Silver v. Pennsylvania Higher Education Assistance Agency

Filing 71

ORDER re defendant's motion for summary judgment 67 by Judge Phyllis J. Hamilton. (pjhlc2, COURT STAFF) (Filed on 6/6/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NEIL SILVER,

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Case No. 14-cv-00652-PJH

Plaintiff,

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v.

ORDER RE DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT

PENNSYLVANIA HIGHER EDUCATION
ASSISTANCE AGENCY,

Re: Dkt. No. 67

United States District Court
Northern District of California

Defendant.
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Before the court is defendant’s second motion for summary judgment. Having

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reviewed the parties papers and evaluated the parties’ positions regarding the Ninth

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Circuit’s memorandum disposition, the court has determined that the Ninth Circuit’s

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decision forecloses the issues raised in defendant’s motion.

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On March 31, 2016, this court granted defendant’s first motion for summary

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judgment holding that the “retroactivity issue [was] dispositive” and declining to reach the

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issues of consent, use of an ATDS, and willfulness. See generally Dkt. 52. Though the

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district court did not address the latter three issues, plaintiff’s subsequent appeal raised

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and fully briefed those issues as well as the retroactivity issue. On December 13, 2017,

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the Ninth Circuit reversed this court on the retroactivity issue and also “conclude[d] that

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disputed issues of material fact preclude summary judgment on each of the alternative

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grounds presented.” Dkt. 60 at 4. Defendant’s second motion for summary judgment

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does not raise any new factual issues that were not before the Ninth Circuit. Additionally,

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the court is not persuaded that the change in the law applicable in the D.C. Circuit is

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sufficient to justify ignoring the explicit language of the Ninth Circuit’s memorandum

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disposition in this case. Accordingly, defendant’s motion is TERMINATED.
The parties shall meet and confer and submit a stipulation and proposed order
setting a briefing schedule for plaintiff’s motion for class certification.
IT IS SO ORDERED.
Dated: June 6, 2018
__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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United States District Court
Northern District of California

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