Price v. Dish Network L.L.C.
ORDER granting 36 Motion to Strike; granting in part and denying in part 27 Motion for Summary Judgment. Signed by Chief Judge William H. Steele on 7/13/2016. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
DISH NETWORK, LLC,
) CIVIL ACTION 15-0476-WS-M
This matter is before the Court on the defendant’s motion for partial
summary judgment. (Doc. 27). The parties have filed briefs and evidentiary
materials in support of their respective positions, (Docs. 27, 30, 35), and the
motion is ripe for resolution. After careful consideration, the Court concludes that
the motion is due to be granted in part and denied in part.
According to the complaint, the defendant made multiple unsolicited
telephone calls to the plaintiff’s cell number, apparently in an effort to reach one
of its customers. The defendant continued to do so even after the plaintiff
informed the caller they had the wrong number and asked them not to call her
again. At least some of the calls were made using an automated telephone dialing
system, and at least some of them employed an artificial and/or pre-recorded
voice. None of the calls was made for an emergency purpose or with the
plaintiff’s prior consent. Count One asserts violations of the Telephone Consumer
Protection Act (“the Act”), while Count Two asserts a state-law claim for invasion
of privacy. (Doc. 1-1 at 1-7).
The parties agree there is a universe of fourteen specific calls potentially
involved in this lawsuit. (Doc. 27 at 5-6; Doc. 30 at 1-2). The plaintiff agrees
with the defendant that summary judgment should be granted in favor of the
defendant on Count Two. (Id. at 8). The plaintiff also agrees with the defendant
that summary judgment should be granted in favor of the defendant on Count One
with respect to calls 1, 3 and 7 through 14. (Id. at 2, 8). Thus, only calls 2, 4, 5
and 6 remain. The defendant seeks summary judgment with respect to calls 2, 4
and 5, but not call 6. (Doc. 27 at 4).
Summary judgment should be granted only if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence
supporting a party’s position.1 Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[t]here is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), and the Court accordingly limits its review to those arguments the
parties have expressly advanced.
Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the
referenced portions of these [summary judgment] materials, but is not required to do
so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and
“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a
massive record ….” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d
1057, 1061 (11th Cir. 2011) (internal quotes omitted).
“It shall be unlawful for any person within the United States … to make
any call (other than a call made for emergency purposes or with the prior express
consent of the called party) using any 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)(1)(A)(iii). Count One is based
on alleged violations of this provision. (Doc. 1-1 at 5).
The defendant argues that calls 2, 4 and 5 were not made using an
automatic telephone dialing system (“ATDS”), an artificial voice, or a prerecorded
voice. The plaintiff counters that these calls were made using an ATDS.2
“The term ‘automatic telephone dialing system’ means equipment which
has the capacity – (A) to store or produce telephone numbers to be called, using a
random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C.
§ 227(a)(1). The defendant asserts that the equipment it uses does not have this
capacity. (Doc. 27 at 9, 15). Its evidence in support of this proposition is confined
to a single, conclusory sentence from the affidavit of its business operations
manager: “The Cisco Dialer does not have the capacity to store or produce
telephone numbers to be called, using a random or sequential number generator.”
(Doc. 27-2 at 3). As the defendant’s own authority states, such an ipse dixit is
inadequate as a matter of law. See Dominguez v. Yahoo, Inc., 629 Fed. Appx. 369,
373 (3rd Cir. 2015) (expert’s affidavit testimony that the equipment “did not have
the capacity to store or produce numbers to be called, using a random or sequential
number generator, and to call those numbers,” was only a “restating of the
It appears to be uncontroverted that the system employed by the defendant does
not use an artificial voice. (Doc. 27 at 9). It also appears to be uncontroverted that the
system would or could use a prerecorded voice but that this feature was activated only
when a call was answered by a human voice. (Id. at 9-10, 15). As to calls 2, 4 and 5,
there was no answer and thus no use of a prerecorded voice. (Id. at 7, 10, 15). The Court
assumes this is why the plaintiff relies solely on the ATDS angle in opposing summary
judgment as to these calls.
statutory definition amount[ing] to nothing more than a legal conclusion couched
as a factual assertion”). Because the defendant has not carried its initial burden, its
motion must be denied, and the plaintiff’s showing need not be considered.
