Self-Forbes v. Advanced Call Center Technologies, LLC

Filing 31

ORDER. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that 9 defendant's motion for summary judgment be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that 17 plaintiff's motion for summary judgment be, and the same hereby is, DENIED as moot. IT IS FURTHER ORDERED that 29 defendant's motion for reconsideration be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that 28 the magistrate judge's order be, and the same hereby is, AFFIRMED IN PART and REVERSED IN PART. The clerk shall enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 4/12/17. (Copies have been distributed pursuant to the NEF - ADR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 KARMEN SELF-FORBES, Case No. 2:16-CV-1088 JCM (PAL) 8 Plaintiff(s), 9 10 11 ORDER v. ADVANCED CALL CENTER TECHNOLOGIES, LLC, Defendant(s). 12 13 Presently before the court is defendant Advanced Call Center Technologies, LLC’s motion 14 15 16 for summary judgment. (ECF No. 9). Plaintiff Karmen Self-Forbes filed a response (ECF No. 12), to which defendant replied (ECF No. 14). Also before the court is plaintiff’s motion for summary judgment. 17 18 Defendant filed a response (ECF No. 19), to which plaintiff replied (ECF No. 22). Also before the court is defendant’s motion for reconsideration. (ECF No. 29). Plaintiff 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge (ECF No. 17). filed a response. (ECF No. 30). I. Facts The instant action involves alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (the “TCPA”). In January 2012, plaintiff applied for a GE Money Bank QVC credit card account, which GE Money Bank d/b/a Synchrony Bank approved. Thereafter, plaintiff allegedly defaulted on her credit card payments. (ECF No. 9). On January 3, 2013, GE Money Bank assigned plaintiff’s account to defendant to attempt to collect the unpaid balance. (ECF No. 9). Between January 3 1 and April 26, 2013, defendant placed 530 calls to plaintiff’s cellular phone number. (ECF Nos. 9, 2 17). 3 Plaintiff asserts that defendant knowingly, and or willfully, placed automated calls to her 4 cell phone without her consent in violation of the TCPA. (ECF No. 1). According to the 5 complaint, plaintiff received over 100 calls from defendant from the phone number (866)-445- 6 6548 within four years prior to filing the underlying complaint. (ECF No. 1 at 4). Plaintiff alleges 7 that defendant employs an Automatic Telephone Dialing System (“ATDS”) as defined by 47 8 U.S.C. § 227(a)(1). (ECF No. 1). Plaintiff further alleges that defendant or its agent(s) contacted 9 plaintiff on her cell phone via an ATDS in violation of 47 U.S.C. § 227(b)(1)(A). (ECF No. 1). 10 Plaintiff asserts that she instructed defendant or its agent(s) not to call her cell phone, revoking 11 consent. (ECF No. 1). 12 On May 16, 2016, plaintiff filed the underlying complaint alleging two claims for relief: 13 (1) negligent violations of the TCPA; and (2) knowing and/or willful violations of the TCPA. 14 (ECF No. 1). Plaintiff seeks statutory damages of $500.00 and treble damages of up to $1,500.00 15 for each and every call violation. (ECF No. 1). 16 On December 27, 2016, plaintiff moved to strike exhibits 1 and 2 to defendant’s motion 17 for summary judgment (ECF No. 9) and exhibit 1 to defendant’s reply in support of its motion for 18 summary judgment (ECF No. 14). (ECF No. 16). Exhibit 1 is the QVC account record of 19 plaintiff’s credit card application (the “application”), and exhibit 2 is a copy of the QVC card 20 member agreement (the “agreement”). (ECF No. 9, exhs. 1, 2). On February 6, 2017, defendant 21 moved to reopen discovery for the limited purpose of authenticating exhibits 1 and 2 to its motion 22 for summary judgment. (ECF No. 23). 23 On March 16, 2017, the magistrate judge granted in part plaintiff’s motion to strike as to 24 exhibits 1 and 2 to defendant’s motion for summary judgment. (ECF No. 28). Finding that “Orr 25 [v. Bank of Am., NT & SA, 285 F.3d 764 (9th Cir. 2002)] is the controlling precedent in this 26 circuit[,]” the magistrate judge struck exhibits 1 and 2, concluding that defendant’s motion for 27 summary judgment failed to lay a foundation for the authenticity of these exhibits. (ECF No. 28). 28 In that same order, the magistrate judge denied defendant’s motion to reopen discovery as untimely James C. Mahan U.S. District Judge -2- 1 and found that defendant failed to show good cause or excusable neglect for failure to timely file 2 the motion. (ECF No. 28 at 15). 3 In the instant motions, defendant moves for summary judgment in its favor and for 4 reconsideration of the magistrate judge’s March 16th order (ECF Nos. 9, 29), and plaintiff moves 5 for summary judgment in her favor (ECF No. 17). The court will address each as it sees fit. 6 II. Legal Standard 7 The Federal Rules of Civil Procedure allow summary judgment when the pleadings, 8 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 9 show that “there is no genuine dispute as to any material fact and the movant is entitled to a 10 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is 11 “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 12 323–24 (1986). 