Margulis v. Surrey Vacation Resorts, Inc.

Filing 74

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment (Doc. No. 64 ) is DENIED. Within seven (7) days of this Order, the parties shall submit a joint proposed schedule for any discovery or briefing with regard to Plaintiffs ability to serve as class representative. Signed by District Judge John A. Ross on 8/4/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MAX MARGULIS, individually and
on behalf of all others similarly situated,
Plaintiff,
vs.
SURREY VACATION RESORTS, INC.,
d/b/a GRAND CROWNE RESORTS,
Defendant.

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Case No. 4:14-cv-01131-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Summary Judgment. (Doc.
No. 64.) The matter is fully briefed and ready for disposition. For the reasons stated herein, the
motion will be denied.
BACKGROUND
This case is filed pursuant to the Telephone Consumer Protection Act of 1991 (47 U.S.C.
§ 227) (the “TCPA”). Plaintiff alleges that Defendant Surrey Vacation Resorts, Inc., used an
automatic dialer to make a telemarketing call to Plaintiff, without Plaintiff’s prior consent.
Plaintiff recorded the call in question. He seeks statutory damages pursuant to the TCPA. In the
alternative, he claims a violation of the TCPA rooted in negligence. He also asserts counts for
injunctive and declaratory relief.
The evidence,1 construed in Plaintiff’s favor, shows the following. Plaintiff complains
that on June 18, 2013, Defendant, through its agents, called Plaintiff’s cellular telephone number,

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Plaintiff objects that Defendant’s statement of material facts fails to comply with the Court’s
local rules and should be stricken. The Court is satisfied that both parties have presented the
facts in a manner sufficient for the Court to adjudicate the merits of the issues presented.
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314-303-7470, based in St. Louis County, Missouri (the “Surrey call”). During the Surrey call,
an agent for Defendant informed Plaintiff about vacation options in Branson, Missouri, and
ultimately attempted to sell Plaintiff a travel package. Plaintiff expressed some interest in the
information being offered and repeatedly extended the Surrey call by asking questions about the
offered packages. Thus, the Surrey call lasted a total of some fourteen minutes. Toward the end
of the Surrey call, Plaintiff made attempts to find out the name of the company that had placed
the call, and suggested to the agent that he was on a “do-not-call” list. Plaintiff was finally
transferred to a supervisor and demanded that he not be contacted again. Plaintiff recorded the
call in its entirety.
Plaintiff alleges the call was made using an automated telephone dialing system
(“ATDS”), a fact that Plaintiff purportedly deduced from the “significant delay after Plaintiff
answered the call before Defendant’s agent joined the conversation.” (Doc. No. 1 at 1.) In his
deposition, Plaintiff testified that his twenty years of experience with TCPA litigation allowed
him to conclude, based on practice in the industry, that the significant delay at the beginning of
the call was indicative of the use of an ATDS. It is undisputed that Surrey’s telemarketing
dialing system, the Liberation 6000, is capable of predictive dialing. Bradley Dep., Jan. 25,
2016, 57:16-25, 58:1-2.
In a signed affidavit, David Cope, general counsel for Surrey, testified that Surrey
obtained the phone number on which Plaintiff was called from another company, who acquired
Plaintiff’s number from an “in-bound survey”—that is, one wherein the consumer called to
participate in the survey, rather than being called to participate in the survey. (Doc. No. 65-2.)
The subscribing telephone number was identified in Surrey’s files as belonging to a “George
Larson.” Those files, a part of the record before the Court, also indicate that in or around August

