012). In this ruling,

the FCC did not expand the consent requirement for informational

calls, noting that “bank account balance, credit card fraud

alert, package delivery, and school closing information are

types of information calls that we do not want to unnecessarily

impede.” Id. at 1838,

, at * * 6 . Accordingly, FCC

“rules for these calls . . . continue to permit oral consent if

made to wireless consumers.” Id. at 1841,

, at

**8. In addition, “research or survey calls, . . . to the

6 extent that they do not contain telemarketing messages, . . .

[may be consented to orally] if made to wireless consumers.”

As BDF’s calls to the Lamonts consisted of informational

delivery calls, and the Lamonts do not allege that any survey

request they received constituted any form of telemarketing,

BDF’s calls did not require the Lamonts’ express written

consent.

The court’s ruling on Count I hinges on whether the act of

providing one’s cellular phone number to a business during a

business transaction constitutes express consent to receive

automated calls from that business. Most courts support the

proposition that it does. See, e.g., Pinkard v . Wal-Mart

Stores, Inc., N o . 3:12-cv-02902-CLS,

, at *4-*6

(N.D. Ala. Nov. 9, 2012); Roberts v . PayPal, Inc., N o . C 12-0622

PJH,

, at *4 (N.D. Cal. May 3 0 , 2013); Saunders

v . NCO Fin. Sys., Inc.,

6 4 , 467 (E.D.N.Y. Dec.

1 9 , 2012) (“authorities are almost unanimous that voluntarily

furnishing a cellphone number to a vendor or other contractual

counterparty constitutes express consent”); see also Emanuel v .

L.A. Lakers, Inc., N o . CV 12-9936-GW(SHx),

, at

*3 (C.D. Cal. Apr. 1 8 , 2013).

The reasoning in this line of cases is persuasive. By

giving her phone number to BDF when she bought merchandise, Mrs.

7 Lamont also gave BDF express consent to use an autodialer to

contact her. Thus, BDF is entitled to dismissal of Mrs.

Lamont’s claim under the TCPA.

However, M r . Lamont’s claim stands on a different footing.

Whereas Mrs. Lamont gave BDF her number, the only allegation

regarding M r . Lamont’s number is that Mrs. Lamont gave that

number to BDF. BDF argues that case law indicates that when a

person gives out a spouse’s telephone number, that act

constitutes giving the spouse’s express permission to be called

by the entity to which the telephone number was given. BDF

cites Osorio v . State Farm Bank, F.S.B.,

(S.D. Fla. 2012), and Gutierrez v . Barclays Grp., N o .

10cv1012 DMS (BGS),

(S.D. Cal. Feb. 9, 2011), for

this proposition. However, Gutierrez is readily distinguishable

from the present case, and not only has Osorio recently been

reversed, see Osorio v . State Farm Bank, F.S.B., ___ F.3d ___,

(11th Cir. Mar. 2 8 , 2014), but, even prior to

its reversal, Osorio was of no assistance to BDF.

In Gutierrez, a husband listed his wife’s cellular

telephone number as his home number on a credit card

application. See

, at * 1 . The court noted that,

while being deposed, the husband admitted to asking his wife for

her permission to list her number on credit card applications,

8 and his wife admitted to giving him permission.

at * 3 . The

court therefore held that the husband had “common authority”

over his spouse’s cellular telephone that enabled him to give

the credit card company “prior express consent” to use her

number. Id. at *3 (internal quotation marks omitted). In

Osorio, one partner in an unmarried couple gave the other

partner’s phone number to a bank.

.

Noting that the couple lived together, raised their child

together, subscribed together to the same phone company, and

that the first partner had given out the second partner’s number

as her own three times, the court held that the first partner

had common authority over the second partner’s phone.

. The court therefore held that the first partner had given

the bank express consent to call the second partner’s number.

. On appeal, the Eleventh Circuit reversed and

held that, while in some instances a person may authorize

another adult to give their consent to call their cellular

telephone, “we cannot say that all coinhabitants possess such

authority as a matter of law.” Osorio, ___ F.3d at ___,

, at * 9 . Because there was a factual dispute whether the

first partner acted as the second partner’s agent when she gave

the bank his contact number, the court held that “[t]he issue

must instead be submitted to a factfinder.”

9 Gutierrez was decided at summary judgment and contained

much more information about the couple in the case than has been

revealed about the Lamonts. Before being reversed on appeal,

Osorio was also decided at summary judgment and similarly

contained much more information about the relationship of the

couple at issue than this court knows about the Lamonts. Thus,

even prior to reversal, Osorio did not support BDF’s case. On

appeal, any argument that Osorio supported BDF’s position eroded

completely when the Eleventh Circuit determined that, even with

the information available at summary judgment, the couple’s

relationship and living situation in the case did not

automatically allow one member of the couple to give the other’s

prior express consent to call the other’s cellular phone.