Mullins, 228 F.3d at 1313; Fitzpatrick, 2 F.3d at 1116; Clark, 929 F.2d at 608.
The defendant acknowledges that, in addition to the strict language of
Section 227(a)(1), “the FCC has expanded the definition of an ATDS to include
calling equipment having as its basic function the capacity to dial numbers without
human intervention.” (Doc. 27 at 15).3 The defendant seeks to negate this means
of showing an ATDS with its affiant’s statement that “[h]uman intervention was
involved in all aspects of making Call Nos. 2, 4, and 5.” (Doc. 27-2 at 3; Doc. 27
at 9, 15). The statement fails to carry the defendant’s initial burden for several
First, the affiant’s statement is as conclusory a parroting of a legal standard
as is his denial that the equipment satisfies the specific language of Section
227(a)(1). Second, the defendant acknowledges that the standard is whether the
equipment has the capacity to dial numbers without human intervention, yet the
affiant does not address capacity but only the actual events surrounding three
particular telephone calls.
Even had the defendant carried its initial burden with respect to the FCC
gloss, in its reply brief the defendant injects excerpts from the affiant’s deposition
that contradict his affidavit. According to the witness’s deposition, the equipment
(not any human) “select[s] the phone number and press[es] the keyboard.” (Doc.
35-1 at 3). Since selecting the phone number and pressing the keyboard are
presumably “aspects of making” calls, the defendant has controverted its own
The defendant notes that the FCC’s order is on appeal but does not ask the
Court, on that or any other basis, to ignore the order as a potential basis of liability. The
time to make such a request has now passed for all purposes in this litigation.
II. Treble Damages.
Section 227(b)(3) extends discretion to the Court to award treble damages
“[i]f the court finds that the defendant willfully or knowingly violated this
subsection ….” The defendant argues that, even if it is subject to liability under
the Act, it is not subject to treble damages. (Doc. 27 at 16).
The defendant asserts that treble damages may be awarded only as to calls
“made after the caller was put on explicit notice that the caller was calling the
wrong number.” (Doc. 27 at 16). The defendant relies on what its affiant calls
“DISH’s internal Account Memos for DISH’s customer account” (“Memos”) for a
particular period. (Doc. 27-2 at 4). The defendant points to an entry from August
18, 2015 stating that “NON DISH CUSTOMER KEEPS GETTING CALLS IN
REGARDS THIS ACCT.” (Doc. 27-7 at 2). The defendant says it “first learned”
it was calling the plaintiff rather than its customer on this date. (Doc. 27 at 10,
16).4 Because calls 2, 4 and 5 all occurred before August 18, 2015, (id. at 7), the
defendant concludes it cannot be exposed to an award of treble damages. (Id. at
Once again, the defendant’s presentation does not satisfy its initial burden
on motion for summary judgment. The defendant has offered no affidavit
supporting counsel’s insistence in brief that the defendant “first learned” it was
calling the wrong number on August 18; instead, the defendant simply invites the
Court to assume that, since August 18 is the earliest date its records reflect its
awareness, August 18 must be the earliest date it possessed such awareness. That
may be one reasonable inference from the defendant’s evidence, but it is not the
only one; it is equally plausible that the defendant knew previously that it was
calling the wrong number but simply failed to make a notation to that effect. Thus,
the defendant’s evidence does not negate an element of the plaintiff’s case for
According to the defendant, the customer’s cell number was erroneously entered
in the defendant’s records as the plaintiff’s number. (Doc. 27 at 1, 6).
treble damages and so does not carry the defendant’s initial burden. As a
consequence, its motion for summary judgment as to treble damages must be
Even had the defendant met its initial burden, the plaintiff’s evidence would
create a genuine issue of material fact. According to the plaintiff’s evidence, she
received a call on July 31, 2015 from a gentleman calling “to confirm the service
call” regarding “satellite television apparatus.” The plaintiff told him, “I’m not
this person. Please remove my number from the account.” (Doc. 27-3 at 6-7).
This is call 1, (Doc. 27 at 7), so it preceded calls 2, 4 and 5.
In its reply brief, the defendant points out that this call was not made from
the toll-free number associated with calls 2, 4 and 5 but from (251) 287-0517.
