JUDGE FRANK MONTALVC 

UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF TEXAS 

20 P 3: 53 

BRANDON CALLIER, 

Plaintiff, 

§ 

§ 

SunPath LTD, National Car Cure LLC, § EP 20 CV 0 1 

Northcoast Warranty Services, Inc., and John § 

Does 1-4 § 

Defendants § 

Plaintiff's Original Complaint 

Parties 

1. The Plaintiff is Brandon Callier, a natural person, and was present in Texas for all 

calls, in this case in El Paso County. 

2. SunPath Ltd. is a Delaware corporation and can be served via registered agent 

Registered Agent Solutions, Inc., 155 Office Plaza Drive, Suite A, Tallahassee, 

Florida 32301. 

3. Northcoast Warranty Services, Inc. is a Delaware corporation and can be served via 

registered agent Corporation Service Company, 1201 Hays Street, Tallahassee, 

Florida 32301. 

4. National Care Cure, LLC is a Florida corporation and can be served via registered 

agent Zander Collins & Smith, at 1665 Palm Beach Lakes BLVD STE 215, West 

Palm Beach, FL 33401. 

5. JohnlJane Does 1-4 are other liable parties currently unknown to the Plaintiff. 

ff 

Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 1 of 14
JURISDICTION AND VENUE 

6. Jurisdiction. This Court has federal-question subject matter jurisdiction over 

Plaintiff's TCPA claims pursuant to 28 U.S.C. § 1331 because the TCPA is a federal 

statute. Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012). This Court has 

supplemental subject matter jurisdiction over Plaintiffs claim arising under Texas 

Business and Commerce Code 305.053 because that claim arises from the same 

nucleus of operative fact, i.e., Defendants' telemarketing robocalls to Plaintiff; adds 

little complexity to the case; and doesn't seek money damages, so it is unlikely to 

predominate over the TCPA claims. 

7. Personal Jurisdiction. This Court has general personal jurisdiction over the 

defendant because they have repeatedly placed calls to Texas residents, and derive 

revenue from Texas residents, and they sell goods and services to Texas residents, 

including the Plaintiff. 

8. 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 claimsthe calls and sale of 

goods and services directed at Texas residents, including the Plaintiffoccurred in 

this District and because the Plaintiff resides in this District. Residing in the Western 

District of Texas when he received a substantial if not every single call from the 

Defendants that are the subject matter of this lawsuit. 

9. This Court has venue over the defendants because the calls at issue were sent by or on 

behalf of the above named defendants to the Plaintiff, a Texas resident. 

Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 2 of 14
THE TELEPHONE CONSUMER PROTECTION ACT OF 1991, 47 U.S.C. § 

227 

10. In 1991, Congress enacted the TCPA in response to a growing number of consumer 

complaints regarding telemarketing. 

11. The TCPA makes it unlawful "to make any call (other than a call made for emergency 

purposes or made with the prior express consent of the called party) using an 

automatic telephone dialing system or an artificial or prerecorded voice ... to any 

telephone number assigned to a ... cellular telephone service." 47 U.S.C. § 

227(b)( I )(A)(iii). 

12. The TCPA makes it unlawful "to initiate any telephone call to any residential 

telephone line using an artificial or prerecorded voice to deliver a message without 

the prior express consent of the called party, unless the call is initiated for emergency 

purposes, is made solely pursuant to the collection of a debt owed to or guaranteed by 

the United States, or is exempted by rule or order" of the Federal Communication 

Commission ("FCC"). 47 U.S.C. § 227(b)(1)(B). 

13. The TCPA provides a private cause of action to persons who receive calls in violation 

of § 227(b). 47 U.S.C. § 227(b)(3). 

14. Separately, the TCPA bans making telemarketing calls without a do-not-call policy 

available upon demand. 47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(d)(1).' 

15. The TCPA provides a private cause of action to persons who receive calls in 

violation of § 227(c) or a regulation promulgated thereunder. 47 U.S.C. § 227(c)(5). 

'See Code of Federal Regulations, Title 47, Parts 40 to 60, at 425 (2017) 

(codifying a June 26, 2003 FCC order). 

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Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 3 of 14
16. According to findings of the FCC, the agency vested by Congress with authority to 

issue regulations implementing the TCPA, automated or prerecorded telephone calls 

are a greater nuisance and invasion of privacy than live solicitation calls and can be 

costly and inconvenient. 

17. The FCC also recognizes that "wireless customers are charged for incoming calls 

whether they pay in advance or after the minutes are used." In re Rules and 

Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Red. 14014, 

14115 ¶ 165 (2003). 