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of 2012, a consumer by that name provided consent, via participation in a consumer survey, to be
contacted at the phone number 314-303-7470 regarding the sale and promotion of travel goods
and services.
During the duration of the litigation, Surrey proffered that at some point, the phone
number must have been transferred from George Larson to Plaintiff. At his deposition on
November 11, 2015, however, Plaintiff admitted that he routinely uses the fake name “George
Larson” when engaging in telemarketing surveys and calls.
Although Plaintiff testified that he “had never given permission” to be contacted
(Margulis Dep., November 11, 2015, 19:4), he admitted to filling out certain surveys by phone.
Plaintiff admitted that he did not believe Surrey was the initial entity that contacted him; instead,
he testified that he believed Surrey acquired his information from some unknown third party.
Plaintiff’s deposition testimony was as follows:
Q
[W]ho provided the lead in this case?
A
I forget the name of the company. There was a company
that provided this name and phone number to Surrey. And I
believe from the discovery that I’ve looked over they were not the
ones that took the survey, someone else provided that to them.
Margulis Dep., 31:11-16. Plaintiff further testified:
Q
How do you think that company associated the name
George Larson with your phone number?
A
From the survey call that was made to that cell number.
Q
And did you participate in that survey?
A
Yeah.
Q
And did you give them your – the name George Larson?
A
Yes.
Q
Did you give them your cell phone number?
A
No. They called and had the cell phone number. I don’t
give out my cell phone number except probably to personal
acquaintances and certain attorneys. I don’t even give it to the
attorneys I deal with.
Margulis Dep., 33:2-15.
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Surrey argues that this first, original call made to Plaintiff by the lead-generating
company (the “third-party call”), wherein Plaintiff gave the name George Larson, may have been
in violation of the TCPA—but that the later Surrey call was made with Plaintiff’s consent, which
Plaintiff gave in the third-party call. Surrey also argues that if it had known at the outset of the
litigation that Plaintiff Max Margulis was and is George Larson, it could have quickly moved for
summary judgment based on the dispositive defense that Larson had given permission to Surrey
to contact the phone number in question. Therefore, Surrey asks the Court not only to enter
summary judgment, but to award Surrey its costs, expenses, and attorneys’ fees incurred in
defense of this suit.
LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall
be entered “if the movant shows that there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In passing on a
motion for summary judgment, the Court must review the facts in a light most favorable to the
party opposing the motion, and give that party the benefit of any inference that logically can be
drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The Court is
required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson
Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).
However, “facts must be viewed in the light most favorable to the nonmoving party only
if there is a genuine dispute as to those facts.” Torgerson v. City of Rochester, 643 F.3d 1031,
1042 (8th Cir. 2011) (en banc) (citation omitted). To survive a motion for summary judgment, a
plaintiff must support his/her allegations with sufficient probative evidence to permit a finding in
the plaintiff’s favor based upon more than mere speculation, conjecture, or fantasy. Putnam v.

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Unity Health Sys., Inc., 348 F.3d 732, 733–34 (8th Cir. 2003). “Mere allegations, unsupported
by specific facts or evidence beyond the nonmoving party’s own conclusions, are insufficient to
withstand a motion for summary judgment.” Thomas v. Corwin, 483 F.3d 516, 526–27 (8th Cir.
2007). “Simply referencing the complaint, or alleging that a fact is otherwise, is insufficient to
show there is a genuine issue for trial.” Kountze ex rel. v. Hitchcock Foundation v. Gaines, 2008
WL 2609197, at *3 (8th Cir. 2008). “‘Only disputes over the facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary judgment.’”
Bass v. SBC Commc’ns, Inc., 418 F.3d 870, 872–73 (8th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Thus, Plaintiff, even though the non-moving party for summary-judgment purposes,
“must still ‘present [ ] evidence sufficiently supporting the disputed material facts [such] that a
reasonable jury could return a verdict in [his] favor.’” Pope v. ESA Servs,, Inc., 406 F.3d 1001–
1003–04 (8th Cir. 2005) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.
1992)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat
a motion for summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson, 477 U.S. at 247–48.
DISCUSSION
Plaintiff’s Individual Claim
Under the TCPA, it is unlawful to initiate any telephone call to any to any telephone
number assigned to a cellular telephone service, using an artificial or prerecorded voice to
deliver a message without the prior express consent2 of the called party, unless the call is