13 For purposes of summary judgment, disputed factual issues should be construed in favor 14 of the non-moving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be 15 entitled to a denial of summary judgment, the nonmoving party must “set forth specific facts 16 showing that there is a genuine issue for trial.” Id. 17 In determining summary judgment, a court applies a burden-shifting analysis. The moving 18 party must first satisfy its initial burden. “When the party moving for summary judgment would 19 bear the burden of proof at trial, it must come forward with evidence which would entitle it to a 20 directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has 21 the initial burden of establishing the absence of a genuine issue of fact on each issue material to 22 its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) 23 (citations omitted). 24 By contrast, when the nonmoving party bears the burden of proving the claim or defense, 25 the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential 26 element of the non-moving party’s case; or (2) by demonstrating that the nonmoving party failed 27 to make a showing sufficient to establish an element essential to that party’s case on which that 28 party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving James C. Mahan U.S. District Judge -3- 1 party fails to meet its initial burden, summary judgment must be denied and the court need not 2 consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159– 3 60 (1970). 4 If the moving party satisfies its initial burden, the burden then shifts to the opposing party 5 to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith 6 Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the 7 opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient 8 that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 9 versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 10 631 (9th Cir. 1987). 11 In other words, the nonmoving party cannot avoid summary judgment by relying solely on 12 conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 13 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the 14 pleadings and set forth specific facts by producing competent evidence that shows a genuine issue 15 for trial. See Celotex, 477 U.S. at 324. 16 At summary judgment, a court’s function is not to weigh the evidence and determine the 17 truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, 18 Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all 19 justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the 20 nonmoving party is merely colorable or is not significantly probative, summary judgment may be 21 granted. See id. at 249–50. 22 III. Discussion 23 A. Motion for Reconsideration (ECF No. 29) 24 “A district judge may reconsider any pretrial matter referred to a magistrate judge in a civil 25 or criminal case under LR IB 1-3, when it has been shown the magistrate judge’s order is clearly 26 erroneous or contrary to law.” LR IB 3-1(a). The district judge may affirm, reverse, or modify, 27 in whole or in part, the magistrate judge’s order, as well as remand with instructions. LR IB 3- 28 1(b). James C. Mahan U.S. District Judge -4- 1 In the motion to strike, plaintiff asserts that the motion is brought pursuant to Pfingston v. 2 Ronan Eng’g Co., 284 F.3d 999, 1003 (9th Cir. 2002), which provides that to preserve evidentiary 3 objections, a party must either move to strike or otherwise lodge an objection with the court. (ECF 4 No. 16 at 3). Pfingston, however, is distinguishable as it involved preserving a hearsay objection 5 as to a summary judgment affidavit that was made pursuant to the pre-2010 amendment version 6 of Rule 56(e). 284 F.3d at 1003. 7 The pre-2010 amendment version of Rule 56(e) stated that summary judgment affidavits 8 “shall set forth such facts as would be admissible in evidence.” See id.; cf. Fed. R. Civ. P. 56(c)(4) 9 (eff. Dec. 1, 2010) (“An affidavit or declaration used to support or oppose a motion must be made 10 on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant 11 or declarant is competent to testify on the matters stated.”). Here, the pre-2010 amendment version 12 of Rule 56 is inapplicable to the instant case. 13 Plaintiff also cites Rule 56(c)(2) for the basis of her motion to strike. (ECF No. 16 at 3). 14 Rule 56(c)(2) provides that “[a] party may object that the material cited to support or dispute a fact 15 cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2); see 16 generally Fed. R. Civ. P. 56(c)(4) committee note (2010 Amendment) (“There is no need to make 17 a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the 18 summary-judgment stage does not forfeit the right to challenge admissibility at trial.”). Plaintiff, 19 however, does not argue that the information contained in the application and the agreement cannot 20 be presented in an admissible form. Rather, plaintiff contends that the exhibits in their current 21 form are inadmissible because defendant failed to authenticate the exhibits and authentication is a 22 condition precedent to admissibility. 