(Doc. 35 at 10; Doc. 27 at 7). The defendant then notes that, according to its
affiant, “DISH does not own, use, or control the telephone number 251-2870517,” has “never made a telephone call from” this number, and “does not know
to whom the ‘0517 number … belongs.” (Doc. 27-2 at 3). Moreover, the
defendant notes that calls 2, 4 and 5 were for installation, not service, so the
purpose of call 1 is inconsistent with the purpose (per the affiant) of the calls from
the defendant’s toll-free number. (Doc. 35 at 11). Finally, the plaintiff did not
testify that the caller identified himself as a DISH representative. (Id. at 10-11).
The defendant’s evidence and argument, however, could not eliminate the
fact issue raised by the plaintiff’s evidence even had the defendant not already lost
its motion for failure to meet its initial burden. The caller may not have identified
himself as associated with DISH, but he did call regarding “satellite television
apparatus,” which pretty well narrows the field of possible entities. The caller
may have discussed a “service” appointment as opposed to an “installation”
appointment, but this hardly raises an eyebrow, given that Memos reflects the
customer had been a customer since at least February 2013 and that the customer
in fact received a “technician visit” on August 14, 2015 after his “refusal to
troubleshoot.” (Doc. 27-7 at 3, 11). Memos also draws into question the affiant’s
denial of any connection between (251) 287-0517 and the defendant, since it
reflects that, on July 31, 2015 (the day of call 1), a “service call” was “cancelled
per customer request.” (Id. at 3). Perhaps it is just coincidence that the plaintiff
received a call on July 31 confirming a satellite TV service call while the
defendant’s internal records reflect the customer cancelled a satellite TV service
call on the same date, but the evidence supports an inference that the caller on call
1 was sufficiently associated with the defendant that his knowledge constitutes the
III. Plaintiff’s Request for Summary Judgment.
The Magistrate Judge established a deadline for filing dispositive motions
of April 15, 2016, later extended to May 20, 2016. (Docs. 12, 25). The plaintiff,
unlike the defendant, filed no dispositive motion. Instead, embedded within her
response filed June 17, 2016 is a request that the Court enter summary judgment in
her favor with respect to call 6. (Doc. 30 at 7-8). The request is procedurally
improper, both because it is not in the form of a motion5 and because it was made
long after the deadline for seeking such relief.6 Accordingly, the defendant’s
motion to strike the plaintiff’s request, (Doc. 36), is granted.
“A request for a court order must be made by motion.” Fed. R. Civ. P. 7(b)(1).
“We recognize that district courts enjoy broad discretion in deciding how best to
manage the cases before them.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366
(11th Cir. 1997). The Eleventh Circuit has repeatedly employed this rule to uphold trial
courts’ enforcement of deadlines. E.g., School Board of Collier County v. K.C., 285 F.3d
977, 981-82 (11th Cir. 2002) (untimely expert testimony); Enwonwu v. Fulton-DeKalb
Hospital Authority, 286 Fed. Appx. 586, 595 (11th Cir. 2008) (untimely motion for
summary judgment); Edman v. Marano, 177 Fed. Appx. 884, 886 (11th Cir. 2006)
(untimely request for mental examination); cf. Chapman v. AI Transport, 229 F.3d 1012,
1027 (11th Cir. 2000) (en banc) (“Parties opposing summary judgment are appropriately
charged with the responsibility of marshaling and presenting their evidence before
summary judgment is granted, not afterwards.”). The underlying principles are clear.
“[I]n order to ensure the orderly administration of justice, [a trial court] has the authority
and responsibility to set and enforce reasonable deadlines.” Lowe’s Home Centers, Inc.
v. Olin Corp., 313 F.3d 1307, 1315 (11th Cir. 2002). Accordingly, “[d]eadlines are not
For the reasons set forth above, the defendant’s motion for partial summary
judgment is granted as to Count Two and granted as to Count One with respect
to calls 1, 3 and 7 through 14. In all other respects, the defendant’s motion is
DONE and ORDERED this 13th day of July, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
meant to be aspirational,” and a litigant does not “ha[ve] carte blanche permission to
perform when he desires.” Young v. City of Palm Bay, 358 F.3d 859, 864 (11th Cir.
From the Court’s perspective, neither side has reason to be confident of its
position in this litigation. The Court expects both sides to exhibit substantially more
facility with the evidence and especially with the governing law should this case proceed
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