Fostano v. Pioneer Credit Recovery, Inc.
Filing
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OPINION AND ORDER granting 23 Motion for Summary Judgment. Signed by Judge Kenneth A. Marra on 2/19/2014. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 13-80511-CIV-MARRA
JOSEPH J. FOSTANO,
Plaintiff,
v.
PIONEER CREDIT RECOVERY, INC.,
Defendant.
___________________________________/
OPINION AND ORDER GRANTING DEFENDANT SUMMARY JUDGMENT
THIS CAUSE is before the Court upon the Motion of Defendant Pioneer Credit
Recovery, Inc. to Dismiss Plaintiff’s First Amended Complaint [DE 23], which the Court
converted into a Motion for Summary Judgment [DE 32]. Both parties have submitted additional
papers since the conversion of the Motion to Dismiss [DE 37, 38, 39]. The Motion for Summary
Judgment is now ripe for review. The Court has reviewed all of the papers submitted by the
parties; the entire file in this matter; and is otherwise duly advised in the premises.
I. Background
Plaintiff brought this action alleging that Defendant had violated the Fair Debt Collection
Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”) and the Telephone Consumer Protection Act,
47 U.S.C. §227 et seq.(“TCPA”), by leaving a message on his cell phone voice mail on
September 4, 2012, and other occasions, using an automatic telephone dialing system or a prerecorded or artificial voice, and failing to inform Plaintiff that the message was from a debt
collector; failing to disclose its name; and failing to state the purpose of Defendant’s messages.
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[DE 1 at ¶¶10,11]. Defendant responded by bringing a Motion to Dismiss the Complaint,
arguing that the claims contained therein were barred by the class action settlement in Mark A.
Arthur, et. al. v. Sallie Mae, Inc., Case No. C10-00198 JLR (D. Ct. W. D.
Washington)(“Arthur”). Defendant requested that the Court take Judicial Notice of documents
relating to the Arthur case [DE 9], which the Court granted [DE 32].
Plaintiff responded to Defendant’s motion by stating: “After having the benefit of
Defendant’s argument in its Motion to Dismiss, Plaintiff has filed a First Amended Complaint . .
. .” [DE 22]. The First Amended Complaint (“FAC”) dropped the allegation of a violation of the
FDCPA, leaving only the TCPA allegations. Instead of alleging that the call had been placed on
September 4, 2012, the FAC alleged that the call had been made on September 24, 2012, and that
subsequent to September 17, 2012, Defendant had made similar calls [DE 21 at ¶¶5,6].
Presumably, Plaintiff made these changes because the Arthur settlement covered calls Defendant
made on or before September 17, 2012 [DE 9-5 at ¶9].
Defendant then moved to dismiss the FAC, without leave to amend, arguing that the
claims that Plaintiff makes in the FAC are also barred by the settlement in Arthur. The
settlement required class members to submit a Revocation Request or be deemed to have
provided prior express consent to receive future calls from Defendant through the use of an
automatic telephone dialing system and/or pre-recorded voice. Since Plaintiff did not submit a
Revocation Request, his claims are barred regardless of when the calls were made [DE 23 at 2].
Plaintiff responds by arguing that there was no prior express consent in the first place to
be revoked. Plaintiff also argues for the first time that there are factual questions as to whether
Plaintiff was a class member [DE 37].
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II. Summary Judgment Standard
The Court shall grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The stringent burden of establishing the absence of a genuine issue of material
fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court
should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and any doubts in this regard should be resolved
against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
The movant “bears the initial responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. To discharge this
burden, the movant must point out to the Court that there is an absence of evidence to support the
non-moving party’s case. Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production shifts and
the non-moving party “must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by citing to particular parts of materials in the record . . . or showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) and (B).
Essentially, so long as the non-moving party has had an ample opportunity to conduct
discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477
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U.S. at 257. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not
suffice; there must be enough of a showing that the jury could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the nonmoving party “is merely colorable, or is not significantly probative, then summary judgment may
be granted.” Anderson, 477 U.S. 242, 249-50.
The Court must view the movant’s evidence and all factual inferences arising from it in
the light most favorable to the non-movant. Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir.
2008). “All reasonable doubts about the facts should be resolved in favor of the non-movant.”
Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1280 (11th Cir. 2004)(citations omitted).
Pursuant to Fed. R. Civ. P. 56(d), if a nonmovant provides a reason why facts essential to
justify an opposition to the motion cannot be presented, a court may defer considering the motion
or deny it; allow time to obtain affidavits or declarations or to take discovery; or issue any other
appropriate order.
