Bates et al v. Dollar Loan Center, LLC et al
Filing
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ORDER that 20 Motion for Summary Judgment is DENIED without prejudice. Cash 1's Motion to Dismiss 18 is HEREBY GRANTED in part only as to Cash 1 and DENIED in part. Signed by Judge Kent J. Dawson on 1/7/14. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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PASQUAIL BATES, et al.,
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Plaintiffs,
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v.
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Case No. 2:13-CV-1731-KJD-CWH
DOLLAR LOAN CENTER, LLC, et al.,
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ORDER
Defendants.
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Before the Court is Defendant Cash 1's (“Cash 1”) Motion to Dismiss (#18). Plaintiff Sharon
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Pratt (“Pratt”) opposed (#35) and Cash 1 replied (#41). The motion (#18) was joined by Defendants
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Check City Partnership, LLC; Clark County Collection Service, LLC; DLC Empire, LLC; Dollar
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Loan Center, LLC (#26). The motion (#18) was also joined by Tosh, Inc., (#27) and CCI Financial
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Inc., (#28). The reply (#41) was joined by Defendants Dollar Loan Center, LLC; DLC Empire, LLC;
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Clark County Collection Service, LLC; Check City Partnership, LLC; Tosh, Inc.,; and CCI Financial,
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Inc. (#50).
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Also before the Court is Cash 1’s Motion for Summary Judgment (#20), which Pratt opposed
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(#35), to which Cash replied (#41). The motion (#20) was joined by Defendants Check City
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Partnership, LLC; Clark County Collection Service, LLC; DLC Empire, LLC; Dollar Loan Center,
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LLC (#26). The motion (#20) was also joined by Tosh, Inc., (#27) and CCI Financial, Inc., (#28).
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The reply (#42) was joined by Defendants Dollar Loan Center, LLC; DLC Empire, LLC; Clark
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County Collection Service, LLC; Check City Partnership, LLC; Tosh, Inc.,; and CCI Financial, Inc.
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(#50).1
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I. Background
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This is a class action complaint. Defendants are “all involved in the business of high-interest,
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short-term loans (i.e. ‘payday loans’).” (#1; 2:24-25). Further, it is asserted that these businesses
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collect “references” from borrowers under false pretenses, ultimately using these contacts primarily
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in collection efforts. Id. at 14-15. Plaintiffs are those named as “references” and subsequently
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contacted in the collection process. Plaintiffs assert that Defendants have violated the Telephone
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Consumer Protection Act (“TCPA”). Id. at 2:19-23.
Plaintiff Sharon Pratt is the putative class representative, and the sole representative with
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claims against Cash 1.
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II. Legal Standard
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Despite initially making both a motion to dismiss and a motion for summary judgment, Cash
1 concedes that this matter is before the Court on motion for summary judgment. (#41; 2-3).
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Summary judgment may be granted if the pleadings, depositions, answers to interrogatories,
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and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
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material fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ.
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P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, summary judgment
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is appropriate only “after adequate time for discovery.” Celotex, 477 U.S. at 322. The moving party
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bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex, 477
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U.S. at 323. The burden then shifts to the nonmoving party to set forth specific facts demonstrating a
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genuine factual issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
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587 (1986); Fed. R. Civ. P. 56(e).
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The Court notes that while docketed separately, motions #18 and #20 are identical. This holds true for replies
#41 and #42 also.
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All justifiable inferences must be viewed in the light must favorable to the nonmoving party.
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See Matsushita, 475 U.S. at 587. However, the nonmoving party may not rest upon the mere
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allegations or denials of his or her pleadings, but he or she must produce specific facts, by affidavit
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or other evidentiary materials provided by Rule 56(e), showing there is a genuine issue for trial. See
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve factual
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issues of controversy in favor of the non-moving party where the facts specifically averred by that
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party contradict facts specifically averred by the movant. See Lujan v. Nat’l Wildlife Fed’n., 497
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U.S. 871, 888 (1990); see also Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345
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(9th Cir. 1995) (stating that conclusory or speculative testimony is insufficient to raise a genuine
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issue of fact to defeat summary judgment). “[U]ncorroborated and self-serving testimony,” without
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more, will not create a “genuine issue” of material fact precluding summary judgment. Villiarimo v.
