Jay Clogg Realty Group, Inc. et al v. Metropolitan Life Insurance Company et al

Filing 52

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/8/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JAY CLOGG REALTY GROUP,
INC., et al.

:

v.

:

Civil Action No. DKC 15-0493

:
METROPOLITAN LIFE INSURANCE
COMPANY, et al.

:

MEMORANDUM OPINION
Presently pending and ready for resolution in this case
brought under the Telephone Consumer Protection Act, 47 U.S.C. §
227

(“TCPA”),

Defendants

is

a

motion

Metropolitan

Life

for

summary

Insurance

judgment

Company

and

Group, Inc. (collectively, “MetLife” or “Defendants”).
35).

filed

by

MetLife
(ECF No.

Also pending is a motion for leave to file a surreply

filed by Plaintiffs.

(ECF No. 49).

The relevant issues have

been fully briefed, and the court now rules, no hearing being
deemed necessary.

Local Rule 105.6.

For the following reasons,

Defendants’ motion for summary judgment will be granted in part
and denied in part.

Plaintiffs’ motion for leave to file a

surreply will be denied.
I.

Background
A.

Factual Background

Unless otherwise noted, the facts here are undisputed and
construed in the light most favorable to Plaintiffs.
facts will be discussed in the analysis section.

Additional

Plaintiffs are

twenty-three
unsolicited

individuals
faxes

and

corporations

advertising

life

who

received

insurance

policies.

Plaintiffs contend that they opted out of a class action lawsuit
in

Illinois

state

Metropolitan

Life

action”).

court

known

Insurance

as

Shaun

Company,

(See ECF No. 2, at 2-3).

Fauley,

et

al.

et
(the

al.

v.

“class

The factual underpinning of

the class action and of this suit is that Scott Storick, who
worked for MetLife at the time, paid Robert Martino to send
multitudes of faxes advertising life insurance rates.
Nos. 35-1, at 2; 42, at 2-4).

(See ECF

Mr. Martino would send responses

he received to Mr. Storick, who would then follow-up and attempt
to sell a life insurance policy.1

Mr. Martino provided fax

advertising services to several clients (ECF No. 43-4, at 20),
and Mr. Storick testified in his deposition for the class action
that

other

MetLife

advertisements,

employees

including

at

sent
least

similar
one

unsolicited

other

Martino’s services (ECF No. 43-3, at 57-59).

who

used

fax
Mr.

In a deposition

taken as part of the class action, Mr. Martino testified that he
coded each fax based on which client’s behalf he was sending the
fax.

(ECF No. 35-12, at 3-4).

In Mr. Storick’s case, the code

1

The exact relationship between MetLife and Mr. Storick’s
utilization of Mr. Martino’s fax advertising operation is
disputed. These disputed facts are irrelevant and not material
because Defendants do not move for summary judgment based on
issues of MetLife’s direct or vicarious liability for Mr.
Storick’s actions.
2

“SS” or “1958” would be printed on the fax or in the fax’s
header.

(Id.).

In his deposition, Mr. Storick suggested that

he received some faxes without the codes.

(ECF No. 43-3, at 30-

32).
B.

Procedural History

On December 2, 2014, Plaintiffs filed their complaint in
the Circuit Court for Montgomery County.

(ECF No. 2).

After

being served on January 26, 2015, Defendants timely removed the
action

to

this

court.

(ECF

No.

1).

Plaintiffs’

complaint

alleges that Defendants violated the TCPA (Count I) and the
Maryland

equivalent

(Count

II),

and

includes

a

list

Plaintiffs’ fax numbers that received unsolicited faxes.
No. 2, at 12).

(ECF

On March 4, 2015, the court entered a scheduling

order stating that discovery would conclude on July 17.
No.

16).

discovery.

On

of

June

25,

(ECF No. 22).

for a protective order.

Plaintiffs

filed

a

motion

to

(ECF
extend

On July 10, Defendants filed a motion
(ECF No. 24).

The parties participated

in an unsuccessful settlement conference, and the undersigned
conducted two telephonic conferences with the parties regarding
the discovery motions on August 31 and September 16.
temporarily

granted

Defendants’

protective

order

The court

request

and

deferred ruling on Plaintiffs’ request for additional discovery.
On August 17, Defendants filed the pending motion for summary
judgment.

(ECF No. 35).