III. Discussion
Relying upon the documents as to which judicial notice has been taken,1 as well as the
Affidavit of Jennifer M. Keough [DE 8-1], Defendant has met its burden of informing the Court
of the basis for its motion, and has identified those portions of the record which it believes
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Judicial Notice has been taken of the following documents: (1) the Objection to Class
Settlement filed on December 16, 2010 by Plaintiff in the Arthur case; (2) the Amended
Settlement Agreement filed October 11, 2011 in the Arthur case; (3) the Order Certifying
Provisional Settlement Class, Preliminarily Approving Amended Class Action Settlement and
Providing for Notice to the Settlement Class filed on April 3, 2012 in the Arthur case; (4) the
Objection to Amended Class Settlement filed on July 9, 2012 by Plaintiff in the Arthur case; and
(5) the Settlement Order and Final Judgment filed September 17, 2012 in the Arthur case. [DE 9,
DE 32].
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demonstrate the absence of a genuine issue of material fact. Defendant has demonstrated the
following facts:
On April 3, 2012, the Arthur court issued an Order Certifying Provisional Settlement
Class, Preliminarily Approving Amended Class Action Settlement and Providing for Notice to
the Settlement Class (the “Preliminary Approval Order”) [DE 9-3]. The Settlement Class
consisted of:
All persons to whom, on or after October 27, 2005 and through September 14,
2010, Sallie Mae, Inc., or any other affiliate or subsidiary of SLM Corporation
placed a non-emergency telephone Call to a cellular telephone through the use of
an automated dialing system and/or an artificial or prerecorded voice. Excluded
from the Amended Settlement Class are . . . all persons who validly request
exclusion from the Settlement Class.
[Id. at ¶2].
The Preliminary Approval Order required that class notice be delivered to the Settlement
Class [Id. at ¶6]. The notice was approved by the Arthur Court, which held that it complied with
due process requirements [DE 9-5 at ¶12]. The notice explained that settlement class members
who did not wish to participate in the Settlement must exclude themselves from the lawsuit [DE
8-1 at 5]. It also stated that an agreement had been reached to stop automated calls to the cell
phone of Class Members “who file a valid revocation request” [Id.]. The notice explained that if
a Class Member did not exclude himself, he could object to the Amended Settlement [Id. at 6].
Finally, it stated that “If you do nothing, you will not stop the automated calls nor receive any
monetary award, and you will also lose the right to sue.” [Id., emphasis in original].
Plaintiff, along with eight other individuals, filed an Objection to Amended Class
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Settlement on July 3, 2012 [DE 9-4].2 This objection was filed on their behalf by their attorney,
who is the same attorney representing Plaintiff in the instant case. The Arthur Court found
Plaintiff’s objections to be “meritless.” [DE 9-5 at ¶ 5].
The Arthur Final Judgment expressly adopted and incorporated the terms of the Amended
Settlement Agreement [Id. at ¶ 1]. The Court found that “the Amended Settlement is, in all
respects, fair, reasonable and adequate to the Settlement Class Members, within the authority of
the parties and the result of extensive arm’s length negotiations.” [Id. at ¶3].
The Amended Settlement Agreement provides, in part, that “[a]ny Settlement Class
Member who has not submitted or does not submit a valid and timely Revocation Request will
be deemed to have provided prior express consent to the making of Calls by Sallie Mae or any
other affiliate or subsidiary of SLM Corporation to any phone numbers reflected in such entities’
records.” [DE 9-2 at 11]. All Revocation Requests were required to be sent to the settlement
claims administrator [Id. at 4, 11, 25].
Ms. Keough affirms that she is the Chief Operating Officer of The Garden City Group,
Inc. (“GCG”), the Claims Administrator for the Arthur class action settlement [DE 8-1 at ¶¶1-2].
She refers to her Declarations of May 17, 2012 and August 1, 2012 filed in the Arthur case in
support of her contention that GCG administered the Arthur settlement by mailing and emailing
notices to Settlement Class Members, tracking all claims filed, Revocation Request Forms
received, exclusion requests received, and objections received. These two Declarations are a
matter of public record in the Arthur case, as Docket Entries 224 and 249 respectively.
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Plaintiff had previously filed an objection to the class settlement along with six other
individuals on December 16, 2010. He was represented by the same attorney at that time. [DE 91].
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The May 17, 2012 Declaration sets forth how GCG obtained information identifying the
Settlement Class Members. Sallie Mae provided GCG with electronic lists of identified
Settlement Class Members that ultimately totaled 7,792,256 [Arthur DE 224 at ¶¶5-6].
Ms. Keough confirms that the GCG Settlement Database reflects that individual notice of
the Arthur settlement was given to Plaintiff [DE 8-1 ¶4]. She further confirms that GCG did not
receive a request from Plaintiff to opt out of the Settlement [Id. at ¶5]. GCG also did not receive
a Revocation Request Form from Plaintiff [Id. at ¶6].
Defendant having met its initial burden under Rule 56(a), the burden of production
shifted to Plaintiff, who had to “do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). Plaintiff has failed to meet his burden in this regard.
First, Plaintiff argues that he never gave express consent to receive calls after the Arthur
settlement [DE 37 at 1-3]. Plaintiff then argues that factual issues remain as to whether or not
Plaintiff was even a class member who would be bound by the class action settlement [Id. at 3].
He points to the fact that there is no evidence before the Court showing that Plaintiff received an
automated call between October 27, 2005 and September 14, 2010 [Id.]. Finally, Plaintiff argues
that the Arthur court “had no jurisdiction to expressly consent or authorize the class
representative to expressly consent to future automated calls on Plaintiff’s behalf.” [Id. at ¶4].
Plaintiff requests that the motion be denied and that he be permitted to conduct discovery [Id.].
Noticeably absent from Plaintiff’s papers is anything other than his attorney’s arguments.
There is no affidavit from Plaintiff swearing that he was not a class member. In fact, Plaintiff did
not allege that he was not a class member in either of his complaints. Furthermore, Plaintiff
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represented himself as a class member by filing his objections. He would not have had standing
to object if he were not a class member. Plaintiff has not, therefore, submitted any evidence to
refute Ms. Keough’s affidavit.
Whether the Arthur court had the authority to approve the revocation request procedure is
not properly brought before this Court. That issue could have been addressed upon an appeal
from the Arthur Settlement Order and Final Judgment. In the absence of a reversal of this Order
and Judgment on appeal, it remains binding upon Plaintiff and is determinative of the motion
before this Court. See Horton v. Met.Life Ins. Co., 459 F. Supp.2d 1246 (M.D. Fla.
2006)(discussing the res judicata effect of a class action settlement).
Pursuant to Fed. R. Civ. P. 56(d), Plaintiff has not provided a reason why facts essential
to justify an opposition to the motion cannot be presented such that this court should defer
considering the motion or deny it; allow time to obtain affidavits or declarations or to take
discovery; or issue any other appropriate order. Plaintiff simply states that he has not been
permitted to depose Defendant on the facts of the date of the phone calls to him [DE 37 at ¶4].
First, this information should be in Plaintiff’s possession or accessible to him from his own
phone company. Second, even if this is not the case, this argument goes to whether Plaintiff was
a class member. As noted above, not only did Plaintiff represent that he was a class member
before the Arthur court by filing objections to the settlement, but he has not submitted an
affidavit before this Court denying that he was a class member.
IV. Conclusion
Plaintiff has failed to refute that he was an Arthur class member. The Settlement Order
and Final Judgment in the Arthur case provides
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In aid to this Court’s jurisdiction to implement and enforce the
Amended Settlement, Plaintiffs and all Settlement Class Members
and all persons purporting to act on behalf of Settlement Class
Members are enjoined, directly, on a representative basis or in any
other capacity, from asserting, commencing, prosecuting or
continuing any of the Released Claims against Sallie Mae or any of
the other Released Parties in any action, arbitration or proceeding
in any court, arbitral forum or tribunal.
[DE 9-5 at ¶11]. The referenced release specifically includes Defendant as a Released Party [Id.
at ¶9]. By its terms, the release covers all claims made by Plaintiff herein. Plaintiff’s claims are,
therefore, barred by the Arthur Settlement Order and Final Judgment. There exist no genuine
disputes as to any material fact, and Defendant is entitled to judgment in its favor.
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant Pioneer Credit
Recovery, Inc.’s Motion for Summary Judgment [DE 23] is GRANTED. In accordance with
Fed. R. Civ. P. 58, final judgment will be entered by separate order.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida this 19th day of February, 2014.
__________________________
KENNETH A. MARRA
United States District Judge
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