Free Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00830-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JOSEPH A. MULLANEY, II, individually, and as spouse to Ann B. Mullaney, DOCKET NO.: and ANN B. MULLANEY, individually, and as spouse to Joseph A. Mullaney, II, Plaintiffs, JURY TRIAL DEMANDED v. J.C. CHRISTENSEN & ASSOCIATES, INC., a Minnesota Corporation, and XYZ CORPORATIONS I ­ X, fictitious unknown entities, and JEAN MILLER a/k/a John Doe I, individually, and as agent of J.C. Christensen & Associates, Inc. and XYZ Corporations, and JOHN DOE I a/k/a Jean Miller, individually, and as agent of J.C. Christensen & Associates, Inc. and XYZ Corporations, and JOHN DOES II ­ X, individuals, and as agents of J.C. Christensen & Associates, Inc. and XYZ Corporations, Defendants. JURISDICTION AND VENUE 1. Subject matter jurisdiction is proper pursuant to 15 U.S.C. § 1692k(d), 28 U.S.C. § 1331, and 28 U.S.C. § 1337; in personam jurisdiction is proper pursuant to 10 Del. C. § 3104; supplemental jurisdiction for state law claims is proper pursuant to 28 U.S.C. § 1367; and venue is proper pursuant to 28 U.S.C. § 1391(b). CIVIL ACTION COMPLAINT (Fair Debt Collection Practices Act)

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PARTIES 2. Plaintiffs repeat the foregoing Paragraph as if it was reprinted herein below. 3. 4. 5. 6. Plaintiff JOSEPH A. MULLANEY, II is a citizen of the State of Delaware. Plaintiff ANN B. MULLANEY is a citizen of the State of Delaware. Plaintiffs are husband and wife. Defendant J.C. CHRISTENSEN & ASSOCIATES, INC. ("JCC") conducts business within the State of Delaware and is situated at 215 North Benton Drive, Sauk Rapids, MN 7. 56379.

Defendants XYZ CORPORATIONS I ­ X ("XYZ Corporations"), fictitious unknown entities, conduct business within the State of Delaware.

8.

Defendant JEAN MILLER a/k/a John Doe I, individually, and as agent of J.C. Christensen & Associates, Inc. and XYZ Corporations ("Miller"), conducts business within the State of Delaware and her place of business is at 215 North Benton Drive, Sauk Rapids, MN 56379.

9.

Defendant JOHN DOE I a/k/a Jean Miller, individually, and as agent of J.C. Christensen & Associates, Inc. and XYZ Corporations ("John Doe"), conducts business within the State of Delaware and her place of business is at 215 North Benton Drive, Sauk Rapids, MN 56379.

10.

Defendants JOHN DOES II ­ X, individuals, and as agents of J.C. Christensen & Associates, Inc. and XYZ Corporations ("John Does"), are unknown persons believed to be agents of Defendant JCC and XYZ Corporations. FACTUAL ALLEGATIONS

11.

Plaintiffs repeat the foregoing Paragraphs as if each was reprinted herein below.

12.

The Defendants telephoned Plaintiffs approximately sixty-seven (67) times from about December 2006 to the present using autodialer

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technology and leaving approximately sixty-seven (67) artificial and/or prerecorded voice messages. 13. Artificial and/or prerecorded voice messages that were retained by the Plaintiffs stated: "This is Jean Miller, and I really need to have a The number you can reach me is 1-800-858-

call back from you today. 9527.

And you can reach me in my office from noon to 9:00 [p.m.]

Monday and Tuesday and Wednesday through Friday from 8:00 a.m. to 5:00 p.m. 14. Thank you."

Some artificial and/or prerecorded voice messages that were left on the following dates were retained by the Plaintiffs and include:

Date 01/17/07 01/18/07 01/20/07 01/22/07 01/24/07 01/25/07 01/26/07 01/30/07 01/31/07 01/31/07 01/31/07 02/06/07 02/06/07 02/07/07 02/07/07 03/05/07 03/06/07 03/06/07
15.

Number (Caller ID) (800) 858-9527 (800) 858-9527 (800) 858-9527 (800) 858-9527 (800) 858-9527 (800) 858-9527 (800) 858-9527 (800) 858-9527 (866) 350-8346 (866) 350-8346 (800) 858-9527 (866) 350-8346 (866) 350-8346 (800) 858-9527 (866) 350-8346 (866) 350-8346 (800) 858-9527 (800) 858-9527

Company J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates J.C. Christensen & Associates

Caller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller Jean Miller

During the relevant time period, other artificial and prerecorded messages were played upon Plaintiffs answering the telephone.

16.

Numerous times Plaintiffs advised Defendants that they were seeking an unknown person who did not reside at their address.

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17.

The Defendants knew or should have known that the unknown person was never a resident of Plaintiffs' household.

18.

While Plaintiffs received the Defendants' numerous and harassing telephone calls containing artificial and prerecorded messages, Plaintiffs were enduring the severe illness of their daughter-in-law afflicted with brain cancer.

