Camayd v. United Auto Credit Corporation

Filing 53

Opinion Order on Defendants Objection to Report and Recommendation on Motion for Summary Judgment; Adopting 42 Report and Recommendations ; denying 14 Motion for Summary Judgment. Signed by Judge Robert N. Scola, Jr on 1/3/2019. See attached document for full details. (vmz)

United States District Court
for the
Southern District of Florida
Jeanette Camayd, Plaintiff,
v.
United Auto Credit Corporation,
Defendant.

)
)
)
) Civil Action No. 17-24538-Civ-Scola
)
)
)

Opinion Order on Defendant’s Objection to Report
and Recommendation on Motion for Summary Judgment
Plaintiff Jeanette Camayd (“Camayd”) asserts two counts under the
Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. (“TCPA”),
on behalf of herself and a putative class of like individuals arising from the
certain unconsented calls made to her by Defendant United Auto Credit
Corporation (“UACC”).
UACC filed a motion for summary judgment early in discovery, raising
two arguments: (1) that UACC placed one call to Camayd through a “LiveVox”
calling system that does not qualify as an automatic telephone dialing system
(“ATDS”), as is required to sustain the TCPA claims, and (2) that Camayd
lacked Article III standing. (the “Motion,” ECF No. 14.) The Court referred the
Motion to Magistrate Judge Edwin G. Torres for a report and recommendation.
(ECF No. 29.) On November 7, 2018, Judge Torres issued a report
recommending the Motion be denied, ultimately finding that UACC “ha[d] not
come close to meeting its burden in establishing it is entitled to judgment as a
matter of law.” (the “R&R,” ECF No. 42 at p. 8.)
Now before the Court is an objection to the R&R filed by UACC. (the
“Objection,” ECF No. 44.) Having reviewed the R&R, the Objection, Camayd’s
response (ECF No. 49), the Motion and accompanying submissions (ECF Nos.
14, 23, 25) and the applicable law, the Court overrules the Objection (ECF No.
44), adopts the R&R (ECF No. 42) in full and denies the Motion (ECF No. 14),
as follows.
1.

The Objection

In the R&R, Judge Torres recommended that the Motion be denied on
three grounds: (1) that a genuine dispute of fact exists as to the number of
calls placed by UACC to Camayd’s cell phone, and whether two additional calls
identified by Camayd were placed through an ATDS (ECF No. 42 at p. 5); (2)

that the affidavit of Carey Kauffman (“Kauffman”), a director of UACC, which
was the only evidence attached to the Motion, failed to satisfy Fed. R. Civ. P.
56(c)(4), (id. at pp. 5-6); and (3) that the timing of the Motion deprived Camayd
of the ability to seek discovery of the LiveVox calling system, resulting in an
incomplete and insufficient record to determine if that system qualifies as an
ATDS, (id. at pp. 6-8).
UACC objects to the R&R and argues: (1) that the R&R did not account
for UACC’s reply brief and the additional evidentiary materials attached to that
filing, which UACC claims dispels every dispute of material fact identified by
Judge Torres, (ECF No. 44 at pp. 2-4); (2) that a sufficient evidentiary record
exists to find the LiveVox system was not an ATDS, (id. at pp. 5-6); (3) that
Kauffman’s declaration is based on personal knowledge and is proper summary
judgment evidence, (id. at pp. 6-8); and (4) that no dispute of fact exists as to
the number of calls UACC placed to Camayd’s phone, (id. at pp. 8-10).
2.

Legal Standard

“In order to challenge the findings and recommendations of the
magistrate judge, a party must file written objections which shall specifically
identify the portions of the proposed findings and recommendation to which
objection is made and the specific basis for objection.” Macort v. Prem, Inc., 208
F. App'x 781, 783 (11th Cir. 2006) (quoting Heath v. Jones, 863 F.2d 815, 822
(11th Cir. 1989)(alterations omitted)). The objections must also present
“supporting legal authority.” Local Mag. J. R. 4(b). Once a district court
receives “objections meeting the specificity requirement set out above,” it must
“make a de novo determination of those portions of the report to which
objection is made and may accept, reject, or modify in whole or in part, the
findings or recommendations made by the magistrate judge.” Macort, 208 F.
App'x at 783–84 (quoting Heath, 863 F.2d at 822) (alterations omitted). To the
extent a party fails to object to parts of the magistrate judge’s report, those
portions are reviewed for clear error. Macort, 208 F. App'x at 784
(quoting Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)). A
court, in its discretion, need not consider arguments that were not, in the first
instance, presented to the magistrate judge. Williams v. McNeil, 557 F.3d 1287,
1291 (11th Cir. 2009).
3.

The Objection is Overruled

The Court overrules the Objection. Procedurally, the Court has no
obligation to consider the new argument and evidence attached UACC’s reply
brief, (ECF No. 25), to which Camayd had no opportunity to respond. See Tafel
v. Lion Antique Invs. & Consulting Servs., 459 F. App’x 847, 849 (11th Cir.

2012) (holding that “[t]he district court had no obligation to consider an
argument raised for the first time in the reply brief”); Powell v. Carey Int'l, Inc.,
490 F. Supp. 2d 1202, 1206 n. 4 (S.D. Fla. 2006) (Seitz, J.) (stating that “the
Court cannot consider new arguments raised for the first time in a reply
brief.”); Vitola v. Paramount Automated Food Servs., Inc., No. 08-61849-CIV,
2009 WL 3242011, at *12 (S.D. Fla. Oct. 6, 2009) (O’Sullivan, Mag J.) (holding
the same). Nonetheless, even if Camayd could have responded, it would not
likely have been meaningful due to UACC’s “demonstrated unwillingness to
engage in discovery” at the time the Motion was briefed. (ECF No. 32 at p. 8.)
That alone is a sufficient reason to deny the Motion. See Fed. R. Civ. P. 56(d)(1)
(“If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may defer
considering the motion or deny it”); (ECF No. 23-1 (declaration of counsel
attesting to an inability to present facts due to UACC’s refusal to meaningfully
engage in discovery).)
Substantively, the affidavit evidence attached to UACC’s reply (ECF No.
25 at pp. 9-21) fails to resolve the disputes of material fact identified in the
R&R. In its Motion, UACC claims that it placed one call to Camayd using the
LiveVox system, which it argues is not an ATDS and, thus, cannot support
liability under the TCPA. (ECF No. 14.) But UACC has not rebutted or even
explained why its own records show that it made two additional and
unaccounted for calls to Camayd’s phone. (See ECF Nos. 23-4, 44 at pp. 9-10.)
So, even if the Court found that the LiveVox system is not an ATDS (which it
does not), there would still be a dispute of material fact regarding what dialing
system was used for the two other calls and whether that system is an ATDS.
Put differently, UACC’s additional evidence does not entitle it to summary
judgment.
4.

Conclusion

In sum, the Court overrules the Objection (ECF No. 44), adopts the R&R
(ECF No. 42) in full and denies the Motion (ECF No. 14).
Done and ordered, in Chambers, in Miami, Florida, on January 3, 2019.

Robert N. Scola, Jr.
United States District Judge