23 Plaintiff focuses on the wrong point. “At the summary judgment stage, we do not focus 24 on the admissibility of the evidence’s form. We instead focus on the admissibility of its contents.” 25 Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Plaintiff’s contention is unavailing as it 26 focuses on the admissibility of the evidence’s form (i.e., the application and the agreement) rather 27 than the admissibility of its contents (i.e., consent). 28 James C. Mahan U.S. District Judge -5- 1 Defendant cites to the application and agreement to support its assertion that plaintiff 2 provided her cellular phone number to Synchrony as part of her application and consented to 3 Synchrony and other parties using her number to review and collect on the account. (ECF No. 9 4 at 5). In its response to plaintiff’s motion to strike, defendant asserts that it could provide the 5 underlying evidence in admissible form at trial because the application (exhibit 1) and the 6 agreement (exhibit 2) fall within the business record exception set forth in Federal Rule of 7 Evidence (“FRE”) 803(6), as well as the residual exception set forth in FRE 807. (ECF No. 18). 8 9 10 11 12 FRE 803(6) provides an exception to the rule against hearsay for records of a regularly conducted activity. FRE 803(6) provides as follows: A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by—or from information transmitted by—someone with knowledge; 13 (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; 14 (C) making the record was a regular practice of that activity; 15 (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and 16 17 18 (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. Fed. R. Evid. 803(6). 19 Defendant asserts that its witness Marc Keller, the person most knowledgeable on its 20 behalf, is a “qualified witness” within the meaning of FRE 803(6)(D) and is therefore qualified to 21 testify that the exhibits are business records under FRE 803(6). (ECF No. 18). In particular, 22 defendant asserts that Keller offered extensive deposition testimony regarding Synchrony’s 23 account application and delinquent account placement process and attached the relevant portions 24 of such testimony. (ECF No. 18 at 4, exh. 1). 25 Plaintiff disputes that Keller is a qualified witness under FRE 803(6) and argues that Keller 26 cannot authenticate the application because he did not participate in determining the veracity of 27 the information contained therein. (ECF No. 16 at 10–12). Plaintiff further argues that the 28 information in the agreement cannot be authenticated as truthful because defendant did not James C. Mahan U.S. District Judge -6- 1 generate the agreement and the agreement is not one of defendant’s business records. (ECF No. 2 16 at 10–12). Plaintiff maintains that defendant failed to obtain declarations or any testimony from 3 QVC or Synchrony evidencing that the exhibits are what they purport to be. (ECF No. 16). The 4 court disagrees. 5 Plaintiff’s argument is unconvincing as it assumes that only the testimony or certification 6 of a custodian of records from Synchrony can show that the records comply with FRE 803(6)’s 7 requirements. However, “[a] witness does not have to be the custodian of documents offered into 8 evidence to establish Rule 803(6)’s foundational requirements.” United States v. Childs, 5 F.3d 9 1328, 1334 (9th Cir. 1993) (citing United States v. Ray, 930 F.2d 1368, 1370 (9th Cir. 1991)). 10 “The phrase ‘other qualified witness’ is broadly interpreted to require only that the witness 11 understand the record-keeping system.” Id. (quoting Ray, 930 F.2d at 1370). Plaintiff does not 12 dispute Keller’s understanding of Synchrony’s record-keeping system. Nor does plaintiff show, 13 or set forth any facts to support, that circumstances indicating a lack of trustworthiness exist. 14 Plaintiff further contends that the application and the agreement must be stricken as 15 unreliable and inadmissible hearsay because defendant failed to properly authenticate these 16 exhibits. (ECF No. 16). Citing to Orr, plaintiff argues that authentication is a condition precedent 17 to admissibility and that unauthenticated documents may not be considered in a motion for 18 summary judgment. (ECF No. 16). 19 “To satisfy the requirement of authenticating or identifying an item of evidence, the 20 proponent must produce evidence sufficient to support a finding that the item is what the proponent 21 claims it is.” Fed. R. Evid. 901(a). “[A]n inquiry into authenticity concerns the genuineness of an 22 item of evidence, not its admissibility.” 