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In 2012, the FCC issued a new rule requiring businesses to obtain “prior express written
consent” before placing telemarketing calls. 47 C.F.R. § 64.1200 (a)(3). This 2012 FCC Order
took effect on October 16, 2013. See Soular v. N. Tier Energy LP, No. 15-CV-556-SRN/LIB,
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initiated for emergency purposes or is exempted by the Federal Communications Commission
(“FCC”). 47 U.S.C. § 227(b)(1)(A)(iii). There is no violation of the TCPA if the called party
provided his or her express consent to receive calls on his or her cellular phone. Id. The FCC
has clarified what constitutes “express consent” under the TCPA pursuant to its authority to
create rules and regulations implementing the TCPA. See 47 U.S.C. § 227(b)(2). The FCC has
explained:
[P]ersons who knowingly release their phone numbers have in
effect given their invitation or permission to be called at the
number which they have given, absent instructions to the contrary.
Hence, telemarketers will not violate our rules by calling a number
which was provided as one at which the called party wishes to be
reached.
In re Rules & Regs. Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C.R.
8752, 8769 ¶ 31 (Oct. 16, 1992). Thus, a telemarketer does not violate the TCPA “by calling a
number which was provided as one at which the called party wishes to be reached.” Id. Express
consent is not an element of a TCPA plaintiff’s prima facie case, but rather is an affirmative
defense for which a defendant bears the burden of proof. See, e.g., Elkins v. Medco Health
Sols., Inc., No. 4:12CV2141 TIA, 2014 WL 1663406, at *6 (E.D. Mo. Apr. 25, 2014).
The Court acknowledges that Defendant has offered evidence that Surrey, or the
company from which Surrey obtained Plaintiff’s number, obtained Plaintiff’s consent to contact
him. This evidence includes the business records submitted by Defendant, along with David
Cope’s supporting affidavit. However, this evidence is not uncontroverted, but rather is refuted
by other evidence of record. Defendant’s evidence is also subject to inferences in order to
support Defendant’s proffered conclusion that Plaintiff provided consent to be contacted, which

2015 WL 5024786, at *7 (D. Minn. Aug. 25, 2015). Because the alleged call in the instant
matter occurred in June of 2013, the new rule is not at issue.
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are not drawn in the movant’s favor at the summary judgment phase. Therefore, Defendants
have not proven, as a matter of law, that Plaintiff consented to the telephone call he received, and
the motion for summary judgment will be properly denied.
Plaintiff has undermined the validity of the Cope affidavit by arguing that it was not
made on personal knowledge, and directs the Court to Federal Rule 56(c)(4) (“[a]n affidavit or
declaration used to support or oppose a motion must be made on personal knowledge.”). The
Court does not doubt that Mr. Cope, in his role as a high-level Surrey employee, has the personal
knowledge necessary to interpret records kept by Surrey in the ordinary course of business.
However, the evidence before the Court suggests that, if Plaintiff ever gave consent to be
contacted, he did not give it to Surrey itself but to the third-party, lead-generating entity. The
Court cannot infer that David Cope, as a Surrey employee, is also enabled to interpret the
business records of the lead-generating company.
Even if the Court did consider Cope’s testimony authoritative, it does not establish, as an
uncontroverted matter of fact, that Plaintiff actually offered his consent to be contacted. For
example, the record suggests that Surrey purchased the “lead” information, which included
Plaintiff’s number, from a certain broker, Mark McLean, and a firm by the name of Market
Approach. Cope testified that Plaintiff expressly consented to receiving telemarketing calls
when he was contacted by the lead generator. But elsewhere in Cope’s deposition, he interprets
communications from McLean and Market Approach as indicating that, while the firm did
provide some “opt-in” telephone numbers, Plaintiff’s was not an “opt-in” number. Cope Dep.,
October 15, 2015, 44:12-20. Also problematic is Cope’s admission that testimony about the
source of Plaintiff’s number is “all speculation. I’m going on what I was told by Mr. McLean.”
Cope Dep., 35:7-8.

