WILLIAMSPORT – Litigation between a McClure man and a Kansas insurance agent concerning a depleted cell phone battery and thousands of dollars in damages after the agent allegedly violated the Telephone Consumer Protection Act is over.
Plaintiff Robert D. Kline of McClure initially filed suit on April 6 in the Mifflin County Court of Common Pleas versus Ryan Michael Mullen of Olathe, Kan.
The case was then removed to the U.S. District Court for the Middle District of Pennsylvania on May 15, on grounds of diversity of citizenship between the parties.
Kline alleges that Mullen, an agent for Pinnacle Consulting Group, LLC (doing business as “Senior Plus Advisors”), was engaged in the business of illegal telemarketing of various insurance plans over the phone, through the use of live, automatically-dialed and pre-recorded robocalls.
An action, Kline said, that violates the TCPA, since he never gave his consent to receive the calls and was not provided the ability to opt out of receiving them.
The suit stated Kline received his call on his cell phone on the afternoon of March 31, when he was offered “Health Quotes” and the opportunity to answer insurance-related questions.
After speaking with a caller named Jamie, Kline said he answered further questions in an attempt to learn the identity of her employer and who was responsible for the illegal calls. Jamie then was said to have transferred Kline to the defendant Mullen, a licensed sales agent, who then began making insurance policy offers to him, the suit said.
Among other allegations, Kline made a unique claim in the instant case.
“Plaintiff has suffered concrete injury in fact, because the calls referenced herein deplete both the memory and battery capacity of the plaintiff’s cell, which diminishes the usefulness of said phone as well as causes general allowance,” Kline said.
On May 22, counsel for Mullen filed an answer to Kline’s complaint, which denied the entirety of his allegations and asserted five separate affirmative defenses against the suit.
“Plaintiff’s complaint should be dismissed, in whole or in part, for failure to state a claim upon which relief can be granted. At no time did defendant place a call to plaintiff that violated the Telephone Consumer Protection Act. At no time did any person or entity to place a call to plaintiff on defendant’s behalf that violated the Telephone Consumer Protection Act,” per the answer filed by Mullen’s counsel.
“Plaintiff provided prior written consent to any call he may have received relating to his investigation and/or prospective purchase of health insurance products. Plaintiff’s complaint should be dismissed, in whole or in part, pursuant to the doctrines of waiver and estoppel.”
UPDATE
Per a filing brought forward by defense counsel, the parties mutually agreed to end the litigation on Jan. 21.
“It is stipulated by the parties pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) that this action is hereby dismissed with prejudice,” according to the stipulation.
Prior to dismissal and for counts of violating the TCPA, failure to provide identity of business, general damages under the TCPA, trespass to chattels and invasion of privacy, the plaintiff had been seeking damages of exactly $6,001, plus the costs of this action.
The plaintiff represented himself in this matter.
The defendant was represented by Andrew C. Hanan of The Hanan Law Firm, in Cherry Hill, N.J.
U.S. District Court for the Middle District of Pennsylvania case 4:20-cv-00797
Mifflin County Court of Common Pleas case CV-2020-00403
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com