Plaintiffs responded and requested the
3

court defer ruling on summary judgment under Federal Rule of
Civil Procedure 56(d) due to a need for additional discovery
(ECF No. 42), and Plaintiffs replied (ECF No. 48).
then filed a motion for leave to file a surreply.
II.

Plaintiffs

(ECF No. 50).

Motion for Summary Judgment
A.

Standard of Review

Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(a) when there is no genuine dispute as to any
material

fact,

and

the

moving

party

is

plainly

judgment in its favor as a matter of law.

entitled

In

to

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court
of the United States explained that, in considering a motion for
summary judgment, the “judge’s function is not himself to weigh
the

evidence

determine

and

whether

determine

the

there

a

is

truth

genuine

of

the

issue

matter

for

but

trial.”

to
A

dispute about a material fact is genuine “if the evidence is
such

that

nonmoving

a

reasonable

party.”

jury

Id.

at

could

248.

return
Thus,

a

“the

verdict
judge

for

the

must

ask

himself not whether he thinks the evidence unmistakably favors
one

side

return

a

or

the

verdict

presented.”

other
for

but
the

whether
[nonmoving

a

fair-minded
party]

on

jury

the

could

evidence

Id. at 252.

In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
4

favorable to the party opposing the motion.”

Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting

United

States

v.

Diebold,

Inc.,

369

U.S.

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence

in

support

The mere existence of a “scintilla” of
of

the

nonmoving

party’s

case

is

not

sufficient to preclude an order granting summary judgment.

See

Liberty Lobby, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”

Shin v.

Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,

this

court

has

an

affirmative

obligation

to

prevent

factually unsupported claims and defenses from going to trial.
See

Drewitt

v.

Pratt,

999

F.2d

774,

778–79

(4th

Cir.

1993)

(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
B.

Analysis

The

TCPA

makes

it

unlawful

“for

any

person

within

the

United States . . . to use any telephone facsimile machine,
computer, or other device to send, to a telephone facsimile
machine,

an

227(b)(1)(C).

unsolicited

advertisement.”

47

U.S.C.

§

The Maryland analog statute provides that “[a]

person may not violate” the TCPA.

Md. Code, Com. Law § 14-3201.

Both statutes provide for a private right of action.
5

47 U.S.C.

§

227(b)(3);

argument

at

Md.

Code,

Com.

this

stage

is

Law
quite

§

14-3202(b).

simple:

they

Defendants’
contend

that

Plaintiffs have put forth no evidence showing that they received
faxes

from

Storick.

Defendants,

including

any

orchestrated

by

Mr.

Plaintiffs counter that they have produced copies of

many facsimile advertisements, which they allege were sent on
behalf of Defendants.
Plaintiffs

in

a

TCPA

action

generally

may

show

that

a

defendant sent a particular fax by utilizing two avenues of
evidence: the defendant’s transmission data and evidence from
the faxes themselves.

See Pasco v. Protus IP Solutions, Inc.,

826 F.Supp.2d 825, 831-33 (D.Md. 2011).

Here, Defendants rely

heavily on the fact that transmission data that was released in
the class action includes approximately 650,000 numbers to which
a life insurance advertisement was sent by Mr. Martino’s fax
broadcast operation, none of which are Plaintiffs’ fax numbers.
The

parties

agree,

however,

that

the

transmission

data

is

incomplete, covering only a small fraction of the relevant time
period, because Mr. Martino regularly destroyed the data.
Nos. 42, at 28; 48, at 6).

(ECF

Moreover, the transmission data is

of questionable relevance in this case because Mr. Martino sent
faxes for multiple clients, only one of whom is alleged to have
been working for MetLife.

Accordingly, the transmission data is

of limited assistance to either party.
6

As for the faxes themselves, Defendants argue that fifteen
of the plaintiffs did not produce a copy of any fax, and no
plaintiff

“has

Defendants,

any

produced
agent

a

of

fax
the

that

names

Defendants,

either

telephone number associated with the Defendants.”
1, at 6).

the

contains

or

of

any

(ECF No. 35-

Defendants further allege that none of the faxes

Plaintiffs produced contain the “SS” or “1958” code.

Plaintiffs

counter that they have produced copies of faxes, and all the
faxes have common features that can be tied back to Mr. Storick
and Mr. Martino’s operation.
the

faxes

other

contain

the

characteristics

same
as

In particular, they allege that
response

faxes

numbers,

confirmed

Martino on behalf of Mr. Storick.

to

headlines,
be

sent

by

and
Mr.