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Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).
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Summary judgment shall be entered “against a party who fails to make a showing sufficient
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to establish the existence of an element essential to that party’s case, and on which that party will
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bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Summary judgment shall not be granted
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if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248.
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However, [i]f the evidence is merely colorable, or is not significantly probative, summary judgment
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may be granted.” Id. (internal citations omitted).
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III. Analysis
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Plaintiffs’ claims against Cash 1 can be divided into two general categories: 1) violation of
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the Telephone Consumer Protection Act (“TCPA”), 2) violation of the Deceptive Trade Practices Act
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(“DTPA”).
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A. Telephone Consumer Protection Act
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The Telephone Consumer Protection Act (“TCPA”) in part restricts the use of automated
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telephone equipment. 47 U.S.C. § 227. Relevant to this matter:
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It shall be unlawful for any person within the United States . . . to make any call (other
than a call made for emergency purposes or made with the prior express consent of
the called party) using any automatic telephone dialing system . . . to any telephone
number assigned to a . . . cellular telephone service . . . or any service for which the
called party is charged for the call;
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Id. at § 227(b)(1).
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Plaintiff argues that Cash 1 used an automatic telephone dialing system (“ATDS”) to contact
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Plaintiff, either using the automatic function or by manually dialing Pratt. Cash 1 has filed an
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affidavit asserting that it is Cash 1’s business practice and official policy to use an ATDS only to
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contact borrowers and never to contact third parties. (#18, Ex. B). Cash 1 further avers that neither it
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nor its agents contacted Pratt at the number provided on the loan application after the initial
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verification of the number at loan origination. (#18, Ex. B). Cash 1 has also filed an affidavit
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clarifying that while is uses an ATDS in its business, it uses an entirely different phone system to
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manually dial references for application verification purposes. (#41, Ex. A). Cash 1 has also provided
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a report reflecting no autodialed calls made to the number provided for Pratt, and verified this report
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by affidavit. (#18, Ex. B, Ex. C). However, while heavily implied, Cash 1 fails to provide any
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admissible statement that the system used to manually dial Pratt’s number lacks the capacities which
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define an ATDS. Accordingly, the Court cannot find that no genuine dispute exists regarding this
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material fact.
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B. The Deceptive Trade Practices Act
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In relevant part, the Deceptive Trade Practices Act (“DTPA”) defines a deceptive trade
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practice as knowingly making any false representation in a transaction. N.R.S. 598.0915(15). The
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DTPA prohibits a person in the course of their business from knowingly failing to disclose a material
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fact in connection with the sale or lease of goods or services. N.R.S. 598.0923(2). It also prohibits
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that same person from violating a state or federal statute or regulation relating to the sale or lease of
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goods or services. N.R.S. 598.0923(3).
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Plaintiff concedes that Cash 1 has not violated N.R.S. 598.0915(15) or N.R.S. 598.0923(2).
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Plaintiff maintains, however, that Cash 1 violated N.R.S. 598.0923(3) to the extent it violated the
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TCPA which was analyzed above. Accordingly, summary judgment on this ground is similarly
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premature.
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Further, as summary judgment has been denied, the Court need not and will not address
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Pratt’s argument under Rule 56(d) for additional discovery.
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IV. Conclusion
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Defendant Cash 1 has not met its burden of demonstrating that no genuine issue of material
fact exists in this case. Accordingly, Cash 1’s Motion for Summary Judgment (#20) is HEREBY
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DENIED without prejudice. However, as Pratt has conceded that Cash 1 did not violate N.R.S.
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598.0915(15) or N.R.S. 598.0923(2), Cash 1’s Motion to Dismiss (#18) is HEREBY GRANTED in
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part only as to Cash 1 and DENIED in part, consistent with the above analysis.
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Additionally, the Court admonishes the parties against serial joinder in motion practice. All
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joining Defendants lacked critical evidence which Cash 1 had provided, making analysis of their
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claims substantively different from Cash 1's. Such one-size-fits-all representation is inappropriate
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and fails to provide the relevant points required under Local Rule 7-2.
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DATED this 7th day of January 2014.
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_____________________________
Kent J. Dawson
United States District Judge
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