Crews v. Bankers Life Advisory Services Incorporated et al

Filing 40

ORDER denying Plaintiff's 32 Motion for Summary Judgment. Signed by Judge Susan M. Brnovich on 1/8/2025. (ESG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jason Crews,

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No. CV-23-02658-PHX-SMB
Plaintiff,

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v.

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Bankers
Life
Advisory
Incorporated, et al.,

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ORDER

Services

Defendants.

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Pending before the Court is Plaintiff Jason Crews’ (“Plaintiff”) Motion for

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Summary Judgment (Doc. 32) against Defendant James Covington (“Covington”). No

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Defendant responded. After reviewing Plaintiff’s brief and other pertinent filings on

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record, the Court will deny the Motion.

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I.

BACKGROUND

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This case arises out of a series of alleged “robocalls” made by Defendant to Plaintiff

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in violation of the Telephone Consumer Protection Act (“TCPA”). (Doc. 1 at 4 ¶¶ 9, 15.)1

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These calls occurred between November 2022 and January 2023. (Id.) Relevant to

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Plaintiff’s Motion for Summary Judgment are the alleged phone communications between

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Plaintiff and Covington. Plaintiff alleged that during a call, he was transferred to an

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individual that identified himself as “James Covington with license number 18985821.”

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(Id. at 6 ¶ 41.)

During that conversation, Covington claimed to be working for

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The Court cites to Plaintiff’s Complaint to inform the background of this case, as
Plaintiff’s Statement of Fact proffered in support of his Motion for Summary Judgment
does not provide all relevant background information. (See Doc. 32-1.)
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“healthcare.gov” and “Health Enrollment Center.” (Id. at ¶ 43.) Plaintiff’s cell phone

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number has been registered on the National Do Not Call Registry since November 7, 2006.

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(Id. at 4 ¶ 14.) Therefore, the calls he received at that number, including the call with

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Covington, violated the TCPA. (See id. at 13–15 ¶¶ 85–107.)

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Plaintiff filed suit on December 20, 2023. (Doc. 1.) During discovery, Covington

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was confirmed to have been an independent agent for Defendant K.F. Agency, Inc., an

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authorized agency of Defendant Banker’s Life Advisory Services, Inc. (“Bankers”), until

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May 27, 2021. (See Doc. 28 at 2.) Plaintiff learned of Covington’s separation from his

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employment through written responses to discovery request on May 20, 2024. (See id.)

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This issue became known to the Court through Covington’s former counsel’s Motion to

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Withdraw as Counsel (Doc. 28). In that Motion, Covington’s counsel explained that

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because Covington did not work for Bankers at the time the alleged calls were made, he

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was not an authorized agent of the other Defendants, and therefore counsel lacked the

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authority to represent Covington. (Id.)

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On June 7, 2024, after Covington’s counsel withdrew, Plaintiff served his First

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Request for Admissions (“FRA”) on Defendants. (Doc. 32-1 at 3; see also Doc. 32-2

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(Plaintiff’s Declaration); Doc. 32-3 (United States Postal Service Receipt).) Plaintiff has

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not provided a copy of the FRA. Additionally, Plaintiff served a Third Request for

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Admissions (“TRA”) on August 20, 2024. (Doc. 32-4.) On August 27, 2024, Plaintiff

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filed his Motion for Summary Judgment (Doc. 32).2 During the pendency of Plaintiff’s

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Motion, he filed a joint stipulation to dismiss all Defendants except for Covington, (see

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Doc. 35), which the Court granted, (Doc. 36). Thus, the issue before the Court is whether

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summary judgment is appropriate against Covington. For the reasons discussed herein, the

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Court finds that summary judgment is not appropriate and will therefore deny Plaintiff’s

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Motion.

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This timeline precludes any question from the TRA from being admissible evidence on
the Motion for Summary Judgment. Specifically, the Request was served seven days
before Plaintiff filed his Motion for Summary Judgment, and thus well before the thirty
(30) day period that must elapse before such requests are deemed admitted. (Doc. 32-4);
Fed. R. Civ. P. 36(a)(3).
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II.

LEGAL STANDARD

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Summary judgment is appropriate in circumstances where “there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of a case under

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the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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Factual disputes are genuine when the evidence could allow a reasonable jury to find in

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favor of the nonmoving party. Id. “A party asserting that a fact cannot be or is genuinely

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disputed must support the assertion by . . . citing to particular parts of materials in the

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record” or by “showing that an adverse party cannot produce admissible evidence to

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support the fact.” Fed. R. Civ. P. 56(c)(1)(A)–(B). Additionally, the Court may enter

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summary judgment “against a party who fails to make a showing sufficient to establish the

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existence of an element essential to that party’s case, and on which that party will bear the

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burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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When considering a motion for summary judgment, a court must view the evidence

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in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.