18. The FCC requires "prior express written consent" for all autodialed or prerecorded 

telemarketing robocalls to wireless numbers and residential lines. In particular: [A] 

consumer's written consent to receive telemarketing robocalls must be signed and be 

sufficient to show that the consumer: (1) received clear and conspicuous disclosure 

of the consequences of providing the requested consent, i.e., that the consumer will 

receive future calls that deliver prerecorded messages by or on behalf of a specific 

seller; and (2) having received this information, agrees unambiguously to receive such 

calls at a telephone number the consumer designates. In addition, the written 

agreement must be obtained without requiring, directly or indirectly, that the 

agreement be executed as a condition of purchasing any good or service. 

19. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 

1991, 27 FCC Red. 1830, 1844 ¶ 33 (2012) (footnote and internal quotation marks 

omitted). FCC regulations "generally establish that the party on whose behalf a 

solicitation is made bears ultimate responsibility for any violations." In the Matter of 

Rules and Regulations Implementing the Tel. Consumer Prot. Act o[1991, 10 FCC 

Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 4 of 14
Rcd. 12391, 12397 ¶ 13 (1995). 

20. The FCC confirmed this principle in 2013, when it explained that "a seller ... may be 

held vicariously liable under federal common law principles of agency for violations 

of either section 227(b) or section 227(c) that are committed by third-party 

telemarketers." In the Matter of the Joint Petition Filed by Dish Network, LLC, 28 

FCC Rcd. 6574, 6574 ¶ 1(2013). 

21. Under the TCPA, a text message is a call. Satterfield v. Simon & Schuster, Inc., 569 

F.3d 946, 951 52 (9th Cir. 2009). 

22. A corporate officer involved in the telemarketing at issue may be personally liable 

under the TCPA. E.g., Jackson Five Star Catering, Inc. v. Beason, Case No. 10- 

10010, 2013 U.S. Dist. LEXIS 159985, at *10 (E.D. Mich. Nov. 8,2013) ("[M]any 

courts have held that corporate actors can be individually liable for violating the 

TCPA where they had direct, personal participation in or personally authorized the 

conduct found to have violated the statute." (internal quotation marks omifted)); 

Maryland v. Universal Elections, 787 F. Supp. 2d 408, 415 16 (D. Md. 2011) ("If 

an individual acting on behalf of a corporation could avoid individual liability, the 

TCPA would lose much of its force."). 

The Texas Business and Commerce Code 305.053 

23. The Texas Business and Commerce code has an analogous portion that is related to 

the TCPA and was violated in this case. 

24. The Plaintiff may seek damages under this Texas law for violations of 47 USC 227 or 

subchapter A and seek $500 in statutory damages or $1500 for willful or knowing 

damages. 

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Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 5 of 14
FACTUAL ALLEGATIONS 

25. The Plaintiff has received at least ten calls over 60 days to his cell phone, 915-383- 

4604 without consent and not related to an emergency purpose, selling the products 

and services of SunPath Ltd. and National Car Cure, LLC for a car warranty through 

broker Northcoast Warranty Services, Inc. 

26. The Plaintiff purchased a car warranty from the defendants and was mailed a policy in 

the mail to his home address. The Defendants are listed on page Dl (Exhibit 1) and 

D2 (Exhibit 2) of the policy. 

27. Mr. Callier received multiple calls from a variety of spoofed caller ID's that contained 

a pre-recorded message and were initiated using an automated telephone dialing 

system. The calls were on behalf of SunPath LTD, National Car Cure, LLC, and 

Northcoast Warranty Services, Inc. The calls generally had a delay of 3-4 seconds of 

dead air before an audible tone connected the Plaintiff to a representative, indicating 

the calls were initiated using an ATDS. The Plaintiff received at least ten calls in 60 

days. 

28. Each and every call was initiated using a spoofed caller ID, and each and every 

telemarketer the Plaintiff spoke with failed to properly identify themselves and the 

parties they were calling on behalf of. 

29. "Neighborhood spoofing" designed to trick consumers into picking up the call as it 

appears to be a local call. This call contained a pre-recorded message after a 3-4 

second pause of dead air. Several of the calls used neighborhood spoofing tactics, 

others were real phone numbers from existing callers, innocent victims and businesses 

Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 6 of 14
whose phone numbers were wrongfully appropriated by the defendants. 

30. Plaintiff received the following calls from the Defendants (Table A). 

Date Time of Call Phone Number Name on Caller ID 

19-Nov-19 10:25 AM 915-383-5556 NA 

21-Nov-19 12:46 PM 915-383-1254 NA 

11-Dec-19 3:47 PM 915-383-2503 Romero Chavarri 

16-Dec-19 2:28 PM 915-383-4610 Man Villanueva 

18-Dec-19 11:14 AM 915-383-1861 Manuel Ochoa 

18-Dec-19 8:33 AM 915-383-4742 Maria Barraza 

19-Dec-19 1:11PM 915-383-5469 INIGUEZ 

21-Dec-19 3:50 PM 317-527-9965 Skylar Long 

6-Jan-20 10:52AM 407-272-8548 GValentin 

21-Jan-20 12:59 PM 915-383-5130 Vasquez Cordero 

31. Each and every call was placed without the maintenance of an internal do-not-call 

policy. Each and every call failed to identify the telemarketers and parties they were 

calling on behalf of. Each and every call was placed without training their 

agents/employees on the use of an internal do-not-call policy. 

