Shupe et al v. Bank of America NA

Filing 180

ORDER ADOPTING REPORT AND RECOMMENDATION. The 172 Report and Recommendation is accepted and adopted; Plaintiff's 156 Motion to Compel is DENIED AS MOOT. Defendant's 129 Motion for Summary Judgment is GRANTED and this case is dismissed. The Clerk of the Court shall enter judgment accordingly and close the file in this matter. Signed by Judge Jennifer G Zipps on 3/11/2015. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Shupe, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-13-00019-TUC-JGZ

Bank of America NA,

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Defendant.

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Pending before the Court is a Report and Recommendation issued by United
States Magistrate Judge Jacqueline M. Rateau that recommends granting Defendant’s
Motion for Summary Judgment. (Doc. 172.) As thoroughly explained by Magistrate
Judge Rateau, Plaintiffs are not entitled to relief under the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227, because they failed to show that any of the
telephone calls made by Defendant were pre-recorded.

Plaintiffs are similarly not

entitled to relief on their state law claim, under A.R.S. § 42-1282, because calls that are
permitted under federal law are expressly permitted under the Arizona statute and
therefore are not unlawful. Finally, Plaintiffs failed to present sufficient evidence that
would entitle them to relief on their claim for invasion of privacy under Arizona state
law. As Plaintiffs’ objections do not undermine the analysis and proper conclusion
reached by Magistrate Judge Rateau, Plaintiff’s objections are rejected and the Report
and Recommendation is adopted.

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At the time the Report and Recommendation was filed, Plaintiffs’ Motion to

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Compel was pending. (Doc. 144.) Although the Report and Recommendation doesn’t

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address the pending Motion, the issue of outstanding material evidence is raised by

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Plaintiffs in their Objection to the Report and Recommendation (Doc. 178) and in their

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Response to Defendant’s Motion for Summary Judgment (Doc. 162). Plaintiffs assert a

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need for additional time to locate “four individuals who hold material evidence in support

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of Plaintiffs [sic] claims.” Pls.’ Resp. to Def.’s Mot. Summ. J. 10/28/14 (Doc. 162) 3:3-

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5. These individuals include Jose Ascension Sontoyo, the third party previously listed for

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the Plaintiffs’ home phone number, as well as three individuals employed by Defendant

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who allegedly made calls to Plaintiffs’ home number. Although Rule 56(d) does allow

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for additional discovery while a motion for summary judgment is pending, Plaintiffs have

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not explained in an affidavit how the “sought-after facts are ‘essential’ to resist the

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summary judgment motion.” State of California, on behalf of California Department of

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Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). Locating Mr.

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Sontoyo is immaterial to the issue of whether the calls were pre-recorded for the purposes

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of liability under the TCPA. Similarly, the identification of individuals who placed calls

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to Plaintiffs’ home number would only lend further support to the Court’s finding that the

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calls were not in fact pre-recorded and therefore did not violate the TCPA.

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Accordingly, IT IS HEREBY ORDERED as follows:
1. The Report and Recommendation (Doc. 172) is accepted and adopted;

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2. Plaintiff’s Motion to Compel (Doc 156) is DENIED AS MOOT;

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3. Defendant’s Motion for Summary Judgment (Doc. 129) is GRANTED and this

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case is dismissed;
4. The Clerk of the Court shall enter judgment accordingly and close the file in this
matter.
Dated this 11th day of March, 2015.

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