19.

The numerous and harassing telephone calls containing artificial and prerecorded messages intruded, disturbed, and destroyed their right to peace and tranquility within their home during the time of their daughter-in-law's illness and subsequent death in March 2007. COUNT ONE (U.S. Fair Debt Collection Practices Act)

20.

Plaintiff repeats the foregoing Paragraphs as if each was reprinted herein below.

21.

Plaintiffs are "any persons" as the term is used and defined by 15 U.S.C. § 1692, et seq.

22.

Defendants JCC, XYZ Corporations, Miller, and all the John Does are regularly engaged in the third-party collection of consumer debts, engaged in "communications" as defined by 15 U.S.C. § 1692a(2), and acted as "debt collectors" as defined by 15 U.S.C. § 1692a(6).

23.

The acts and omissions of the Defendants violated 15 U.S.C. § 1692, et seq., including, but not limited to: a. Contacting Plaintiffs more than once in violation of 15 U.S.C. § 1692b(3). b. Engaging in conduct whose natural consequence of which is to harass, oppress, or abuse Plaintiffs in connection with the collection of a debt in violation of 15 U.S.C. § 1692d.

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c.

Causing Plaintiffs' telephone to ring repeatedly and continuously with intent to annoy, abuse, or harass the Plaintiffs at the called number in violation of 15 U.S.C. § 1692d(5).

d.

Using false, deceptive, and misleading representations or means in connection with the collection of debt in violation of 15 U.S.C. § 1692e.

e.

Using false representations and deceptive means to collect or attempt to collect a debt or to obtain information concerning a consumer in violation of 15 U.S.C. § 1692e(10).

f.

Failing to identify the debt collection purposes of the numerous telephone calls in violation of 15 U.S.C. § 1692e(11).

g.

Using unfair and unconscionable means to collect or attempt to collect any debt in violation of 15 U.S.C. § 1692f.

24.

The Defendants caused the Plaintiffs to sustain damages. WHEREFORE, Plaintiffs demand that judgment be entered against the

Defendants for actual damages, statutory damages, costs, reasonable attorney's fees, and other relief as may be just and proper. COUNT TWO (U.S. Telephone Consumer Protection Act of 1991 and 47 C.F.R. 64.1200, et seq.) 25. Plaintiffs repeat and incorporate the preceding Paragraphs of this Civil Action Complaint as if each was reprinted herein below. 26. Plaintiffs controlled "customer premises equipment" as defined by 47 U.S.C. § 153(14), that originated, routed, and terminated telecommunications. 27. 28. Plaintiffs are "persons" as defined by 47 U.S.C. § 153(32). Defendants controlled "customer premises equipment" as defined by 47 U.S.C. § 153(14), that originated, routed, and terminated telecommunications.

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29.

Defendants engaged in "interstate communications" as defined by 47 U.S.C. § 153(22).

30.

Defendants engaged in "telecommunications" as defined by 47 U.S.C. § 153(43).

31.

Defendants controlled "wire communications" as defined by 47 U.S.C. § 153(52), that existed as instrumentalities of interstate and intrastate commerce.

32.

Defendants controlled "automatic telephone dialing systems" as defined by 47 U.S.C. § 227(a)(1) and 47 C.F.R. 64.1200(f)(1).

33.

The acts and omissions of the Defendants violated 47 U.S.C. § 227, et seq. and 47 C.F.R. 64.1200, et seq., including, but not limited to: a. The Defendants controlled automatic telephone dialing systems that had capacity to store or produce telephone numbers using random or sequential number generation and dialed the telephone number associated with the Plaintiffs. b. The Defendants initiated telephone calls to Plaintiff's residential telephone line using artificial and/or prerecord voices to deliver messages without the express consent of the Plaintiffs in violation of 47 U.S.C. § 227(b)(1)(B). c. The Defendants initiated communication to the Plaintiffs using an automatic telephone dialing system that was not in compliance with the technical and procedural standards prescribed by 47 U.S.C. § 227, and used an automatic telephone dialing system not in compliance with such standards in violation of 47 U.S.C. § 227(d)(1)(A). d. The Defendants initiated communication to the Plaintiffs that failed to automatically release the Plaintiff's line within five (5) seconds of the time notification is transmitted to the system that the Plaintiffs hung up to allow for the Plaintiff's line to