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Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must draw all reasonable

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inferences in the nonmovant’s favor. Anderson, 477 U.S. at 255. Additionally, the Court

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does not make credibility determinations or weigh the evidence.

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determination of whether a given factual dispute requires submission to a jury is guided by

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the substantive evidentiary standards that apply to the case. Id. at 255.

Id. at 253.

The

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The burden initially falls with the movant to demonstrate the basis for a motion for

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summary judgment, and “identifying those portions of [the record] which it believes

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demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S.

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at 323. If this initial burden is not met, the nonmovant does not need to produce anything

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even if they would have the ultimate burden of persuasion at trial. Nissan Fire & Marine

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Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000). However, if the initial

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burden is met by the movant, then the nonmovant has a burden to establish that there is a

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genuine issue of material fact. Id. at 1103. The nonmovant “must do more than simply

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show that there is some metaphysical doubt as to the material facts.” Zenith Radio Corp.,

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475 U.S. at 586. Bare assertions alone do not create a material issue of fact, and “[i]f the

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evidence is merely colorable, or is not significantly probative, summary judgment may be

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granted.” Anderson, 477 U.S. at 247–50 (citations omitted).

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III.

DISCUSSION

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Plaintiff argues that Defendants called him in violation of the TCPA in 2022 and

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2023. (Doc. 1 at 4 ¶ 15; Doc. 32-1 at 2 ¶¶ 2–3.) Additionally, Plaintiff alleged that “James

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Covington . . . was at all times relevant an employee of Defendant Bankers, and

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responsible for at least one of the alleged telephone calls complained herein.” (Doc. 1 at 3

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¶ 14.) Apart from these allegations, Plaintiff’s Motion does not adduce evidence or put

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forth argument to carry his burden under Rule 56. Therein, Plaintiff merely contends that

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“Defendants admitted that they or third parties acting on their behalf made multiple

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unsolicited calls to Plaintiff[],” “that the calls were made using an [Automatic Telephone

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Dialing System],” and that “Defendants admitted that they . . . called Plaintiff more than

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twice within a twelve-month period, that they did not maintain an internal do-not-call list,

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and that they failed to scrub numbers against the national do-not-call list before making the

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calls.” (Doc. 32 at 2.) In making these arguments, Plaintiff cites to his Statement of Facts
(Doc. 32-1), which in turn cites to the TRA (Doc. 32-4). Again, the TRA is not properly
before the Court, and thus any reliance on that document is improper.
Additionally, neither Plaintiff’s Statement of Facts nor his Motion delineate which
Defendants engaged in the alleged illegal acts. (See Doc. 32; Doc. 32-1.) Instead, Plaintiff
broadly refers to “Defendants” and their various admissions throughout both filings.
Plaintiff’s Motion fails to explain how each Defendant, including Covington, acted
individually or in concert to perpetrate the alleged TCPA violations. More troubling,
Plaintiff’s Statement of Facts does not set forth a single fact supported by evidence of acts
undertaken specifically by Covington. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting
that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record.”). Indeed, on this record, the Court could not
consider Covington as being part of the referred to group of “Defendants” targeted in the
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Motion because information exists showing that he did not work for Bankers during the

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period the calls occurred. (See Doc. 28 at 2.) At bottom, neither Plaintiff’s Statement of

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Facts nor Motion provide more than broad assertions against a nebulous collection of

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“Defendants” without regard as to how each Defendant’s individual acts violated the

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TCPA. This deficiency alone precludes summary judgment against Covington, as Plaintiff

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has not met his initial burden. See Celotex Corp., 477 U.S. at 323.

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Finally, Plaintiff does not contend with the issue of Covington’s employment

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timeline in his Motion for Summary Judgment. Instead, Plaintiff relies on his FRA, but

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having no copy of the document, the Court has no knowledge of what admissions Plaintiff

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requested. (Doc. 32-1 at 3; see also Doc. 32-2; Doc. 32-3.) And, even if the TRA were

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properly before the Court, evidence of Covington’s separation from employment in

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2021 belies Plaintiff’s argument that Covington made any of the violative calls in 2022 and

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2023. Ultimately, Plaintiff does not offer evidence refuting Covington’s separation from

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employment in 2021 nor his ability to make the calls on behalf of the terminated

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Defendants. Thus, without more, Plaintiff is not able to show that Covington worked for

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any Defendant or make the violative calls during 2022–2023.
Therefore, the Court will deny Plaintiff’s Motion for Summary Judgment. (Doc.

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32.)
IV.

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED denying Plaintiff’s Motion for Summary Judgment

(Doc. 32).
Dated this 8th day of January, 2025.

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