Case 3:18-cv-00173-GMG Document 1 Filed 10/19/18 Page 1 of 9 PagelD #: 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST
VIRGINIA
MARTINSBURG DIVISION ELECTRONICALLY
FILED
Oct 19 2018
U.S. DISTRICT COURT
MARIAH NORTON ) Northern District of WV

Plaintiff,

v. ) Case No.: 3:18-CV-173 (Groh)

1863 PAC, LTD.,

JOHN DOE1,
JOHN DOE 2, and
ABC COMPANY

Defendant.

COMPLAINT --
CLASS ACTION

INTRODUCTION

1. Plaintiff Mariah Norton ("Norton") brings this action to secure redress for the

actions of defendant 1863 PAC, LTD. in sending out unsolicited texts to cell phones in

violation of the Telephone Consumer Protection Act, 47 U.S.C. §227 (TCPA").

PARTIES

2. Plaintiff Norton is a natural person who resides in Jefferson County, West

Virginia.

3. Defendant 1863 PAC, Ltd. is a domestic corporation. It's principal office

address is 64 Cromwell Court, Martinsburg, WV 25403. Its registered agent is CT

Comoration System, 1627 Quarrier St., Charleston, WV 25311-2124i

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4. John Doe 1 is an agent or employee of Defendant 1863 PAC, Ltd.

5. John Doe 2 is an agent or employee of Defendant 1863 PAC, Ltd.

6. ABC Company is a vendor of Defendant 1863 PAC, Ltd.

JURISDICTION AND VENUE

7. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (general

federal question) and 47 U.S.C. §227(a) (TCPA). Defendant transacts business in the state

and has an office in this State.

FACTS RELATING TO DEFENDANT 1863 PAC, LTD.

8. In 2018, upon information and belief, Defendant 1863 PAC, LTD., a self-

described "SuperPAC" began preparing to influence the November 2018 state legislative

elections through the use of advertising.

9. Upon information and belief, John Doe 1 and John Doe2 manage the affairs

of 1863 PAC, LTD.

10. Upon information and belief, John Doe 1 and John Doe 2 contracted with

ABC Company to spam the cellular telephones of potential voters and promote Riley

Moore, a candidate with whom they are closely associated.

11. On or about October 18, 2018, Defendant ABC Company at the direction and

with the authorization of John Doe 1, John Doe 1 and the 1863 PAC, LTD., caused an

unsolicited text message and graphic advertisement to be transmitted to plaintiff s

cellular phone and other potential voterscellular phones. This advertisement promoted

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Riley Moore, a state legislative candidate for office, and was sent without plaintiff s

knowledge, approval or authorization.

12. Plaintiff has never given any Defendant permission to send texts to her.

13. Plaintiff did not have a prior business relationship with Defendant 1863

PAC, LTD. and had not authorized the sending of texts to her.

14. Upon information and belief, most, if not all of the individuals and entities

who received texts promoting candidates from Defendants did not give prior express

invitation or permission.

15. On information and belief, defendant disseminated substantially the same

text and advertisements not only to Plaintiff but also to many other individuals and

entities who did not solicit the text or have a prior relationship with Defendants.

COUNT I --
VIOLATION OF THE TCPA

16. Plaintiff incorporates 11 -15.

17. In order to stop the unending harassment by telemarketers, Congress

enacted the TCPA. Section 227(b)(1)(C) of the TCPA makes it unlawful to send an

unsolicited texts and advertisements to cellular phones.

18. The TCPA provides a private right of action for a violation of §227(b),

pursuant to which a person or entity may recover $500 for each violation, and treble that

amount if defendant willfully or knowingly violated the provision.

19. The TCPA provides in part:

(3) Private right of action

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A person entity may, if otherwise permitted by the laws or rules

or of
court of a State, bring in an appropriate court of that State—

(A) an action based on a violation of this subsection or the

regulations prescribed under this subsection to enjoin such
violation,

(B) an action to recover for actual monetary loss from such a

violation, or to receive $500 in damages for each such
violation, whichever is greater, or

(C) both such actions.