23 (“Authentication is a special aspect of relevancy concerned with establishing the genuineness of 24 evidence.” (citing Fed. R. Evid. 901(a) advisory committee’s note)). Orr, 285 F.3d at 776; see also id. at 784 n.7 25 Defendant has provided deposition testimony of Keller, wherein Keller identified the 26 application and the agreement as what defendant claims they are. Plaintiff does not question the 27 genuineness of the application or the agreement or the contents therein. Nor does plaintiff show 28 that the source of information or the circumstances of preparation indicate a lack of James C. Mahan U.S. District Judge -7- 1 trustworthiness. Instead, plaintiff merely presumes without adequate support that circumstances 2 indicating a lack of trustworthiness exist and argues that defendant failed to prove that the exhibits 3 are trustworthy. 4 Further, as defendant points out, the legal arguments set forth in plaintiff’s motion to strike 5 erroneously relied on cases predating the 2010 amendments to Rule 56. (ECF No. 18). The version 6 of Rule 56(c)(1) currently in effect provides that “[a] party asserting that a fact cannot be or is 7 genuinely disputed must support the assertion by” either: 8 9 10 11 12 13 (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). Defendant has supported its assertion by citing to Keller’s deposition testimony, providing the application and the agreement, and showing that the evidence’s content 14 may be admitted into evidence at trial. Thus, because plaintiff has failed to show otherwise, 15 16 17 18 19 defendant has sufficiently met its burden so as to withstand plaintiff’s motion to strike. In light of the foregoing, the court will grant defendant’s motion for reconsideration and will reverse the magistrate judge’s order (ECF No. 28) to the extent that it struck exhibits 1 and 2 to defendant’s motion for summary judgment. B. Defendant’s Motion for Summary Judgment (ECF No. 9) 20 Plaintiff asserts that between January 3 and April 26, 2013, defendant knowingly, and or 21 willfully, placed 530 automated calls to her cell phone without her consent in violation of the 22 TCPA. (ECF Nos. 1, 12, 17). 23 Defendant argues that summary judgment in its favor is proper because plaintiff gave prior 24 consent to being called. (ECF No. 9). In particular, defendant asserts that plaintiff provided her 25 cellular phone number to GE as part of her credit card application, wherein she consented to GE 26 or other proper parties using her number. (ECF No. 9 at 4–5). Defendant further contends that 27 plaintiff’s assertion that she revoked consent is unsupported by evidence. (ECF No. 9 at 5). 28 Defendant asserts that its account activity logs establish that defendant never made contact with James C. Mahan U.S. District Judge -8- 1 plaintiff or any live person during any of its five hundred plus calls and that defendant received no 2 written or verbal communication from plaintiff prior to service of the complaint. (ECF No. 9 at 3 5). 4 In response, plaintiff contends that defendant’s motion is premature and baseless because 5 it relies solely on an affidavit devoid of detail. (ECF No. 12). Plaintiff asserts that around January 6 3, 2013, defendant began calling plaintiff’s cell phone regarding the collection of an alleged debt 7 and that these calls continued over the next four months. (ECF No. 12 at 2–3). Plaintiff alleges 8 that she told defendant’s representative that she wanted defendant to stop calling her number, 9 thereby revoking any previously obtained consent. (ECF No. 12 at 3). 10 The TCPA prohibits any call using automatic telephone dialing system or an artificial or 11 prerecorded voice to a telephone without prior express consent by the person being called, unless 12 the call is for emergency purposes. See 47 U.S.C. § 227(b)(l)(A)(iii); Satterfield v. Simon & 13 Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009) (“The TCPA makes it unlawful “to make any 14 call” using an ATDS.”). “The purpose and history of the TCPA indicate that Congress was trying 15 to prohibit the use of ATDSs to communicate with others by telephone in a manner that would be 16 an invasion of privacy.” Satterfield, 569 F.3d at 952. The TCPA authorizes a court, in its 17 discretion, to treble the amount of statutory damages—increasing the penalties up to threefold—if 18 the court finds that the defendant “willfully or knowingly” violated the law. See 47 U.S.C. § 19 227(b)(3).1 20 1 21 22 23 24 Specifically, 47 U.S.C. § 227(b)(3) provides as follows: (3) Private right of action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State— (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, 25 (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or 26 (C) both such actions. 27 28 James C. Mahan U.S. District Judge If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph. -9- 1 The Ninth Circuit has set forth three elements for a TCPA violation: (1) the defendant 2 called a cellular telephone number; (2) using an automatic telephone dialing system or an artificial 3 or prerecorded voice; (3) without the recipient’s prior express consent.” See, e.g., Meyer v. 4 Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012); Kristensen v. Credit 5 Payment Servs., 12 F. Supp. 3d 1292, 1300 (D. Nev. 2014). “Express consent is ‘[c]onsent that is 6 clearly and unmistakably stated.’” Satterfield, 569 F.3d at 955 (quoting Black’s Law Dictionary 7 323 (8th ed.2004)) (alteration in original). 