Thomas v. Abercrombie and Fitch et al
Filing
65
OPINION and ORDER Granting Plaintiff's Combined 57 Motion to Reconsider Order Denying Plaintiff's Motion for Leave to file Corrected Exhibit and for Relief from Judgment. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Melissa N. Thomas,
Plaintiff,
Case No. 16-cv-11467
v.
Judith E. Levy
United States District Judge
Abercrombie & Fitch Co., et al.,
Mag. Judge Mona K. Majzoub
Defendants.
________________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S COMBINED
MOTION TO RECONSIDER ORDER DENYING PLAINTFF’S
MOTION FOR LEAVE TO FILE CORRECTED EXHIBIT AND
FOR RELIEF FROM JUDGMENT [57]
In response to defendants Abercrombie & Fitch Co. and
Abercrombie & Fitch Stores, Inc.’s motion for summary judgment on her
Telephone Consumer Protection Act (“TCPA”) claim, plaintiff Melissa N.
Thomas attempted to use unauthenticated business records from her
cellular service provider, AT&T, to show that she did not send a text
message authorizing future text messages from defendants. Defendants
objected to the admissibility of these records both in their motion for
summary judgment and in their reply to the plaintiff’s response. At oral
1
argument, the Court engaged in a substantial exchange with plaintiff’s
counsel inquiring how the records could be admitted.
The day after oral argument, plaintiff’s counsel filed a motion to
submit an affidavit from a representative of her cellular service provider
authenticating the business records. The Court denied the motion to
submit the affidavit, and granted defendants’ motion for summary
judgment, as plaintiff could offer no admissible evidence in support of her
case, and the uncontroverted evidence warranted the grant of summary
judgment. (Dkts. 52 and 53.)
Plaintiff has now filed a combination motion for reconsideration,
motion to alter or amend the judgment under Fed. R. Civ. P. 59(e), and
motion for relief from the judgment under Fed. R. Civ. P. 60(b)(1) and (6).
(Dkt. 57.)
I.
Legal Standard
Plaintiff has filed her motion as one for reconsideration under E.D.
Mich. Local R. 7.1(h), one to alter or amend the judgment under Fed. R.
Civ. P. 59(e), and one for relief under Fed. R. Civ. P. 60(b)(1) and (6).
Plaintiff’s motion is untimely under Local Rule 7.1(h)(1), which requires
that motions for reconsideration be filed within fourteen days after entry
2
of the judgment or order. The motion was timely filed under Rules 59
and 60.
“A motion under Rule 59(e) is not an opportunity to re-argue a
case.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d
367, 374 (6th Cir. 1998). “Parties should not use them to raise arguments
which could, and should, have been made before judgment issued.
Motions under Rule 59(e) must either clearly establish a manifest error
of law or must present newly discovered evidence.” Id. (citing FDIC v.
World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992)).
Rule 60(b)(1) provides relief in one of two instances: “(1) when the
party has made an excusable litigation mistake or an attorney in the
litigation has acted without authority; or (2) when the judge has made a
substantive mistake of law or fact in the final judgment or order.” Cacevic
v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000). Rule 60(b)(6)
permits relief from a judgment or order for “any other reason that
justifies relief” not already set forth in subsections (1)-(5) of Rule 60. It
may be applied only in “unusual and extreme situations where principles
of equity mandate relief.” Olle v. Henry & Wright Corp., 910 F.2d 357,
365 (6th Cir. 1990) (emphasis in original).
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II.
Analysis
Fed. R. Civ. P. 56(c)(2) states that “[a] party may object that the
material cited to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.” “[O]nce an objection is properly
made, the proponent must ‘show that the material is admissible as
presented or . . . explain the admissible form that is anticipated.’”
Mangum v. Repp, 674 Fed. Appx. 531, 536-37 (6th Cir. 2017) (citing Fed
R. Civ. P. 56(c) advisory committee’s note to 2010 amendment).
Fed. R. Civ. P. 56(e) states that “[i]f a party fails to properly support
an assertion of fact or fails to properly address another party’s assertion
of fact as required by Rule 56(c), the court may: (1) give an opportunity
to properly support or address the fact; (2) consider the fact undisputed
for purposes of the motion; (3) grant summary judgment if the motion
and supporting materials — including the facts considered undisputed —
show that the movant is entitled to it; or (4) issue any other appropriate
order.”
In their motion for summary judgment, defendants argued that the
AT&T records plaintiff provided were “woefully short of admissible
evidence.” (Dkt. 37 at 32.) Plaintiff provided the records in her response,
4
and they did not contain a certification from a representative of AT&T as
required by Fed. R. Evid. 803(6)(D) to show that business record are
admissible. (Dkt. 42-2.) In their reply, defendants argued at length that
the records were inadmissible. (Dkt. 43 at 6-7.)