If the court finds that the defendant willfully or knowingly

violated this subsection or the regulations prescribed under this
subsection, the court may, in its discretion, increase the amount
of the award to an amount equal to not more than 3 times the
amount available under subparagraph (B) of this paragraph.

20. Defendants violated the TCPA 47 U.S.C. §227(b)(1)(C) by sending

unsolicited texts and advertisements to cellular telephones of plaintiff and the putative

class members.

21. Plaintiff and the class members were damaged as a result. Each member of

the class suffered concrete harm as a result of receipt of the unsolicited texts in the form

of data and minutes used from their telephone plans.

22. Upon information and belief, Defendants willfully and knowingly violated

the TCPA as demonstrated by defendant texting an advertisement to plaintiff.

23. Unless enjoined from doing so, Defendants are likely to commit similar

violations in the future as evidenced by the indiscriminate nature of the texts.

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TCPA CLASS ALLEGATIONS

24. Plaintiff brings this claim on behalf of a class, consisting of (a)

(a) all persons (b) who, on or after a date four years prior to the filing of this action (28

U.S.C.1658), and on or before a date 20 days following the filing of this action, (c) were

sent texts or advertisements.

25. The class is so numerous that joinder of all members is impractical.

Plaintiff alleges on information and belief that there are more than 50 members of the class.

26. There are questions of law and fact common to the class, which

common issues predominate over any issues involving only individual class members. The

principal issues are whether the practice described above violates the TCPA.

27. There are questions of law and fact common to the class that predominate over

any questions affecting only individual class members. The predominant common

questions include:

a Whether defendants engaged in a pattern of sending unsolicited text

messages advertisements;

b. Whether defendants thereby violated the TCPA;

28. Class action treatment is superior to the alternatives for the fair and efficient

adjudication of the controversy alleged herein. Such treatment will permit a large number

of similarly situated persons to prosecute their common claims in a single forum

simultaneously, efficiently, and without the duplication of effort and expense that

numerous individual actions would entail.

29. No difficulties are likely to be encountered in the management of this class

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action that would preclude its maintenance as a class action, and no superior alternative

exists for the fair and efficient adjudication of this controversy.

30. Defendants have acted on grounds generally applicable to the class, thereby

making relief appropriate with respect to the class as a whole. Prosecution of separate

actions by individual members of the class, should they realize their rights have been

violated, would likely create the risk of inconsistent or varying adjudications with

respect to individual members of the class that would establish incompatible standards of

conduct.

31. A class action is superior to other available methods for the fair and efficient

adjudication of this controversy since joinder of all members is impracticable.

32. Plaintiff will fairly and adequately protect the interests of the class.

33. Plaintiff has retained counsel experienced in handling class actions and

actions involving unlawful business practices. Neither plaintiff nor plaintiff s counsel

have any interests which might cause them not to vigorously pursue this action.

34. Numerous courts have certified class actions under the TCPA. Overlord v.

Wheaton-Winfield dental Association Ltd., 04 CH 01613, (Ill. Cir. Cook County); Whiting

v SunGard, 03 CH 21135, (Ill. Cir. Cook County); Whiting v. Golndustry,03 CH 21136 (Ill.

Cir. Cook County); Nicholson v. Hooters ofAugusta, Inc., 245 Ga.App. 363, 537 S.E.2d

468 (2000) (private class action); ESI Ergonomic Solutions, LLC v. United Artists Th-eatre

Circuit, Inc., 203 Ariz. (App.) 94, 50 P.3d 844 (2002) (same); Core Funding Group,

LLC v. Young, 792 N.E.2d 547 (Ind.App. 2003) (same); Dubsky v. Advanced Cellular

Communications, Inc., 2003 CV 652, 2004 WL 503757 (Ohio C.P. Feb. 24, 2004);

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Biggerstaff v. Ramada Inn and Coliseum, 98-CP-10-004722, (S.C. C.P., Feb. 3, 2000)

(same); Biggerstaff v. Marriott International, Inc., 99-CP-10-001366 (S.C. C.P., Feb 20,

2000) (same); Chaudhry v. Bonneville International Corp., d/b/a KDGE/KZPS (Dist. Ct.