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be used to make and/or receive other telephone calls in violation of 47 U.S.C. § 227(d)(3)(B). e. The Defendants initiated artificial and/or prerecorded telephone communications to the Plaintiffs while failing at the beginning of the communications to state clearly their registered name in violation of 47 C.F.R. 64.1200(b)(1). 34. The Defendants caused the Plaintiffs to sustain damages. WHEREFORE, the Plaintiffs demand that judgment be entered against the Defendants, for actual damages, statutory damages in the amount of $500.00 for each artificial and/or prerecorded telephone call, trebled to $1500.00 for willfulness pursuant to 47 U.S.C. § 227(d)(3)(B), costs, reasonable attorney's fees, and other relief as may be just and proper. COUNT THREE (Invasion of Privacy ­ Unreasonable Intrusion upon Seclusion) 35. Plaintiffs repeat and incorporate the preceding Paragraphs of this Civil Action Complaint as if each of them was reprinted herein below. 36. The Defendants invaded the privacy of the Plaintiffs by unreasonably intruding upon their seclusion. 37. The Defendants intentionally intruded, physically or otherwise, upon the solitude and/or seclusion of the Plaintiffs or their private affairs or concerns in a manner which was highly offensive to the Plaintiffs and other reasonable persons if same should be in similar positions. 38. The Defendants' intentional intrusions, physical or otherwise, upon the solitude and/or seclusion of the Plaintiffs were substantial and highly offensive. 39. The Defendants caused the Plaintiffs to sustain damages.

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WHEREFORE, the Plaintiffs demand that judgment be entered against the Defendants, for actual damages, punitive damages, costs, reasonable attorney's fees, and other relief as may be just and proper. Plaintiffs demands a trial by jury.

BY:

/s/ Vivian A. Houghton Vivian A. Houghton, Esquire 800 West Street Wilmington, DE 19801 Tel 302-658-0518 Fax 302-658-5731

OJS 44 (Rev. 11/04)

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The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS JOSEPH A. MULLANEY, II and ANN B. MULLANEY (b) County of Residence of First Listed Plaintiff

Sussex, DE

DEFENDANTS J.C. CHRISTENSEN & ASSOCIATES, INC. and XYZ CORPORATIONS I ­ X and JEAN MILLER (cont. below) Benton, MN County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(EXCEPT IN U.S. PLAINTIFF CASES)

(c) Attorney's (Firm Name, Address, and Telephone Number) Vivian Houghton, Esq., 800 West Street, Wilmington, DE 19801; 302658-0518 II. BASIS OF JURISDICTION
'1
U.S. Government Plaintiff (Place an "X" in One Box Only)

Attorneys (If Known)

and JOHN DOE I and JOHN DOES II - X.

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff
(For Diversity Cases Only) PTF Citizen of This State ' 1 DEF ' 1 and One Box for Defendant) PTF DEF Incorporated or Principal Place ' 4 '4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation

' $

3 Federal Question (U.S. Government Not a Party)

'2

U.S. Government Defendant

' 4 Diversity
(Indicate Citizenship of Parties in Item III)

Citizen of Another State

' 2 ' 3

' 2 ' 3

' 5 ' 6

' 5 ' 6

Citizen or Subject of a Foreign Country

IV. NATURE OF SUIT
CONTRACT

(Place an "X" in One Box Only) TORTS

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' '

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

' ' ' ' ' ' ' ' ' ' ' ' ' ' ' '

PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights

PERSONAL INJURY ' 362 Personal Injury Med. Malpractice ' 365 Personal Injury Product Liability ' 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY ' 370 Other Fraud ' 371 Truth in Lending ' 380 Other Personal Property Damage ' 385 Property Damage Product Liability PRISONER PETITIONS

' 610 Agriculture ' 620 Other Food & Drug ' 625 Drug Related Seizure ' ' ' ' ' ' ' ' ' ' '
of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other LABOR 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt.Reporting & Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

' 422 Appeal 28 USC 158 ' 423 Withdrawal
28 USC 157 PROPERTY RIGHTS

' 820 Copyrights ' 830 Patent ' 840 Trademark
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS ' 870 Taxes (U.S. Plaintiff or Defendant) ' 871 IRS--Third Party 26 USC 7609

' ' ' ' ' '
$ ' ' ' '

' ' ' ' '

' ' ' ' ' ' ' ' '

' 510 Motions to Vacate ' ' ' ' '
Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes

V. ORIGIN
$ 1 '
Original Proceeding

' 2

(Place an "X" in One Box Only)

Transferred from ' 6 Multidistrict another district Removed from Remanded from Reinstated or (specify) State Court Appellate Court Reopened Litigation Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

' 3

'4

' 5

' 7

Appeal to District Judge from Magistrate Judgment

VI. CAUSE OF ACTION

15 U.S.C 1692, et seq.
Brief description of cause: DEMAND $ CHECK YES only if demanded in complaint: ' Yes ' No JURY DEMAND: DOCKET NUMBER
Digitally signed by Vivian A. Houghton DN: cn=Vivian A. Houghton, c=US, [email protected] Reason: I have reviewed this document Date: 2007.12.18 17:43:37 -05'00'

Unfair Debt Collection ' CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER F.R.C.P. 23 COMPLAINT: VIII. RELATED CASE(S) (See instructions): JUDGE IF ANY
DATE

SIGNATURE OF ATTORNEY OF RECORD

12/19/2007
FOR OFFICE USE ONLY RECEIPT # AMOUNT

Vivian A. Houghton
APPLYING IFP JUDGE

MAG. JUDGE

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Case 1:07-cv-00830-SLR

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Filed 12/19/2007

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