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At least some additional objective evidence controverts the purported fact that Plaintiff
supplied his consent to the lead-generating entity. For example, e-mail messages in the record
suggest that Jordan Karlick, a representative of the original lead generator from which Market
Approach may have obtained the number, could not provide solid testimony that the number was
obtained by consent. Instead, Karlick affirmatively declined to sign an affidavit saying as much.
(Doc. No. 71-13.)
Finally, Plaintiff’s own testimony suggests that Plaintiff may not have given his phone
number to Surrey, and therefore did not consent to Surrey’s telemarketing call. Margulis Dep.,
33:11-15. In Defendant’s deposition of Plaintiff, Plaintiff testified to the following:
Q: Did you give them your cell phone number?
A: No. They called and had the cell phone number. I don’t give out
my cell phone number except probably to personal acquaintances
and certain attorneys. I don’t even give it to all the attorneys I deal
with.
Q: And at the time you participated in the survey was there any
sort of question asked of you as to press a certain button to receive
communications from that company or from Surrey?
A: No. Surrey wasn’t even mentioned in the survey.
Id. Even if this testimony is considered self-serving and given minimal weight, it is nonetheless
evidence of record that creates a factual issue, improper for resolution on summary judgment.
Because Defendant cannot prove as a matter of law that the original third party call resulted in
Plaintiff’s express consent to be contacted again, it cannot prove that the Surrey call was made
with consent. Again, the Court construes the record in favor of the nonmoving party; on the
record before the Court, Defendant has failed to supply uncontroverted evidence to show it obtained
prior express consent.

Defendant has also failed to introduce uncontroverted evidence that it did not use an
ATDS. Plaintiff’s own sworn testimony provides some evidence—however tenuous—that an
ATDS was used. Moreover, Surrey’s corporate representative does not testify definitively that
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no ATDS was utilized during the call campaign that included Plaintiff’s number; instead, he
concedes that the dialing unit had the capability to perform autodialing (Bradley Dep., 57:16-25,
58:1-2), and while he believed the unit was used in one of two ways that required human
intervention, he did not specifically remember what method was used to place any calls to
Plaintiff’s number (Bradley Dep., 109:10-12.). Based on this vague, inconclusive testimony, the
Court cannot find, as a matter of law, that no reasonable juror might conclude that an ATDS was
used. “Because there is a genuine issue of material fact as to whether” Defendant used an ATDS,
Defendant’s motion for summary judgment must be denied.”

See Ploch v. FirstSource

Advantage LLC, No. 4:12-CV-310-JAR, 2012 WL 5384876, at *5 (E.D. Mo. Nov. 1, 2012).
In sum, Plaintiff has introduced facts sufficient to support a reasonable finding that he did not
consent to Surrey’s call, and that the call was made using an ATDS. Defendant repeatedly invokes
Plaintiff’s use of a false name as purported evidence of bad faith, and even suggests that Plaintiff’s
use of the name George Larson in a previous communication with Defendant summarily proves that
Plaintiff, speaking as George Larson, provided consent to be contacted at the number in question.
But the Court does not, at the summary judgment phase, ignore evidence of record simply because
Plaintiff utilized a false name, and neither does it infer that Plaintiff must have provided consent
under that false name. Those inferences may be drawn by a jury—but they cannot be adopted by the
Court at the summary judgment phase, particularly when competing evidence exists in the record.
Thus, making all justifiable inferences in favor of the nonmoving party, the Court concludes that
summary adjudication is not appropriate.
Plaintiff’s Class Claims
Although the Court will deny Defendant’s motion for summary judgment on Plaintiff’s
individual claim, the Court finds that these factual disputes raise serious questions regarding the
named Plaintiff’s ability to serve as a class representative. The Court will allow the parties to submit

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briefing on whether the class proposed by Plaintiff can be properly certified, and whether Plaintiff is
positioned to serve as a class representative. The findings herein suggest that Plaintiff may not be
well-positioned to serve as class representative in light of the presumably unique issues and defenses
that could exist with regard to Plaintiff’s claims.

CONCLUSION
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (Doc. No.
64) is DENIED. Within seven (7) days of this Order, the parties shall submit a joint proposed
schedule for any discovery or briefing with regard to Plaintiff’s ability to serve as class
representative.

Dated this 4th day of August, 2016.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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