At oral argument on October 5, 2017, the Court asked plaintiff’s
counsel how plaintiff would authenticate the AT&T records, and
plaintiff’s counsel first stated that plaintiff could authenticate the records
(Dkt. 47 at 16-17, 19-20), then appeared to confuse the documents
provided in response to the motion for summary judgment with the
cellular billing records she provided in response to defendants’ motion to
dismiss. (Id. at 17-18.) Plaintiff also argued that she was not required
to respond to the objection, because it was raised for the first time in
defendant’s reply brief.
(Id. at 20-21, 27.)
Only after repeated
questioning did plaintiff’s counsel state that “[w]hat we would do [to
make these records admissible] is simply get an affidavit from somebody
at AT&T that their records are accurate.” (Id. at 22.)
On October 6, 2017, plaintiff filed a motion for leave to file a
corrected version of the records containing the affidavit certifying the
AT&T records as business records. (Dkt. 46.) Plaintiff stated that the
5
reason she did not provide the affidavit, which she received on March 16,
2017, is because her counsel overlooked it. (Dkt. 46 at 2.) The parties
agreed in their briefing that the applicable rule was Fed. R. Civ. P. 6(c)(2),
governing the filing of affidavits support or opposing a motion. The Court
denied the motion, because plaintiff failed to show good cause for the latefiled affidavit, and granted defendants’ motion for summary judgment.
(Dkts. 52 and 53.)
Plaintiff now argues the following in her motion under Rules 59(e)
and 60(b): (1) she attached a different document, her cell phone billing
records, to her response to defendants’ prior motion to dismiss, and the
Court should have considered those records; (2) the Court erred by
treating plaintiff’s motion to amend her phone records as a motion for
extension of time; (3) the affidavit was not required at all by Rule 56(c),
because a party does not have to provide admissible evidence until the
opposing party objects; (4) Rule 56(e) requires that a party be allowed to
submit late-filed affidavits; (5) plaintiff met her burden under Rule 56(c)
of showing the records were admissible at trial; and (6) the records were
admissible because they were either self-authenticating under Fed. R.
Evid. 902(7) or because the records were not hearsay. In her reply in
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support of this motion, plaintiff notes for the first time that during oral
argument on the motion for summary judgment, her counsel stated that
plaintiff could obtain an affidavit authenticating her phone records.
(Dkt. 62 at 2.)
A. Plaintiff Did Not Reference or Direct the Court to the
Billing Records Attached to the Response to the
Motion to Dismiss
The cell phone billing records plaintiff provided in response to
defendants’ motion to dismiss (Dkt. 27) were not referenced in her
response to defendants’ motion for summary judgment. The Court has
no duty to scour the record to find factual support for a party’s claims.
Magnum Towing & Recovery v. City of Toledo, 287 F. App'x 442, 449 (6th
Cir. 2008) (“It is not the district court's . . . duty to search through the
record to develop a party's claims; the litigant must direct the court to
evidence in support of its arguments before the court.”) Further, it is not
the Court’s duty to search through the record attached to a different filing
altogether.
B. The Court Did Not Err in Denying Plaintiffs’ Motion
to File the Untimely Affidavit
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Plaintiff argues that the Court erred by applying Fed. R. Civ. P.
6(c)(2) to her motion for leave to file the affidavit of the custodian of
AT&T’s business records. Plaintiff argues instead that “Federal Rule 56
was amended in 2010 to eliminate the affidavit requirement to
authenticate records.” (Dkt. 57 at 20.)
Plaintiff’s argument rests on the 2010 amendments to Fed. R. Civ.
P. 56(c) and the corresponding committee notes. In relevant part, the
notes state that: “The requirement that a sworn or certified copy of a
paper referred to in an affidavit or declaration be attached to the affidavit
or declaration is omitted as unnecessary given the requirement in
subdivision (c)(1)(A) that a statement or dispute of fact be supported by
materials in the record.” Fed. R. Civ. P. 56(c)(4) advisory committee’s
note to 2010 amendment.
Rule 56(c)(4) states that “An affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters
stated.”
