O'Shea v. American Solar Solution, Inc.
Filing
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ORDER denying 116 Motion for Summary Judgment. The parties shall attend the settlement conference before the Honorable Ruben B. Brooks scheduled for June 6, 2018 137 . If the case remains unsettled following the settlement conference, the parties shall initiate a conference call with the undersigneds law clerk on June 7, 2018 at 1:00 PM to discuss a trial start date. Following said conference call, the Court will issue a trial scheduling order. Signed by Judge M. James Lorenz on 5/21/2018. (sjt)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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KERRY O'SHEA,
Case No.: 3:14-cv-00894-L-RBB
Plaintiff,
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v.
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ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT
AMERICAN SOLAR SOLUTION, INC.,
Defendant.
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Pending before the Court is Plaintiff Kerry O’Shea’s (“Plaintiff”) motion for
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summary judgment. (MSJ [Doc. 119].) Pursuant to Civil Local Rule 7.1(d)(1), the Court
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decides the matter on the papers submitted and without oral argument. For the reasons
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stated below, the Court DENIES Plaintiff’s motion.
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3:14-cv-00894-L-RBB
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I.
BACKGROUND
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This case is a class action alleging Defendant American Solar Solution, Inc.
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(“Defendant”) violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §
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227 et seq., by using an automatic telephone dialer system (“ATDS”) to place
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telemarketing calls to cell phones. Defendant is in the business of selling solar energy
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equipment to residential and commercial customers. To market its products and services,
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Defendant used a ViciDial predictive dialer to contact phone numbers uploaded into the
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dialer. Defendant purchased these telephone numbers from several different companies
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that sell lists of phone numbers that connect to members of a population meeting certain
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demographic criteria. Per Plaintiff’s expert’s report, Defendant made 897,534 calls to
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220,007 different cell phone numbers. Defendant has no evidence indicating any of the
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alleged call recipients provided prior express consent to receive these calls.
Defendant placed fifteen calls to named Plaintiff Kerry O’Shea’s (“Plaintiff”) cell
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phone. Accordingly, Plaintiff filed a class action complaint alleging Defendant’s conduct
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violated the TCPA. Plaintiff successfully moved for class certification and now moves
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for summary judgment awarding the class damages in the amount of $1,500 or, in the
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alternative, $500 per call. (Class Cert. Grant [Doc. 88]; MSJ [Doc. 116].) Defendant
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opposes. (Opp’n [Doc. 129].)
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II.
LEGAL STANDARD
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 "if the
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movant shows that there is no genuine dispute as to any material fact and the movant is
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entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
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477 U.S. 317, 322 (1986). The party seeking summary judgment bears the initial burden
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of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
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Where, as here, “the party moving for summary judgment would bear the burden of proof
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at trial, it must come forward with evidence which would entitle it to a directed verdict if
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3:14-cv-00894-L-RBB
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the evidence went uncontroverted at trial.” See C.A.R. Transp. Brokerage Co., Inc. v.
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Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).
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If the moving party fails to discharge its initial burden, summary judgment must be
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denied and the court need not consider the nonmoving party’s evidence. Adickes v. S.H.
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Kress & Co., 398 U.S. 144, 159–60 (1970). If the moving party meets the initial burden,
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the nonmoving party cannot defeat summary judgment merely by demonstrating “that
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there is some metaphysical doubt as to the material facts.” Matsushita Elect. Indus. Co.,
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Ltd. v Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party must
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“go beyond the pleadings” and by “the depositions, answers to interrogatories, and
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admissions on file,” designate “specific facts showing that there is a genuine issue for
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trial.” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
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III.
DISCUSSION
To prevail on a TCPA claim, a plaintiff must prove that the defendant used an
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automated telephone dialing system (“ATDS”) to call a cell phone for purposes of
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communicating an advertisement. 47 U.S.C. § 227 (b)(1)(A)(iii). However, it is a
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defense if a defendant proves it had prior express present to make such a call. Van Patten
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v. Vertical Fitness Grp. LLC, 847 F.3d 1037, 1044 (9th Cir. 2017). Here, there appears to
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be no dispute as to the facts that (1) Defendant used an ATDS to place telemarketing calls
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to cell phones and (2) Defendant has no evidence tending to suggest it had prior express
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consent to make said calls. Rather, the issue is damages.
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Each discrete TCPA violation triggers a minimum $500 statutory fine. 47 U.S.C. §
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227(b)(3)(B). If the facts show that a violation was willful or knowing, the Court has
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discretion to increase the fine up to $1500. 47 U.S.C. § 227(b)(3)(C). Plaintiff contends
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that Defendant knowingly and / or willfully made 897,304 calls. Defendant contends that
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it did not place any calls knowingly or willfully. Defendant also contends that there is a
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triable issue of fact as to exactly how many calls it placed in violation of the TCPA.
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3:14-cv-00894-L-RBB
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Plaintiff presents two arguments to the effect that it has carried its burden of
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demonstrating Defendant made 897,304 calls. First, Plaintiff argues that Defendant
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admitted as much by way of a joint stipulation of fact. Specifically, the parties’ jointly
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stipulated that “Plaintiff’s expert, Jeffrey A. Hansen (“Hansen”), has identified 897,304
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total calls to 220,007 unique cell phones during the time period from November 22, 2012
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through August 22, 2015.” (Joint Stipulation [Doc. 116-4] 38.) This argument is
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unpersuasive. From the fact that Defendant stipulated that Plaintiff’s expert in fact
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reached a certain conclusion, it does not follow that Defendant stipulated to the accuracy
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of that conclusion.
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Next, Plaintiff argues that it is entitled to summary judgment because no
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reasonable jury could doubt the accuracy of its expert’s report. In his report, Hansen
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contends that he received Defendant’s outbound dial list and imported it into a database.
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(Hansen Report ¶ 50.) Hansen then scrubbed this list against two telephone number
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databases that the telecommunications industry uses to distinguish cell phone numbers
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from landline numbers. (Id. ¶ 44.) Next, Hansen used these databases to identify which
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landline numbers had been ported into cell phone numbers and vice versa. (Id. ¶ 44, 51.)
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This scrubbing process led Hansen to conclude that Defendant placed 897,534 calls to
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220,007 different cellphones during the relevant time period. (Id. ¶ 52.)
Having reviewed Hansen’s Report, the Court agrees that it appears to be
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methodologically sound and rather persuasive. It seems that a reasonable jury could find
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the Report to be accurate. That said, the Court cannot hold as a matter of law that a
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reasonable jury could not conclude otherwise. It is feasible that, after cross examination,
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a jury could find Hansen’s conclusions are flawed for any number of reasons, such as
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improper reliance on these specific databases and programs or potential errors in data
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entry. Because there is a fact issue as to the accuracy of Hansen’s Report, the Court
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DENIES Plaintiff’s motion for summary judgment.
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3:14-cv-00894-L-RBB
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IV.
CONCLUSION & ORDER
For the foregoing reasons, the Court DENIES Plaintiff’s motion for summary
judgment. The Court further orders as follows:
The parties shall attend the settlement conference before the Honorable
Ruben B. Brooks scheduled for June 6, 2018. (Doc. 137.)
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If the case remains unsettled following the settlement conference, the parties
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shall initiate a conference call with the undersigned’s law clerk on June 7,
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2018 at 1:00 PM to discuss a trial start date. Following said conference call,
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the Court will issue a trial scheduling order.
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IT IS SO ORDERED.
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Dated: May 21, 2018
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