Mendez v. Optio Solutions, LLC et al

Filing 39

ORDER denying without prejudice 29 Defendant's Motion for Summary Judgment; granting 36 Plaintiff's Rule 56(d) Request. The Court, in its discretion, GRANTS Mendez's Rule 56(d) request and DENIES WITHOUT PREJUDICE Optio's mot ion for summary judgment. The parties are DIRECTED to contact the chambers of Magistrate Judge Crawford to conduct expedited discovery in preparation for the issues in Optio's motion for summary judgment. The magistrate judge will issue a schedu ling order concerning expedited discovery and a deadline for a renewed summary judgment motion should Optio choose to bring one. As noted, above, Judge Crawford may set all other dates she feels appropriate at this time. Signed by Judge Anthony J. Battaglia on 8/3/2017. (acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 SARAH MENDEZ, On Behalf Of Herself And All Others Similarly Situated, ORDER: Plaintiff, 13 14 Case No.: 16-CV-1882-AJB-KSC v. 15 OPTIO SOLUTIONS, LLC dba QUALIA COLLECTION SERVICES, 16 (1) DENYING WITHOUT PREJUDICE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, (Doc. No. 29); AND Defendant. (2) GRANTING PLAINTIFF’S RULE 56(d) REQUEST, (Doc. No. 36) 17 18 19 20 Presently before the Court is Defendant Optio Solutions, LLC’s (“Optio”) motion 21 for summary judgment. (Doc. No. 29.) Plaintiff Sarah Mendez (“Mendez”) opposes the 22 motion. (Doc. No. 36.) In conjunction with her opposition, Mendez asks the Court to 23 compel discovery pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. (Id. at 24 21–33.)1 Having reviewed the parties’ moving papers in light of controlling legal authority, 25 and pursuant to Local Civil Rule 7.1.d.1, the Court finds the matters suitable for decision 26 27 1 28 The Court cites to the blue CM/ECF-generated document and page numbers located at the top of the page. 1 16-CV-1882-AJB-KSC 1 without oral argument. Accordingly, the hearing date currently set for August 24, 2017, at 2 2:00 p.m. in Courtroom 4A is hereby VACATED. For the reasons set forth below, the 3 Court GRANTS Mendez’s Rule 56(d) request and DENIES Optio’s summary judgment 4 motion WITHOUT PREJUDICE. The parties are ORDERED to contact Magistrate 5 Judge Crawford to coordinate expedited discovery on the issues raised in Optio’s motion 6 for summary judgment and to set a deadline by which Optio may renew its motion should 7 it choose to do so. Judge Crawford may set all other dates she feels appropriate at this time. 8 BACKGROUND 9 Mendez alleges in her complaint that Optio, starting in or around October 2015, 10 made “at least 120 unsolicited phone calls” to her cellular phone in an attempt to collect a 11 debt. (Doc. No. 18 ¶¶ 17–19.) Mendez alleges that the calls were placed “via an automatic 12 telephone dialing system (“ATDS”) as defined by 47 U.S.C. § 227(a)(1), and by using “an 13 artificial or prerecorded voice system” as prohibited by 47 U.S.C. § 227(b)(1)(A).” (Id. ¶ 14 20.) Furthermore, Mendez alleges that Optio’s system had the capacity to produce or store 15 numbers randomly or sequentially, and to dial those numbers to place calls to Mendez’s 16 cellular phone. (Id.) As support for her claims, Mendez cites the volume of calls and 17 prerecorded voice messages that were “generic in nature and began in the middle of the 18 messages,” as evidence that Optio used an ATDS. (Id. ¶¶ 21–22.) Mendez alleges that the 19 calls were without her consent and that she incurred a charge for each call placed, a 20 violation of 47 U.S.C. § 227(b)(1). (Id. ¶¶ 23–26.) 21 Mendez seeks to represent a class of persons who she alleges “have all suffered 22 irreparable harm as a result of the Defendant’s unlawful and wrongful conduct.” (Id. ¶ 36.) 23 Through her complaint, Mendez alleges multiple violations of the Telephone Consumer 24 Protection Act (“TCPA”), 47 U.S.C. §§ 227 et seq., and seeks statutory and injunctive 25 relief. (Id. ¶¶ 40–56.) 26 On March 22, 2017, Magistrate Judge Karen S. Crawford issued an order setting an 27 early neutral evaluation (“ENE”) for May 16, 2017. (Doc. No. 26.) Prior to the ENE, on 28 March 28, 2017, counsel for Mendez and Optio met and conferred, at which time counsel 2 16-CV-1882-AJB-KSC 1 for Optio stated that the system used to call Mendez did not meet the definition of an ATDS. 2 (Doc. No. 36-1 ¶ 2.) Counsel for Mendez communicated that discovery on Optio’s phone 3 system would be necessary to respond to its defense and that any motion for summary 4 judgment at this stage would be premature. (Id.) Following this meeting, counsel for 5 Mendez sent an email requesting “manuals and training guides on the dialers, functionality, 6 policies and procedures relating to collection, and all information relative to the calls 7 placed to Plaintiff[.]” (Doc. No. 36-3 at 2.) This request was not acknowledged and no 8 informal discovery took place. (Doc. No. 36-1 ¶ 2.) 