(See ECF No. 42, at 20).

Plaintiffs also assert that the lack of an “SS” or “1958” on a
fax is irrelevant because the coding system for the faxes was
not consistent.
Plaintiffs’
similar

layout

assertion
and

that

phrasing

the

to

Mr.

faxes

they

Storick’s

sufficient to survive summary judgment.

produced
faxes

is

have
not

As Plaintiffs admit,

many of the faxes closely resemble template faxes available on
Mr.

Martino’s

insurance

website

advertisements

and
that

are

nothing

could

have

more

than

generic

been

sent

by

insurance salesperson or any insurance company.
42, at 7).

any

(See ECF No.

The inclusion of a response number that is not
7

related

to

Mr.

Storick

or

MetLife

also

Defendants were responsible for the faxes.

does

not

show

that

Some of the response

numbers may be related to Mr. Martino, but Mr. Martino is not a
defendant in this case, and he sent faxes for many clients.
Such evidence is too attenuated to survive a motion for summary
judgment.
The only characteristic of the faxes that allows Plaintiffs
to tie them to Defendants or Mr. Storick in any way is the
presence of either the “SS” or “1958” code; Plaintiffs’ other
attempts to do so are too speculative.2

Plaintiffs assert that

Mr. Storick’s deposition testimony shows that his faxes did not
necessarily include “SS” or “1958.”

Even so, this does not

relieve Plaintiffs of putting forth evidence affirmatively tying
Defendants

to

the

faxes.

Only

one

Plaintiff,

Kensington

Physical Therapy, Inc. (“KPT”), has put forth any such evidence,
doing so in the form of two faxes marked with an “SS”.

(See ECF

No. 44-4 (faxes marked “Clogg v MetLife –- 000008” and “Clogg v
MetLife – 000162”)).3

Thus, all Plaintiffs other than KPT have

failed to produce any evidence that they received a violative

2

Plaintiffs’ arguments that additional discovery would
allow them to gather evidence tying the faxes to Defendants will
be addressed in a later section.
3

These two documents are identical and may be copies of the
same facsimile.
8

fax from or on behalf of Defendants.4

Furthermore, the parties

agree that the Maryland statute provides a cause of action only
for individual plaintiffs, not corporations.
10-11;

42,

at

Accordingly,

31);

see

Defendants’

Pasco,

motion

826

for

(ECF Nos. 35-1, at

F.Supp.2d

summary

at

843-44.

judgment

will

be

granted on Count I as to all Plaintiffs other than KPT, and on
Count II as to all Plaintiffs.
III. Motion for Leave to File a Surreply
Local

Rule

105.2(a)

states

that,

“[u]nless

otherwise

ordered by the Court, surreply memoranda are not permitted to be
filed.”

Surreplies are generally disfavored.

Chambers v. King

Buick GMC, LLC, 43 F.Supp.3d 575, 624 (D.Md. 2014) (citing Chubb
&

Son

v.

C.C.

(D.Md. 2013)).

Complete

Servs.,

LLC,

919

F.Supp.2d

666,

679

The court may permit a surreply when a party

would not otherwise have an opportunity to respond to arguments
raised for the first time in the opposing party’s reply.
Khoury

v.

Plaintiffs’

Meserve,
motion

268
asserts

F.Supp.2d
that

600,

605

Defendants’

(D.Md.
reply

See

2003).

“contains

material misstatements, and raises points that could have been
addressed

in

the

Motion

for

Summary

4

Judgment,

but

leave

Plaintiff Stanley Shapiro has the same fax numbers as KPT.
(ECF No. 2, at 12).
Defendants contend, however, that eight
individual Plaintiffs, including Mr. Shapiro, did not properly
opt out of the class action.
Seven of them, including Mr.
Shapiro, concede this point.
(ECF No. 42, at 30-31).
Accordingly, Mr. Shapiro is unable to proceed as an individual.
9

Plaintiffs without a fair opportunity to respond.”
at

1).

Specifically,

Plaintiffs

allege

(ECF No. 49,

that

Defendants

incorrectly assert that some Plaintiffs produced no faxes.
ECF

No.