There is no reasonable way to read Rule 56(c) in the manner
plaintiff wishes. First, the rule has nothing to do with whether affidavits
8
are required to authenticate records. It concerns the content required in
an affidavit or declaration used in support of a motion. The advisory note
concerns documents attached to an affidavit or declaration, not affidavits
or declarations attached to documents. (It should be noted that the
advisory note also states that such documents are still required, just by
Rule (c)(1)(A) rather than Rule (c)(4).) Second, the Federal Rules of
Evidence create requirements that business records be supported by an
affidavit or declaration, not the Federal Rules of Civil Procedure. Third,
if the Advisory Committee on Rules intended for Fed. R. Civ. P. 56 to
abolish the requirements of Fed. R. Civ. P. 6(c) with regard to motions for
summary judgment, the Committee would have said so.
Plaintiff also argues Rules 56(c) and (e) require that “a party must
be permitted an opportunity to respond to evidentiary objections with an
affidavit or other evidence.” (Dkt. 57 at 21.) In support of this, plaintiff
cites Foreword Magazine, Inc. v. Overdrive, Inc., Case No. 10-cv-1144,
2011 WL 5169384, at *2 (W.D. Mich. 2011), which states that “[t]he
revised Rule therefore clearly contemplates that the proponent of
evidence will have the ability to address the opponent's objections, and
the Rule allows the court to give the proponent ‘an opportunity to
9
properly support or address the fact,’ if the court finds the objection
meritorious.”
Plaintiff had two opportunities to address defendants’ objections:
first in her response to the motion to dismiss, and then at oral argument.
Plaintiff also could have sought leave to file a surreply, which would have
been given. Plaintiff’s responses to defendants’ objections are set forth
above.
In accordance with Rule 56(e)(1), plaintiff was given “an
opportunity to properly support or address the fact.” As noted below,
plaintiff did explain how she could make the AT&T records admissible at
trial, but that is not relevant to her effort to file the untimely affidavit.
It should also be noted that Rule 56(e)(1) is permissive, not
mandatory, in that it states options “the court may” take, not options the
Court must take. The Court did not err in denying the motion to file the
untimely affidavit.
C. Plaintiff Was Required to Provide Either Admissible
Evidence or Evidence She Could Show Would Be
Admissible at Trial in Response to the Motion for
Summary Judgment
The Court cannot consider evidence at summary judgment that a
jury could not consider at trial. Gohl v. Livonia Pub. Schs. Sch. Dist., 836
10
F.3d 672, 681 (6th Cir. 2016). Plaintiff argues that, based on her reading
of the advisory notes to the 2010 amendment to Rule 56, she was not
required to provide admissible evidence.
However, the advisory notes and Rule 56 do not remove the need
for parties to authenticate evidence under the Federal Rules of Evidence.
Further, as plaintiff herself noted, “the party proffering a piece of
evidence must show, or it must be ‘obvious,’ that the evidence ‘can be
replaced by proper evidence at trial.’” Hill v. Walker, Case No. 13-cv13097, 2015 WL 5211919, at *11 (E.D. Mich. Aug. 31, 2015) (quoting
Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997)).
D. Rule 56(e) Does Not Mandate That the Court Grant
Leave to File Untimely Affidavits
Plaintiff argues that she was never required to submit the affidavit
from the custodian of AT&T’s records, but to the extent she was, she was
only required to do so to rebut defendants’ objection, and so the Court
was required to permit the filing of the affidavit. As previously noted,
the Court was not required to do so, and had already given plaintiff the
opportunity to demonstrate how the records would have been admissible
at trial.
11
E. The Argument That the AT&T Records Are Otherwise
Admissible Should Have Been Made Before Judgment
Was Entered
For the first time, plaintiff argues that the AT&T records are
admissible as self-authenticating records, because they bear AT&T’s
trade inscription. Fed. R. Evid. 902(7). Plaintiff also argues that the
phone records are not hearsay, because they are not being offered to show
the content of the text messages, but rather to “demonstrate the number
of text messages exchanged between Plaintiff and Defendants.” (Dkt. 57
at 28.)
Under Rule 59(e), the Court cannot consider arguments that could
have been made before judgment was entered, but were not. Both of
these arguments were available to plaintiff before the Court entered
judgment, and could have been asserted. Parties may not make new legal
arguments in Rule 60(b) motions. Jinks v. AlliedSignal, Inc., 250 F.3d
318, 386 (6th Cir. 2001).
Notably, the phone records are clearly hearsay. Hearsay is an outof-court statement that “a party offers in evidence to prove the truth of
the matter asserted in the statement.” Fed. R. Evid. 801(c). The AT&T
records set forth the sender and recipient of each text message sent to
12
and from plaintiff’s phone on the relevant dates. The records are being
offered for the truth of the matter they assert: that on the dates in
question, defendants sent a particular number of text messages to
plaintiff, and plaintiff did or did not respond.