Tex., March 10, 1997)(same); Coontz v. Nextel Communications, No. C- 200100349 (Dist.

Ct. Tex.)(same); Gold Seal v. PrimeTV, No. 49C01-0112-CP-3010 (Marion County,

Indiana, August 29, 2002)(same); Jemiola v. XYZ Corp., No. 411237 (C.P. Ohio, Dec. 21,

2001)(same); Salpietro v. Resort Exchange International, No. GD00-9071 (Allegheny Co.

C.P.)(same); WPS, Inc. v. Lobel Financial, Inc., No 01CP402029 (C.P. S.C., Oct. 15, 2001)

(same); see State of Texas v. American Blast Fax, Inc., 164 F. Supp. 2d 892 (W.D. Tex.

2001) (state enforcement action) Gans v. Seventeen Motors, Inc., No. 01-L-478 (Ill. Cir.,

St. Clair County, Sept. 19, 2002).

35. A class action is an appropriate means of adjudicating this dispute, in

that:

a. Most consumers or entities are probably unaware of the

violation.

b. Individual actions are not economically feasible.

c. Judicial economy is best served by a class action.

WHEREFORE, plaintiff requests the following relief in favor of plaintiff and the

class:

a. Actual damages;

b. Statutory damages;

c. An injunction against the further transmission of unsolicited texts and

advertising;
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d. Such other or further relief as the Court deems just and proper.

e. Costs of suit;

Respectfully Submitted
Mariah Norton, Plaintiff
By Counsel

/s/Stephen G. Skinner
Stephen G. Skinner (WV Bar No. 6725)
SKINNER LAW FIRM
P.O. Box 487
Charles Town, WV 25414
304-725-7029/Fax: 304-725-4082
sskinner@skinnerfirm.com
 Case 3:18-cv-00173-GMG Document 1 Filed 10/19/18 Page 9 of 9 PagelD #: 9

DOCUMENT PRESERVATION DEMAND

Plaintiff hereby demands that the defendant take affirmative steps to preserve all recordings,
data, emails, documents and all other tangible things that relate to plaintiff or the putative
class members, or the sending of faxes, the events described herein, any third party
associated with any telephone call, campaign, account, sale or file associated with plaintiff
or the putative class members, and any account or number or symbol relating to any of them.

These materials are very likely relevant to the litigation of this claim.

If defendants are is aware of any third party such as that has possession, custody or control

of any such materials, plaintiff demands that defendant request that such third party also take
steps to preserve the materials. This demand shall not narrow the scope of any independent
document preservation duties of the defendant.

Mariah Norton,
By her attorney

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 Case 3:18-cv-00173-GMG
JS 44 (Rev. 08/16) eioweetch1Ekilgikalf/183:13g4-01 ROMA*: 319/19/2018
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of
pleadinp 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 ONNEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

Mariah Norton 1863 PAC, LTD., John Doe 1, John Doe 2, and ABC Company

(b) County of Residence of First Listed Plaintiff Jefferson

County of Residence ofFirst Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLV
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(C) Attomeys (Firm Name, Address, and Telephone Number) Attorneys (IfKnown)
Skinner Law Firm, Stephen G. Skinner
P.O. Box 487, Charles Town, WV 25414

II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "r in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
O 1 U.S. Government kf 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 0 1 0 1 Incorporated or Principal Place 0 4 0 4
of Business In This State

O 2 U.S. Government 0 4 Citizen of Another State 0 2 0

Diversity 2 Incorporated and Principal Place 0 5 0 5
Defendant (Indicate Citizenskp ofParties in Item III) ofBusiness In Another State