44-4

Assuming

(copies

arguendo

of

that

faxes

received

a

surreply

would

by
be

(See

Plaintiffs)).
appropriate

to

address this point, one is not necessary because the court was
able

to

match

Plaintiff

the

based

identification

on

faxes
the

stamp

on

in

fax

ECF

No.

number

the

44-4

in

fax.

to

the

a

particular

header

Accordingly,

or

by

an

Plaintiffs’

motion for leave to file a surreply will be denied.
IV.

Plaintiffs’ Request for Extended Discovery
Ordinarily,

summary

judgment

is

inappropriate

if

“the

parties have not had an opportunity for reasonable discovery.”
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d
435, 448 (4th Cir. 2011).

Rule 56(d) allows the court to deny a

motion for summary judgment or delay ruling on the motion until
additional discovery has occurred if the “nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot
present

facts

Fed.R.Civ.P.
situations

essential

56(d).

where

the

“Such

to
a

justify

motion

discovery

is

sought

its
only

could

obtained during the course of normal discovery.”
Novartis

Pharms.

Corp.,

(citation omitted).

287

F.R.D.

357,

363

opposition.”
appropriate
not

have

in

been

Zimmerman v.
(D.Md.

2012)

Notably, “Rule 56(d) does not authorize
10

‘fishing expedition[s].’”

Nautilus Ins. Co. v. REMAC Am., Inc.,

956 F.Supp.2d 674, 683 (D.Md. 2013) (citation omitted).
Plaintiffs’ Rule 56(d) affidavit seeks five depositions and
numerous
According

categories
to

of

documents.

Plaintiffs,

(ECF

Defendants

No.

did

47-9,
not

at

6-8).

provide

a

substantive response to Plaintiffs’ discovery requests until 32
days before discovery closed, which did not provide Plaintiffs
enough time to “digest the materials received, and to take any
follow-up discovery.”

(Id. at 2).

Plaintiffs also assert that

the documents Defendants provided on September 10, 2015, which
included

deposition

transcripts

and

exhibits

from

the

class

action, “are harmful to Defendants, demonstrating the widespread
knowledge of Mr. Storick’s faxing activity, his bragging about
the return on his investment in the faxing, and the glaring
evidence of faxing that was not only left in plain view, but
waved in the faces of people who would be in a position to
curtail that activity.”
discovery

requests,

(ECF No. 42, at 20).

Plaintiffs

largely

In their initial

requested

materials

related to the class action, and contend that they were waiting
for this material before conducting additional discovery.
Much of the additional discovery requested by Plaintiffs
seeks information implicating MetLife for Mr. Storick’s actions,
which is not relevant to the current motion.

Plaintiffs also

appear to seek additional discovery in an attempt to discern the
11

identities

of

other

MetLife

employees

who

may

have

sent

unsolicited faxes in the hopes that they can be tied to the
faxes Plaintiffs received.
fishing

expedition

and

does

judgment under Rule 56(d).
very

few,

if

any,

Put simply, such a request is a
not

warrant

deferring

summary

During discovery, Plaintiffs made

discovery

requests

beyond

requests

for

information from the class action, and they have not shown why
they

were

precluded

from

doing

so.

Plaintiffs’

attenuated,

speculative, and conclusory accusations do not plausibly show
that the faxes they received were from other MetLife agents.
Moreover, Plaintiffs’ complaint is premised on the actions of
Mr. Storick, not other, unidentified MetLife agents.

In short,

“Plaintiff[s’] Rule 56(d) request is nothing more than a request
that [they] ‘be allowed to find out if [they have] a claim,
rather than that [they have] a claim for which [they] need[]’
discovery.”

Fierce v. Burwell, 101 F.Supp.3d 543, 554 (D.Md.

2015) (quoting Paddington Partners v. Bouchard, 34 F.3d 1132,
1138 (2d Cir. 1994)); see also Wright v. Eastman Kodak Co., 550
F.Supp.2d

371,

383

(W.D.N.Y.

2008)

(“While

a

Rule

56[(d)]

discovery request may be granted to allow a plaintiff to fill
material evidentiary gaps, it may not be premised solely on
speculation as to evidence which might be discovered: it does
not permit a plaintiff to engage in a fishing expedition.”).

12

Accordingly,

the

court

will

not

defer

ruling

on

Defendants’

motion for summary judgment.
V.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed by Defendants will be granted in part and denied in part.
Plaintiffs’

motion

to

file

a

surreply

will

be

denied.

separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

13

A