Finally, whether the records are authenticated under Fed. R. Evid.
902(7), plaintiff must still show that the hearsay statements in the
records are admissible. See 31 Wright & Miller, Fed. Prac. & Proc. Evid.
§ 7134 (1st ed.) (“Even if the authentication requirement is satisfied,
however, the item is not necessarily admissible.”).
F. Plaintiff’s Counsel Referenced A Manner of
Presenting the Phone Records in An Admissible Form
At Oral Argument
Plaintiff, pursuant to Fed. R. Civ. P. 56(e), was given an opportunity
to address defendants’ properly waged objections to the admissibility of
her evidence.
As set forth above, plaintiff’s counsel has continually
insisted that the evidence attached to her response to the motion for
summary judgment was either admissible on grounds inapplicable to the
evidence, or did not need to be admissible at all. These arguments are
wrong.
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However, in plaintiff’s reply brief to this motion, she noted the
following exchange during the hearing on the motion for summary
judgment:
THE COURT: . . . [T]hey make their motion for summary
judgment, then you come back and tell us what the material
question of fact is and how you're going to show. How is a
rational jury going to come out in your favor? And then in the
reply brief, they tie it all up and say that doesn't work.
MR. OPPENHEIM: Right. But this wasn't the first set of
briefing on this issue or these records. If you'll recall, first
there was a motion to dismiss.
THE COURT: I do recall.
MR. OPPENHEIM: And then these same records were in our
response then. And we didn't have any of this argument at
that point and we went forward. We had the depositions that
were ordered. And now we've still got this discrepancy in the
two sets of records. Ultimately I think it would be a disservice
to decide this motion in the case based on this late arising
argument when, in fact -- and I guess this would [be] my
answer to your Honor's prior question. What we would do is
simply get an affidavit from somebody at AT&T that their
records are accurate.
(Dkt. 47 at 21-22.)
At the point where defendants objected to plaintiff’s ability to
provide admissible evidence in support of her version of the facts under
14
Fed. R. Civ. P. 56(c)(2), it was incumbent on plaintiff to demonstrate how
she could provide evidence that a jury could consider. Although plaintiff
has not made this argument, her offer to obtain the affidavit that would
make the evidence admissible overcomes defendants’ Rule 56(c)(2)
objection, because she offered to obtain the affidavit that would make the
records admissible under Fed. R. Evid. 803(6).
Accordingly, the Rule 56(c)(2) objection is overruled, relief is
warranted under Fed. R. Civ. P. 59(e), and the Court may consider the
AT&T phone records.
G. Summary Judgment
Because the Court may consider plaintiff’s phone records, the Court
must determine whether those records create a genuine issue of material
fact precluding a grant of summary judgment to defendants on plaintiff’s
TCPA claim. The Court will adopt the factual background from the order
granting summary judgment. (Dkt. 53 at 2-6.)
On December 4, 2015, defendants had a promotional page on the
Abercrombie Kids website that read:
we’ve got something for you
text style
to 34824
for a surprise offer and a&f texts*
15
*Msg & Data Rates May Apply. By texting the key word to
34824, you consent to receive up to ten (10) marketing text
messages per calendar month that may be sent via an
automated system. Consent to receive texts at the mobile
number provided is not a condition of purchasing goods or
services. Text or reply STOP to cancel, and HELP for help.
See TEXT TERMS & PRIVACY POLICY
(Dkt. 37-4 at 15 (emphasis and capitalization in original).)
Plaintiff’s phone records, which are now admissible, show that she
sent one text message to the shortcode defendants provided, 34824, on
December 4, 2015, at 1:34:20 P.M. Eastern Standard Time (“EST”), and
that defendants responded six seconds later, at 1:34:26 P.M. EST. (Dkt.
42-2 at 2.) Plaintiff’s records show no further text messages between the
parties that day.
Plaintiff provides no evidence demonstrating the
content of any text message she sent to or received from defendants in
December 2015, because she does not have the telephone she was using
at the time, and she did not save the data from that telephone.
Defendants’ records show that they received a text message from
plaintiff’s phone number, which said “Style,” at 1:34:21 P.M. EST. (Dkt.
38 at 2.) The records show that defendants sent a response message back
at 1:34:26 P.M. EST, asking plaintiff to reply “YES” to confirm that she
16
agreed to receive marketing texts via an automated system. (Id.) The
records then state that at 1:34:34 P.M. EST, the word “Yes” was sent from
plaintiff’s phone number to defendants. (Id.) Finally, defendants’ records
show that they sent a message confirming that plaintiff’s phone number
had signed up to receive marketing texts. (Id.) Both sets of records show
that during April 2016, plaintiff received four text messages from
defendants that were not prompted by any additional communication
from plaintiff.
