iUD tRANK MONTALVC 

UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF TEXAS 2L2i 7i 20 P; 2: 

BRANDON CALLIER, § 

Plaintiff, § 

§ 

v. § 

SunPath LTD, Northcoast Warranty Services, 

§ 

§ 

L'fl 

r 

cOI1(1 J V '-F 10 

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

JURISDICTION AND VENUE 

5. 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 

Case 3:20-cv-00105-FM Document 1 Filed 04/20/20 Page 1 of 14
statute. Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012). This Court has 

supplemental subject matter jurisdiction over Plaintiff's 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. 

6. 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. 

7. 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. 

8. 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. 

THE TELEPHONE CONSUMER PROTECTION ACT OF 1991, 47 U.S.C. § 

227 

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

complaints regarding telemarketing. 

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

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

automatic telephone dialing system (ATDS) or an artificial or prerecorded voice ... to 

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

227(b)( 1 )(A)(iii). 

11. 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). 

12. 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). 

13. 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).' 

14. 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). 

15. 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. 

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

'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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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 Rcd. 14014, 

14115 ¶ 165 (2003). 

17. 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. 

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

1991, 27 FCC Rcd. 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 of 1991, 10 FCC 

Rcd. 12391, 12397J 13(1995). 

19. 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 

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FCC Red. 6574, 6574 ¶ 1 (2013). 

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

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

21. 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 omitted)); 

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 

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

the TCPA and was violated in this case. 

23. 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. 

FACTUAL ALLEGATIONS 

24. The Plaintiff has received at least eleven 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 VAD for a car warranty through broker 

Northcoast Warranty Services, Inc. 

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25. 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. 

26. Mr. Callier believes VAD is a subsidiary of SunPath LTD., but has been unable to 

locate registered agent information to include them in filing. 

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, VAD, 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 

whose phone numbers were wrongfully appropriated by the defendants. 

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

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CALLNUMBER DATE TIME 

203-303-9394 3-Feb-20 12:47 

203-303-9394 6-Feb-20 14:17 

203-303-9394 7-Feb-20 9:13 

203-303-9394 7-Feb-20 10:05 

203-303-9394 7-Feb-20 12:22 

203-303-9394 11-Feb-20 9:54 

203-303-9394 12-Feb-20 12:41 

203-303-9394 12-Feb-20 13:27 

203-303-9394 13-Feb-20 9:34 

203-303-9394 13-Feb-20 11:31 

203-303-9354 13-Feb-20 13:11 

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 purchased a car warranty policy from the Defendants on February 20, 

2020. 

33. Mr. Callier received four additional calls from the Defendant after purchasing the car 

warranty because the calls were automated and initiated by the ATDS. 

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

allotment. 

35. Mr. Callier has limited data storage capacity on his cellular telephone. Incoming 7 

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telemarketing calls consumed part of this capacity. 

36. No emergency necessitated the calls 

37. Each call was sent by an ATDS. 

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

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

while it was sending Mr. Callier the unsolicited calls 

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

telemarketing on the existence and use of any do-not-call list. 

Vicarious Liability of the Sellers 

41. 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. 

42. SunPath Ltd., VAD 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. 

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

SunPath Ltd., VAD, and Northcoast Warranty Services, Inc. 

THE SELLERS SHOULD BE HELD LIABLE TO UPHOLD THE DETERRENT 

EFFECT AND PURPOSE OF THE TCPA 

44. 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 

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

liability would undermine the purpose of the TCPA. 

45. 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 

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 

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

to preventa "nuisance and invasion of privacy." 

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

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

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

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

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

50. 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 

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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 

Frustration 

Anger 

The Plaintiff's cell phone is a residential number 

51. The calls were to the Plaintiff's cellular phone 915-383-4604, which is the Plaintiff'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 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 

52. 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 

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

53. 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. 

I. FIRST CLAIM FOR RELIEF 

(Non-Emergency Robocalls to Cellular Telephones, 47 U.S.C. § 227(b)(1)(A)) 

(Against All Defendants) 

1. 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.5.C. § 227(b)(1)(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.5.E. § 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. 

Case 3:20-cv-00105-FM Document 1 Filed 04/20/20 Page 11 of 14
II. 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. 

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. § 64.1 200(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. 1200(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 2 See Id. at 425 (codifying a June 26, 2003 FCC order). 

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

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(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. 

III. 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). 

IV. 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 DOE5s as they are 

identified and to conform to the evidence presented at trial; 13 

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

TCPA and Texas state law; 

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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