Citizen or Subject of a 0 3 0 3 Foreign Nation 0 6 0 6

IV. NATURE OF SIJIT (Place an "X" in One Rm. Only) Click here for: Nature of Suit Code Descrintions.
CONTRACT I '11= FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES I
O 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Act
O 120 Marine 0 310 Airplane 0 365 Personal Injury -
of Property 21 USC 881 0 423 Withdrawal 0 376 Qui Tam (31 USC
O 130 Miller Act 0 315 Airplane Product Product Liability 0 690 Other 28 USC 157 3729(a))
O 140 Negotiable Instrument Liability 0 367 Health Care/ 0 400 State Reapportionment
O 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS • 0 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 0 820 Copyrights 0 430 Banks and Banking
O 151 Medicare Act 0 330 Federal EmployersProduct Liability 0 830 Patent 0 450 Commerce
O 152 Recovery of Defaulted Liability 0 368 Asbestos Personal 0 840 Trademark 0 460 Deportation
Student Loans 0 340 Marine Injury Product 0 470 Racketeer Influenced and
(Excludes Veterans) 0 345 Marine Product Liability M
LABOlis. SOCIAL SECURITY Corrupt Organizations
O 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 861 HIA (1395ff) 0 480 Consumer Credit
of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) 0 490 Cable/Sat TV
1 160 Stockholders' Suits 0 355 Motor Vehicle 0 371 Tmth in Lending 0 720 Labor/Management 0 863 DIWC/DIWW (405(g)) 0 850 Securities/Commodities/
O 190 Other Contract Product Liability 0 380 Other Personal Relations 0 864 SSID Title XVI Exchange
O 195 Contract Product Liability 0 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) X 890 Other Statutory Actions
O 196 Franchise Injury 0 385 Property Damage 0 751 Family and Medical 0 891 Agricultural Acts
0 362 Personal Injury -
Product Liability Leave Act 0 893 Environmental Matters
Medical Malpractice 0 790 Other Labor Litigation 0 895 Freedom of Information
I REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 0 791 Employee Retirement FEDERAL TAX SUITS • Act
0 210 Land Condemnation 0 440 Other Civil Rights Habeas Corpus: IncomeSecurity Act 0 870 Taxes (U.S. Plaintiff 0 896 Arbitration
0 220 Foreclosure 0 441 Voting 0 463 Alien Detainee or Defendant) 0 899 Administrative Procedure
0 230 Rent Lease & Ejectment 0 442 Employment 0 510 Motions to Vacate 0 8711RS—Third Party Act/Review or Appeal of
0 240 Torts to Land 0 443 Housing/ Sentence 26 USC 7609 Agency Decision
0 245 Tort Product Liability Accommodations 0 530 General 0 950 Constitutionality of
0 290 All Other Real Property 0 445 Amer. w/Disabilities -
0 535 Death Penalty
= IMMIGRATION • State Statutes
Employment Other: 0 462 Naturalization Application
0 446 Amer. w/Disabilities -
0 540 Mandamus & Other 0 465 Other Immigration
Other 0 550 Civil Rights Actions
0 448 Education 0 555 Prison Condition
0 560 Civil Detainee -

Conditions of
Confinement

V. ORIGIN (Place an "X— in One Box Only)

X1 Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from n 6 Multidistrict 0 8 Multidistrict
Proceeding State Court Court
Appellate Reopened Another District Litigation -

Litigation -

(speciM Transfer Direct File

Statute under which you are filing (Do not cite jurisdictional statutes unless divers4):
VI. CAUSE OF ACTION
Bitt5lixsaidigirafscause:
VII. REQUESTED IN 0 CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UbIDER RULE 23, F.R.Cv.P. 500,000.00 JURY DEMAND: X Yes 0 No

VIII. RELATED CASE(S)

IF ANY (See instructions):
JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
10/19/18 /s/ Stephen G. Skinner
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE