Carroll v. SGS North America, Inc.

Filing 40

RULING : For reasons stated, Defendant's 26 Motion for Summary Judgment on Carrolls TCPA claim is DENIED, and Defendant's Motion for Summary Judgment on Carrolls state law claims is GRANTED. Signed by Judge Shelly D. Dick on 9/21/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TAYLOR CARROLL

CIVIL ACTION

VERSUS

16-537-SDD-RLB

SGS NORTH AMERICA, INC.

RULING
This matter is before the Court on the Motion for Summary Judgement1 filed by
Defendant, SGS North America, Inc. (“Defendant”). Plaintiff, Taylor Carroll, (“Carroll”)
has filed an Opposition2 to this motion, to which the Defendant has filed a Reply.3 Carroll
also provided the Court with a Notice of Supplemental Authority in support of its’
Opposition.4 For the following reasons, the motion will be GRANTED IN PART AND
DENIED IN PART.
I.

FACTUAL BACKGROUND5
Carroll and his wife leased a 2013 Acura TL (“vehicle”) from Acura of Baton Rouge

on June 22, 2013. In order for his wife to receive a better lease price, Carroll asked Acura
of Baton Rouge6 to use his cellphone number on the credit application.7

Carroll’s

cellphone number was also listed as the home phone number on the credit application.8

1

Rec. Doc. 26.
Rec. Doc. 30.
3
Rec. Doc. 32.
4
Rec. Doc. 39.
5
The Court draws the factual background from the following documents: Rec. Docs. 25, 26-1, 30, and 32.
6
Acura of Baton Rouge directed the credit application to Acura Financing Services (“AHFC”).
7
Rec. Doc. 30-3, p. 9, l. 16-21.
8
Rec. Doc. 30-1.
40601
Page 1 of 10
2

Carroll argues that the salesman at Acura of Baton Rouge “knew [the home phone
number] was my cell phone number.”9 Acura of Baton Rouge then “directed the credit
application to American Honda Finance Corporation, doing business as Acura Financial
Services (“AHFC”).”10 According to the Defendant, “despite the inaccuracy [listing the
cellphone number in the box title[d] home phone], [Carroll’s wife] signed the Credit
Application, which included a certification that all of the information contained therein was
‘true, correct, and complete.’”11
Carrol’s wife leased the automobile on June 23, 2013. AHFC “monitors leases
and, when a lease will soon expire, electronically forwards to SGS certain information
provided by the customer in the credit application, including his or her ‘Home Phone’ and
work numbers as listed therein.”12 Pursuant to their contract with AHFC, SGS provides
end of lease inspections on vehicles leased through AHFC.13 Carrol alleges “from May
9, 2016 to May 20, 2016, [he] received nine prerecorded calls on his cell phone from
Defendant, using equipment having predictive dialing capability, sent in an attempt to
schedule a vehicle inspection.”14 Carroll filed this action alleging the Defendant violated
47 U.S.C. §227, the Telephone Consumer Protection Act (“TCPA”), “by placing nonemergency telephone calls using an automatic telephone dialing system (“ATDS”) and an
artificial or prerecorded voice to cellular phone subscribers without their prior express

9

Rec. Doc. 30-3, p. 9, l. 6-12. When asked how Carroll knew that the Acura of Baton Rouge employee
knew that the home phone number was actually his cell phone number Carroll stated, “Because he typed
it in the cellphone box.” Id. at. l.10-12.
10
Rec. Doc. 26-1, p. 2.
11
Id.
12
Id. at p. 3.
13
Id. at p. 3.
14
Rec. Doc. 30, pp. 3-4.
40601
Page 2 of 10

consent, in violation of 47 U.S.C. §227(b)(1)(A).”15

Carroll’s petition also contains

Louisiana state law claims for invasion of privacy, nuisance, and conversion.16 Carroll
filed individually and on behalf of the class - the class has not been certified at the time
of this ruling. The Defendant now moves for summary judgment on Carroll’s TCPA claim
and Louisiana state law claims. Carroll has opposed this motion.
II.

LAW AND ANALYSIS
A. 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.”17 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”18 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”19 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”20 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a

15

Rec. Doc. 25, p. 1, ¶ 1.
Id. at pp. 13-17, ¶¶ 48-64.
17
Fed. R. Civ. P. 56(a).
18
Delta & Pine Land v. Nationwide Agribusiness Ins., 530 F.3d 395, 398-99 (5th Cir. 2008).
19
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552 (1986))).
20
Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan World
Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
40601
Page 3 of 10
16

scintilla of evidence.”21
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”22 All reasonable factual
inferences are drawn in favor of the nonmoving party.23 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”24 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; the plaintiff [can]not rest on his
allegations … to get to a jury without any ‘significant probative evidence tending to support
the complaint.’”25
B. Carroll’s TCPA Claim26
To survive the Defendant’s motion Carroll must provide summary judgment
evidence on the following three elements of his TCPA claim: “(1) the defendant called a
cellular telephone number; (2) using an automatic telephone dialing system; and (3)
without the recipient’s prior express consent.”27 To the first element, the Defendant does
not dispute that it called Carroll’s phone number, rather the Defendant argues that it
contacted Carroll’s cellphone because it was the same number that was provided as the

21

Willis v. Roche Biomedical Labs., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994).
22
Pylant v. Hartford Life & Accident, 497 F.3d 536, 538 (5th Cir. 2007)(quoting Anderson v. Liberty Lobby,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
23
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
24
RSR v. Int’l. Ins., 612 F.3d 851, 857 (5th Cir. 2010).
25
Nat’l Ass’n of Gov’t Employs v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
26
The Court’s research did not yield any relevant jurisprudence from the Fifth Circuit Court of Appeals.
Accordingly, the Court will consult jurisprudence from other Courts of Appeal.
27
Meyer v. Portfolio Recovery Assoc., 707 F.3d 1036, 1043 (9th Cir. 2012).
40601
Page 4 of 10

“putative ‘Home Number’ as stated in the credit application.”28 The call log provided by
Defendant lists nine separate times Defendant left a message or called Carroll’s
cellphone number.29 Accordingly, the Court finds that Carroll has presented summary
judgment evidence regarding the first element of his TCPA.
The Court considers the Ninth Circuit case Meyer v. Portfolio Recovery Associates,
LLC30 in evaluating the second element of Carroll’s TCPA claim. The Meyer court held,
“[t]he clear language of the TCPA mandates that the focus [regarding whether the call
was made using automatic telephone dialing system] must be on whether the equipment
has the capacity to store or produce telephone numbers to be called, using a random or
sequential

number

generator.”31

Anthony

Perkins

(“Perkins”),

a

designated

representative of the Defendant, stated that the predictive dialer, the equipment used to
call Carroll’s cellphone, generated all nine prerecorded calls during May of 2016.32
Perkins testified the Defendant33 receives either home or work numbers from AHFC and
inputs and stores the numbers in the predictive caller system.34 Accordingly, the Court
finds that Carroll has presented summary judgment evidence that the Defendant used a
telephone dialing system that had the capacity to store his telephone number.

28

Rec. Doc. 26-1, p. 4.
Rec. Doc. 26-6, p. 17.
30
707 F.3d at 1043 (9th Cir. 2012).
31
Id.
32
Rec. Doc. 30-5, pp. 8-10.
33
The Court finds that contractors, such as the Defendant, may contact individuals using phone numbers
which they have received from intermediaries, like AHFC; “[] Fausto, Baird, and Greene all stand for the
proposition that a third-party contractor performing services for the entity to which a plaintiff provided her
cell phone number stands in the shoes of that entity in a consent analysis.” Toney v. Quality Resources,
75 F.Supp.3d 727, 735 (N.D. Ill. Dec.1, 2014)(See, e.g., Baird v. Sabre, 995 F. Supp.2d 1110, 1106 (C.D.
Cal. Jan. 28, 2014)(“No reasonable consumer could believe that consenting to be contacted by an airline
company about a scheduled flight requires that all communications be made by direct employees of the
airline, but never by any contractors performing services for the airline.”)).
34
Rec. Doc. 30-5 at pp. 3-5, 8-10.
40601
Page 5 of 10
29

Lastly, the Court must determine whether Carroll provided his prior express
consent to receive the disputed phone calls. The Defendant argues that Carroll provided
his prior express consent and the phone calls were non-telemarketing and nonadvertising in nature. Carroll maintains the phone calls were dual purpose – to perform
end of lease maintenance and for the purpose of maintaining a positive relationship with
customers to encourage them to lease another Acura vehicle. According to Carroll,
because the phone calls had the additional purpose of soliciting further business for
Acura, the Defendant was required to obtain Carroll’s prior express consent to receive
telemarketing and advertising calls.
The Ninth Circuit in Chesbro v. Best Buy Stores, L.P. outlined the consent
necessary for dual purpose phone calls.35 In Chesbro, Best Buy argued that the purpose
of the alleged phone calls were “purely informational.”36 The plaintiff, like Carroll, argued
that the purpose of the phone calls was informational and a form of solicitation because
he was encouraged to purchase future products from Best Buy.37 Best Buy argued that
the phone calls could not be seen as advertisements or solicitations because no products
or services were explicitly mentioned. The court in Chesbro held:
We approach the problem with a measure of common sense.
The robot-calls urge the listener to “redeem” his Reward Zone
points, directed him to a website where he could further
engage with the [Reward Zone Points], and thanked him for
“shopping at Best Buy.” Redeeming Reward Zone points
required going to a Best Buy store and making further
purchases of Best Buy’s goods. There was no other used for
the Reward Zone points. Thus, the calls encouraged the
listener to make future purchases at Best Buy. Neither the
statute nor the regulations require an explicit mention of a
35

705 F.3d 913, 917 (9th Cir. 2012).
Id. at 919.
37
Id.
40601
36

Page 6 of 10

good, product, or service where the implications is clear from
the context. Any additional information provided in the calls
does not inoculate them.38
Here, SGS39 was asked, “Why does American Honda want to have inspections off
premises?”40 SGS testified:
Because as I mentioned earlier, it’s better for their customers.
They’re trying to preserve the relationship with the client and
keep them as a customer and keeping them in a new
automobile. Our service is an outsource service that for our
customers was previously done in house. So we’re just
working as an agent in extension of American Honda. In a
way it’s an extension of sales. Not as an extension to sell our
service, but an extension to keep that customer happy and
engaged with American Honda.41
Carroll argues that, “Given this stated purpose, which is similar to that in Chesbro, Bennett
and Golan, the calls constitute either an advertisement or telemarketing, for which prior
express written consent is required.”42 The Defendant argues that a common sense view
of the phone calls indicates they were for customer service purposes. SGS further argues
that “[the] cases establish the need for a close nexus between the communication and
the actual promotion of ‘goods’ or ‘services’ in exchange for money.”43 Based on the
evidence contained in the record and the relevant jurisprudence, the Court finds that the
purpose for the phone calls was dual - customer service and to solicit future sales and
revenues. The Defendant presented no evidence that Carroll provided prior express
written consent to receive telemarketing and advertising calls. The Court finds that Carroll
has presented summary judgment evidence of his TCPA claim.

38

Accordingly, the

Id. at 918.
Rec. Doc. 26-6, p.1. SGS was deposed through Anthony Perkins, its designated representative.
40
Id., p. 8, ll. 5-6.
41
Id. at ll. 7-18.
42
Rec. Doc. 30, p. 7.
43
Rec. Doc. 32, p. 4.
40601
Page 7 of 10
39

Defendant’s Motion for Summary Judgment on Carroll’s TCPA claim is DENIED.
C. Carroll’s Louisiana State Law Claims
The Defendant moves for summary judgment on Carroll’s state law claims
including: invasion of privacy,44 Nuisance,45 and Conversion.46 This Court has held that
“Louisiana courts have allowed tort actions for invasion of privacy which involves the basic
right of a person to be let alone in his private affairs.”47 Carroll must come forward with
summary judgment evidence that the Defendant’s conduct was “unreasonable and […]
seriously interfere[d] with [his] privacy interest.”48 Carroll attempts to defeat summary
judgment by alleging that, “because [he] did not consent to receiving automated calls on
his wireless phone, a valid state law claim for nuisance, invasion of privacy and
conversion has been asserted.”49 A conclusory argument that he did not consent to the
phone calls, without some summary judgment evidence of unreasonable and serious
interference with his privacy interests, will not defeat the Defendant’s motion for summary
judgment on his invasion of privacy claim.50 Accordingly, the Defendant’s Motion for
Summary Judgment on Carroll’s invasion of privacy claim is GRANTED.
The Defendant argues that Carroll’s nuisance claim must fail because a nuisance
action under Louisiana law stems from a real property interest.51 Under Louisiana law a
nuisance action is derived from the invasion of a real property interest.52 A plaintiff
44

Rec. Doc. 26-1, p. 11.
Id. p. 13.
46
Id. p. 14.
47
Walker-Jones v. La Ass’n. of Educators, No. 15-cv-1584, 2016 WL 1169473 at *2 (M.D. La. Mar. 22,
2016).
48
Id.
49
Rec. Doc. 30, p. 10.
50
See supra note 25.
51
Rec. Doc. 26-1, p. 13.
52
East Feliciana Parish Police Jury v. Guidry, 04-1197, pp. 10-12 (La. App. 1st Cir. 8/10/05); 923 So.2d 45,
51-52.
40601
Page 8 of 10
45

alleging nuisance must claim real damage to their property – mere inconvenience is not
sufficient.

53

Carroll again attempts to defeat summary judgment by alleging, that

“because [he] did not consent to receiving automated calls on his wireless phone, a valid
state law claim for nuisance, invasion of privacy and conversion has been asserted.”54
Carroll offers no evidence that he had a real property interest that was disturbed by these
alleged phone calls, or that he suffered real damage to his property. Accordingly, the
Defendant’s Motion for Summary Judgment on Carroll’s nuisance claim is GRANTED.
Lastly, the Defendant argues that Carroll’s state law conversion claim fails as a
matter of law.55 The Louisiana Supreme Court has held, “a conversion consists of an act
in derogation of the plaintiff’s possessory rights, and any wrongful exercise or assumption
of authority over another’s goods, depriving him of the possession, permanently or for an
indefinite time, is a conversion.”56 Carroll again uses the omnibus statement, “because
[he] did not consent to receiving automated calls on his wireless phone, a valid state law
claim for nuisance, invasion of privacy and conversion has been asserted,”57 as an
attempt to defeat the Defendant’s motion for summary judgment. Carroll’s conclusory
allegation fails to demonstrate how the Defendant’s phone calls divested him of his
possessory rights over his cellphone. Accordingly, the Defendant’s motion for summary
judgment on Carroll’s conversion claims is GRANTED.

53

Id.
Rec. Doc. 30, p. 10.
55
Rec. Doc. 26-1, p. 15.
56
Quealy v. Paine, Webber, Jackson & Curtis, 475 So.2d 756, 760 (La. 1985).
57
Rec. Doc. 30, p. 10.
40601
54

Page 9 of 10

III.

CONCLUSION
For the reasons stated above, Defendant’s Motion for Summary Judgment on

Carroll’s TCPA claim is DENIED, and Defendant’s Motion for Summary Judgment on
Carroll’s state law claims is GRANTED.58
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on September 21, 2017.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

58

Rec. Doc. 26.
40601
Page 10 of 10