32. Mr. Callier has a limited data plan. Incoming text messages chip away at his monthly 

allotment. 

33. Mr. Callier has limited data storage capacity on his cellular telephone. Incoming 

telemarketing calls consumed part of this capacity. 

34. No emergency necessitated the calls 

35. Each call was sent by an ATDS. 

36. None of the defendants ever sent Mr. Callier any do-not-call policy. 

37. On information and belief, none of the defendants had a written do-not-call policy 

while it was sending Mr. Callier the unsolicited calls 

38. On information and belief, none of the defendants trained its agents engaged in 

Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 7 of 14
telemarketing on the existence and use of any do-not-call list. 

Vicarious Liability of the Sellers 

39. These parties are vicariously liable under the theories of actual authority, apparent 

authority, and ratification, and as well as liable because any other result would impair 

the underlying purpose of the TCPA. 

40. SunPath Ltd., National Car Cure, LLC and Northcoast Warranty Services, Inc. are 

liable parties as the direct beneficiaries of the illegal telemarketing calls as they stood 

to gain the Plaintiff as a client and quoted the Plaintiff a contract offering their 

products and services. 

41. The contract shows that the beneficial parties who were gaining customers were 

National Car Cure, LLC, SunPath Ltd., Northcoast Warranty Services, Inc. 

THE SELLERS SHOULD BE HELD LIABLE TO UPHOLD THE DETERRENT 

EFFECT AND PURPOSE OF THE TCPA 

42. As the court ruled in Jackson v Caribbean Cruise Line, Inc., the defendant sellers 

should be held liable for their violations of the TCPA. Courts have looked at the 

purpose of the TCPA and found that not holding the sellers liable through vicarious 

liability would undermine the purpose of the TCPA. 

43. Every entity in the contract for car warranty services should be deemed a beneficiary 

of the calls and held liable for damages under the TCPA under vicarious liability. 

Sellers are in the best position to monitor and police third party telemarketer's 

Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 8 of 14
compliance with the TCPA and to hold otherwise would leave consumers without an 

effective remedy for telemarketing intrusions. 

INJURY, HARM, DAMAGES, and ACTUAL DAMAGES AS A RESULT OF THE 

CALLS 

44. Defendant's calls harmed the Plaintiff by causing the very harm that Congress sought 

to preventa "nuisance and invasion of privacy." 

45. Defendant's calls harmed the Plaintiff by trespassing upon and interfering with 

Plaintiff's rights and interests in Plaintiff's cellular telephone. 

46. Defendant's calls harmed the Plaintiff by trespassing upon and interfering with 

Plaintiff's rights and interests in Plaintiff's cellular telephone line. 

47. Defendant's calls harmed the Plaintiff by intruding upon Plaintiff's seclusion. 

48. The Plaintiff has been harmed, injured, and damages by the calls including, but not 

limited to: 

Reduced Device Storage space 

Reduced data plan usage 

Invasion of privacy 

Lost time tending to text messages 

Decreased cell phone battery life 

More frequent charging of my cell phone resulting in reduced enjoyment and usage of 

my cell phone 

Reduced battery usage 

Annoyance 9 

Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 9 of 14
Frustration 

Anger 

The Plaintiff's cell phone is a residential number 

49. The calls were to the Plaintiffs cellular phone 915-383-4604, which is the Plaintiffs 

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 at least 10 years 

and primarily relies on cellular phones to communicate with friends and family. The 

Plaintiff also uses his cell phone for navigation purposes, sending and receiving 

emails, timing food when cooking, and sending and receiving text messages. 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 used for any business 

purpose. 

Violations of the Texas Business and Commerce Code 305.053 

50. The actions of the defendants violated the Texas Business and Commerce Code 

305.053 by placing automated calls to a cell phone which violate 47 USC 227(b). The 

calls by the defendants violated Texas law by placing calls with a pre-recorded 

message to a cell phone which violate 47 USC 227(c)(5) and 47 USC 227(d) and 47 

USC 227(d)(3) and 47 USC 227(e). 

51. The calls by the defendants violated Texas law by spoofing the caller ID's per 47 

USC 227(e) which in turn violates the Texas statute. IRST CLAIM FOR RELIEF 

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Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 10 of 14
(Non-Emergency Robocalls to Cellular Telephones, 47 U.S.C. § 227(b)(1)(A)) 

(Against All Defendants) 

Mr. Callier realleges and incorporates by reference each and every 

allegation set forth in the preceding paragraphs. 