Neither plaintiff nor defendants have demonstrated a reason to
doubt the veracity of either set of records. Plaintiff argues that cellular
service provider records are inherently more accurate than defendants’
marketing communications database, but she offers no reason why that
is so. Further, even if her provider records are likely to be more accurate
than defendants’ records, that likelihood does not actually show that the
content of defendants’ records are inaccurate. A reasonable jury could
determine from these records that plaintiff only sent and received the
first and second text messages, and did not send the third text message
explicitly consenting to receive marketing texts from defendants.
Accordingly, the Court must determine whether a reasonable jury could
17
determine that the first two text messages (“Style” and “reply YES”) did
not constitute prior express written consent within the meaning of the
TCPA.
The TCPA bars any call, including a text message:
[T]hat includes or introduces an advertisement or constitutes
telemarketing, using an automatic telephone dialing system
or an artificial or prerecorded voice, to any of the lines or
telephone numbers described in paragraphs (a)(1)(i) through
(iii) of this section, other than a call made with the prior
express written consent of the called party.
47 C.F.R. § 64.1200(a)(2); see also Keating v. Peterson’s Nelnet, LLC, 615
F. App’x 365, 370 (6th Cir. 2015) (noting that the Federal
Communications
Commission
has
determined
that
the
TCPA
encompasses text messages to wireless numbers). Prior express written
consent “means an agreement, in writing, bearing the signature of the
person called that clearly authorizes the seller to deliver or cause to be
delivered to the person called advertisements or telemarketing messages
using an automatic telephone dialing system or an artificial or
prerecorded voice, and the telephone number to which the signatory
authorizes such advertisements or telemarketing messages to be
delivered.” 47 C.F.R. § 64.1200(f)(8).
18
Defendants argue that the promotion on the Abercrombie Kids
website disclosed that plaintiff’s initial text of the keyword “Style” would
constitute consent to receive up to ten marketing text messages per
month.
(Dkt. 37 at 28-29.)
Under defendants’ theory, plaintiff is
assumed to have read the disclosures on the website and consented to
receive future text messages based on her single text message to
defendants.
The Federal Communications Commission (“FCC”) addressed this
issue in 2015. See In the Matter of Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, 30 F.C.C.R. 7961 (July
10, 2015). In interpreting the TCPA, the FCC found that “a one-time text
message sent immediately after a consumer’s request for the text does
not violate the TCPA and our rules.” Id. at 8015. However, the FCC also
found that when businesses made the “disclosures required by the
Commission's rules concerning prior express written consent for
autodialed or prerecorded telemarketing calls” on a promotional
webpage, a business was permitted to send only “a single on-demand text
in response to a consumer’s request.” Id. at 8016 n.363. “If the business
sends more than a single text as a response to the consumer, however,
19
our rules require prior express written consent with the specified
disclosures.” Id.
It is clear from the FCC’s ruling that a customer who sends a text
message seeking information from a business has asked to receive a
single on-demand text message in response. If the business wishes to
send additional text messages, it is required to provide the necessary
disclosures and receive prior express written consent after the initial
request is sent, and cannot rely on disclosures housed on the promotional
website that prompted the initial request. And because the Court must
defer to a “permissible construction” of a statute by an administrative
agency entrusted with implementing the law so long as it is not
“arbitrary, capricious, or manifestly contrary to the statute,” this ruling
guides the Court’s analysis. Chevron v. Nat. Res. Defense Council, Inc.,
467 U.S. 837, 843-44 (1984).
In the light most favorable to the plaintiff, there is a genuine issue
of material fact as to whether she gave her prior express written consent
in December 2015 to receive text messages in April 2016.
She has
provided evidence that shows she may have only sent and received the
“Style” and “reply YES” text messages in December 2015. Alone, those
20
text messages are insufficient to show that defendants made the
necessary disclosures to plaintiff regarding transmission of future
marketing text messages, or that plaintiff gave her prior express written
consent to receive future marketing text messages from defendants.
Accordingly, summary judgment is denied to defendants on
plaintiff’s TCPA claim.
III. Conclusion
For the reasons set forth above, it is hereby ordered that:
Plaintiff’s motion for reconsideration, to alter or amend the
judgment, and for relief from judgment (Dkt. 57) is GRANTED under
Rule 59(e);
The entry of summary judgment in defendants’ favor (Dkt. 53) is
VACATED; and
This case is REOPENED.
IT IS SO ORDERED.
Dated: March 14, 2018
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 14, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager
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