9 On May 16, 2017, Magistrate Judge Crawford conducted the ENE, during which 10 counsel for Optio stated that they intended to file a motion for summary judgment, and 11 counsel for Mendez advised that such a motion would be premature because discovery had 12 not yet commenced. (Doc. No. 36-1 ¶ 3.) The day after the ENE, Optio filed the instant 13 motion for summary judgment. (Doc. No. 29.) Mendez opposed the motion, and Optio 14 replied. (Doc. Nos. 36, 37.) In her opposition, Mendez requests relief under Rule 56(d) of 15 the Federal Rules of Civil Procedure2 to obtain discovery to properly respond to the 16 summary judgment motion. (Doc. No. 36 at 21–33.) This order follows. LEGAL STANDARD 17 18 Rule 56(d) provides a device for litigants to avoid summary judgment when they 19 have not had sufficient time to develop affirmative evidence. Burlington N. Santa Fe R. 20 Co. v. Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 21 2003). “The general principle of Rule [56(d)] is that ‘summary judgment [should] be 22 refused where the nonmoving party has not had the opportunity to discover information 23 that is essential to his opposition.” Price ex rel. Price v. W. Resources, Inc., 232 F.3d 779, 24 783 (10th Cir. 2000) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 250 n.5 (1986)). 25 The requesting party must show that “(1) it has set forth in affidavit form the specific facts 26 27 28 2 All references to “Rules” are to the Federal Rules of Civil Procedure. 3 16-CV-1882-AJB-KSC 1 it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after 2 facts are essential to oppose summary judgment.” Family Home & Fin. Ctr., Inc. v. Fed. 3 Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008). District courts should grant 4 a Rule 56(d) motion “fairly freely” where a summary judgment motion is filed before a 5 party has had a realistic opportunity to pursue discovery relevant to its theory of the case. 6 Burlington, 323 F.3d at 773. The Court has the discretion to either deny or continue a 7 motion for summary judgment “[i]f a nonmovant shows by affidavit or declaration that, for 8 specified reasons, it cannot present facts essential to justify its opposition[.]” Fed. R. Civ. 9 P. 56(d). 10 DISCUSSION 11 Mendez contends that she cannot adequately respond to Optio’s summary judgment 12 motion without discovery relating to Optio’s “‘custom-built’ dialing system.” (Doc. No. 13 36 at 28.) Specifically, Mendez argues she needs to complete discovery (1) to identify all 14 telephone dialing system equipment used to make calls, (see Doc. Nos. 36-4, 36-5); (2) on 15 information exchanged between Optio and Ontario Systems, an autodialing platform 16 service provider, (see Doc. No. 36-7); (3) to conduct a deposition of Shane Miller, Optio’s 17 Vice President of Information Services, whose declaration is integral to Optio’s summary 18 judgment motion, (see Doc. No. 36-1 ¶ 10); (4) on Optio’s registration of its dialing 19 equipment with the state of Texas to obtain a permit to use an “Automatic Dial Announcing 20 Device” in the state, (see Doc. Nos. 36-8, 36-9); and (5) on Optio’s prerecorded voice 21 message, (see Doc. No. 36-1 ¶ 9). (See also Doc. No. 36 at 29–32.) 22 Having reviewed the parties’ submissions, the Court finds Mendez has set forth facts 23 she hopes to elicit and shown that those facts exist and are essential to her opposition to 24 Optio’s summary judgment motion. See Family Home & Fin. Ctr., Inc., 525 F.3d at 827. 25 Moreover, given this case’s procedural posture, particularly in light of a scheduling order 26 having not yet been issued, the Court finds Optio’s motion, while technically complying 27 with Rule 56, is premature in this case. See Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 28 2004) (“summary judgment is disfavored where relevant evidence remains to be 4 16-CV-1882-AJB-KSC 1 discovered”). Accordingly, the Court GRANTS Mendez’s Rule 56(d) request and 2 DENIES WITHOUT PREJUDICE Optio’s summary judgment motion. See In re Apple 3 iPod iTunes Anti-Trust Litigation, Nos. C 05–00037 JW, C 07–06507 JW, 2010 WL 4 2629907, at *10 (N.D. Cal. June 29, 2010) (granting plaintiff’s Rule 56(f) motion for 5 additional discovery and denying defendant’s motion for summary judgment as 6 premature).3 7 CONCLUSION 8 Based on the foregoing, the Court, in its discretion, GRANTS Mendez’s Rule 56(d) 9 request and DENIES WITHOUT PREJUDICE Optio’s motion for summary judgment. 10 The parties are DIRECTED to contact the chambers of Magistrate Judge Crawford to 11 conduct expedited discovery in preparation for the issues in Optio’s motion for summary 12 judgment. The magistrate judge will issue a scheduling order concerning expedited 13 discovery and a deadline for a renewed summary judgment motion should Optio choose to 14 bring one. As noted, above, Judge Crawford may set all other dates she feels appropriate 15 at this time. 16 17 IT IS SO ORDERED. 18 Dated: August 3, 2017 19 20 21 22 23 24 25 26 27 Rule 56(d) is “substantively the same” as former Rule 56(f). Michelman v. Lincoln Nat’l Life Ins. Co., 685 F.3d 887, 899 n.7 (9th Cir. 2012). 3 28 5 16-CV-1882-AJB-KSC

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