2. The foregoing acts and omissions of Defendants and/or their affiliates or 

agents constitute multiple violations of the TCPA, 47 U.S.C. § 227(b)(l)(A), by making 

non-emergency telemarketing robocalls to Mr. Callier' s cellular telephone number 

without his prior express written consent. 

3. Mr. Callier is entitled to an award of at least $500 in damages for each 

such violation. 47 u.s.c. § 227(b)(3)(B). 

4. Mr. Callier is entitled to an award of up to $1,500 in damages for each 

such knowing or willful violation. 47 U.S.C. § 227(b)(3). 

5. Mr. Callier also seeks a permanent injunction prohibiting Defendants and 

their affiliates and agents from making non-emergency telemarketing robocalls to cellular 

telephone numbers without the prior express written consent of the called party. 

I. SECOND CLAIM FOR RELIEF 

(Telemarketing Without Mandated Safeguards, 47 C.F.R. § 64.1200(d)) 

(Against All Defendants) 

6. Mr. Callier realleges and incorporates by reference each and every 

allegation set forth in the preceding paragraphs. 

Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 11 of 14
7. The foregoing acts and omissions of Defendants and/or their affiliates or 

agents constitute multiple violations of FCC regulations by making telemarketing 

solicitations despite lacking: 

a. a written policy, available upon demand, for maintaining a do-notcall list, in violation of 47 C.F.R. § 64.1200(d)(1);2 

b. training for the individuals involved in the telemarketing on the 

existence 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 name 

of the person or entity on whose behalf the call is being made, in violation of 47 C.F.R. § 

64.1 200(d)(4).4 

8. Mr. Callier is entitled to an award of at least $500 in damages for each 

such violation. 47 U.S.C. § 227(c)(5)(B). 

9. Mr. Callier is entitled to an award of up to $1,500 in damages for each 

such knowing or willful violation. 47 U.S.C. § 227(c)(5). 

10. Mr. Callier also seeks a permanent injunction prohibiting Defendants and 

their affiliates and agents from making telemarketing solicitations until and unless they 

(1) implement a do-not-call list and training thereon and (2) include the name of the 

individual caller and AFS's name in the solicitations. 

2 Id. at 425 (codifying a June 26, 2003 FCC order). 

See Id. at 425 (codifying a June 26, 2003 FCC order). 

See id. at 425 26 (codifying a June 26, 2003 FCC order). 12 

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II. THIRD CLAIM FOR RELIEF: Violations of The Texas Business and 

Commerce Code 305.053 

11. Mr. Callier realleges and incorporates by reference each and every 

allegation set forth in the preceding paragraphs. 

12. The foregoing acts and omissions of Defendants and/or their affiliates or 

agents constitute multiple violations of the Texas Business and Commerce Code 

305.053, by making non-emergency telemarketing robocalls to Mr. Callier's cellular 

telephone number without his prior express written consent in violation of 47 USC 227 et 

seq. The Defendants violated 47 Usc 227(d) and 47 USC 227(d)(3) and 47 usc 227(e) 

by using an ATDS that does not comply with the technical and procedural standards 

under this subsection. 

13. Mr. Callier is entitled to an award of at least $500 in damages for each 

such violation. Texas Business and Commerce Code 305.053(b) 

14. Mr. Callier is entitled to an award of up to $1,500 in damages for each 

such knowing or willful violation. Texas Business and Commerce Code 305.053(c). 

III. PRAYER FOR RELIEF 

WHEREFORE, Plaintiff Brandon Callier prays for judgment against the 

defendants jointly and severally as follows: 

A. Leave to amend this Complaint to name additional DOESs as they are 

identified and to conform to the evidence presented at trial; 

B. A declaration that actions complained of herein by Defendants violate the 

TCPA and Texas state law; 

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Case 3:20-cv-00106-FM Document 1 Filed 04/20/20 Page 13 of 14
C. An injunction enjoining Defendants and their affiliates and agents from 

engaging in the unlawful conduct set forth herein; 

D. An award of $3000 per call in statutory damages arising from the TCPA 

intentional violations jointly and severally against the corporation and individual for 

seven calls. 

E. An award of $1,500 in statutory damages arising from violations of the 

Texas Business and Commerce code 305.053 

F. An award to Mr. Callier of damages, as allowed by law under the TCPA; 

G. An award to Mr. Callier of interest, costs and attorneys' fees, as allowed 

by law and equity 

H. Such further relief as the Court deems necessary, just, and proper. 

April 20, 2020 

Brandon Callier 

Pro-se 

6336 Franklin Trail 

El Paso, TX 79912 

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