In the present case, the material facts alleged are as

follows: (1) M r . and Mrs. Lamont reside at the same address; (2)

Mrs. Lamont gave M r . Lamont’s cellular phone number to BDF; (3)

BDF autodialed M r . Lamont’s number. At this stage, there is not

enough information for the court to hold that M r . Lamont

consented to the calls.

With regard to M r . Lamont’s cellular phone, the Lamonts

have stated a viable claim under the TCPA. The portion of the

TCPA claim dealing with Mrs. Lamont’s cellular phone, however,

is dismissed.

10 B . Count I I : New Hampshire Consumer Protection Act

The court now turns to Count I I . In this count, the

Lamonts allege that BDF violated the CPA as follows:

A). Misrepresenting to the Plaintiffs that the merchandise would be delivered and assembled within a 3 hour delivery window.

B). Misrepresenting to the Plaintiffs that an end table, bookcase and bunk bed would be delivered and fully assembled on December 1 2 , 2013.

C). Misrepresenting to the Plaintiffs that a bookcase would be delivered and fully assembled on December 1 2 , 2013.

D). Misrepresenting to the Plaintiffs that there would be a delivery on January 2 , 2014.

E). Misrepresenting to the Plaintiffs that a complete bunk bed would be delivered and fully assembled on January 9, 2014.

F). Selling plaintiffs a trundle section to a bunk bed but not delivering i t .

Compl. (doc. n o . 1 ) ¶ 1 9 .

Under the CPA, “[i]t . . . [is] unlawful for any person to

use any unfair method of competition or any unfair or deceptive

act or practice in the conduct of any trade or commerce within

this state.” RSA 358-A:2. BDF’s alleged conduct does not fall

squarely within any of the enumerated categories of conduct

prohibited by the CPA. “[I]n order for conduct not

particularized by the enumerated categories in the CPA to

qualify as an unfair or deceptive trade practice, that conduct

11 must be of the same type as proscribed by the enumerated

categories.” State v . Moran,

5 0 , 452 (2004) (emphasis

removed). To determine if a claim under the CPA outside of its

enumerated categories is actionable, the court applies the

“rascality test,” which holds that the “objectionable conduct

must attain a level of rascality that would raise an eyebrow of

someone inured to the rough and tumble of the world of

commerce.”

(internal quotation marks removed). Additional

guidance for determining whether a non-enumerated claim is

actionable is found in the federal courts’ review of the Federal

Trade Commission Act.

at 452-453 (citing RSA 358-A:13).

The Federal Trade Commission considers an act unfair or

deceptive if it “is within at least the penumbra of some . . .

established concept of unfairness[,]” is “immoral, unethical,

oppressive, or unscrupulous[,]” or causes “substantial injury to

consumers.” Id. at 453 (internal quotation marks omitted).

Assuming all the Lamonts’ allegations against BDF are true,

the conduct alleged does not rise to the level of a CPA

violation. BDF made four furniture deliveries, when, ideally,

it should only have needed to make just one. Again, assuming

the allegations are true, BDF, at a minimum, inconvenienced the

Lamonts by requiring multiple deliveries, by failing to assemble

their furniture as promised, and by failing to provide a

12 component of one piece of their furniture. However, such poor

customer service does not rise to the level of a CPA violation.

BDF’s alleged conduct would not raise an eyebrow of someone

inured to the world of commerce, and it does not fall within

established concepts of unfairness or their penumbras. Nor is

it immoral, unethical, oppressive, or unscrupulous.

Furthermore, none of BDF’s alleged conduct amounts to

“substantial injury” to consumers.

In sum, BDF did not misrepresent what it intended to d o ;

rather, the allegations are that BDF failed at doing what it had

promised. While BDF’s actions might constitute a breach of

contract, the New Hampshire Supreme Court is clear “that an

ordinary breach of contract claim does not violate the CPA.”

Moran,

(citing Barrows v . Boles,

8 2 ,

390 (1996)). Accordingly, the Lamonts have failed to state a

claim for which relief can be granted under the CPA. Count II

is therefore dismissed.

Conclusion

For the reasons detailed above, BDF’s motion to dismiss

(doc. n o . 6 ) is granted in part and denied in part. Count I is

dismissed with respect to Mrs. Lamont’s claim under the TCPA;

13 Count II is dismissed in its entirety. Thus, all that remains

in this case is M r . Lamont’s claim under the TCPA.

SO ORDERED.

if// / Landya McQatZerty United S t a ^ s District Judge

April 1 5 , 2014

cc: Joseph L . Lamont, Esq. Brian G. Leary, Esq. Robert M . Shaw, Esq. Timothy John McLaughlin, Esq.

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