8 The parties do not dispute that defendant used an ATDS to call plaintiff’s cellular phone 9 number. Plaintiff does not dispute that she applied for a QVC credit card and agreed to the terms 10 and conditions of that credit card. Rather, plaintiff argues that she later revoked consent. 11 “Express consent is not an element of a plaintiff's prima facie case but is an affirmative 12 defense for which the defendant bears the burden of proof.” Van Patten v. Vertical Fitness Grp., 13 LLC, 847 F.3d 1037, 1044 (9th Cir. 2017). The TCPA does not explicitly grant consumers the 14 right to revoke their prior express consent. Id. at 1047 (citing 47 U.S.C. § 227). However, the 15 Ninth Circuit has held that consumers may revoke their prior express consent without temporal 16 limitations. Id. at 1048. “Revocation of consent must be clearly made and express a desire not to 17 be called or texted.” Id. 18 Defendant asserts that it received no written or verbal communication from plaintiff prior 19 to service of the complaint. (ECF No. 9 at 5). In support, defendant attaches an account activity 20 log to defendant’s motion for summary judgment. (ECF No. 9, exh. 4). Defendant argues that the 21 activity logs establish that in the 500 plus calls it made through its ATDS to plaintiff’s cellular 22 phone number, none resulted in direct contact with plaintiff. (ECF No. 9, exh. 4). 23 In response, plaintiff asserts that the few times she did pick up defendant’s calls, she 24 requested and spoke with a representative and told defendant stop calling her, thereby revoking 25 prior consent, if any. (ECF No. 12 at 3). In support, plaintiff attaches her affidavit attesting to that 26 effect. (ECF No. 12, exh. 2). 27 28 47 U.S.C. § 227(b)(3). James C. Mahan U.S. District Judge - 10 - 1 However, plaintiff cannot avoid summary judgment by relying on conclusory allegations 2 unsupported by factual data. See Taylor, 880 F.2d at 1045. Despite having the opportunity to 3 review defendant’s activity log and all the dates and times of the calls, plaintiff does not dispute 4 the accuracy of the activity log. (ECF No. 12). Nor has plaintiff specified a particular date on 5 which she spoke with defendant’s representatives or the name of one of those representatives. 6 Rather, plaintiff merely asserts that she spoke with a representative several times in January and 7 revoked consent. While plaintiff provides her affidavit in support, the affidavit merely restates the 8 allegations set forth in the complaint and does not set forth specific facts sufficient to raise a 9 genuine issue for trial. See Nilsson v. City of Mesa, 503 F.3d 947, 952 n.2 (9th Cir. 2007) 10 (explaining that a “conclusory, self-serving affidavit, lacking detailed facts and any supporting 11 evidence, is insufficient to create a genuine issue of material fact”) (internal quotation marks and 12 citation omitted). 13 In light of the foregoing, the court finds that defendant has met its initial burden of showing 14 that plaintiff gave prior express consent. Plaintiff, however, has failed to meet her burden to 15 establish the existence of a genuine dispute by producing competent evidence that shows a genuine 16 issue for trial. See Celotex, 477 U.S. at 324. Plaintiff’s affidavit attesting that she spoke with a 17 representative several times and revoked consent is merely colorable absent specific dates or 18 names. 19 Accordingly, the court will grant defendant’s motion for summary judgment. 20 C. Plaintiff’s Motion for Summary Judgment (ECF No. 17) 21 Because defendant’s motion for summary judgment is granted, the court need not reach the 22 merits of plaintiff’s motion for summary judgment. Accordingly, plaintiff’s motion for summary 23 judgment will be denied as moot. 24 ... 25 ... 26 ... 27 ... 28 ... James C. Mahan U.S. District Judge - 11 - 1 IV. Conclusion 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant’s motion for 4 5 6 7 8 summary judgment (ECF No. 9) be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment (ECF No. 17) be, and the same hereby is, DENIED as moot. IT IS FURTHER ORDERED that defendant’s motion for reconsideration (ECF No. 29) be, and the same hereby is, GRANTED. 9 IT IS FURTHER ORDERED that the magistrate judge’s order (ECF No. 28) be, and the 10 same hereby is, AFFIRMED IN PART and REVERSED IN PART consistent with the following. 11  Plaintiff’s motion to strike (ECF No. 16) be, and the same hereby is, DENIED. 12  Defendant’s motion to reopen discovery (ECF No. 23) be, and the same hereby is, 13 DENIED as moot. 14 The clerk shall enter judgment accordingly and close the case. 15 DATED April 12, 2017. 16 17 __________________________________________ UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge - 12 -

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