Kerner v. Conserve

Filing 32

ORDER denying 25 Motion for Reconsideration Re: 24 Order on Motion for Summary Judgment. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Shawn Kerner
v.

Civil No. 16-cv-209-LM
Opinion No. 2017 DNH 117

Conserve

Defendant Conserve moves for reconsideration of the court’s
order denying its motion for summary judgment on plaintiff Shawn
Kerner’s claim under the Telephone Consumer Protection Act (the
“TCPA”), 47 U.S.C. § 227.

Kerner objects.
Legal Standard

Under the local rules of this district, a party may seek
reconsideration of an interlocutory order if it shows that the
order was based on “a manifest error of fact or law.”
7.2(d).

L.R.

“Reconsideration is an extraordinary remedy that is

used only sparingly.”

William v. U.S. Bank, N.A., No. 16-cv-

141-JD, 2016 WL 6238516, at *1 (D.N.H. Oct. 25, 2016).

A motion

for reconsideration “will generally be denied unless the moving
party can point to controlling decisions or data that the Court
overlooked and that might reasonably be expected to alter the
conclusion reached by the court.” United States ex rel. Williams
v. City of Brockton, No. 12-CV-12193-IT, 2016 WL 7428187, at *1
(D. Mass. Dec. 23, 2016).

Moreover, “[a] motion for

reconsideration is not intended to provide a party with a second
bite of the proverbial apple.”

Id.

Conserve moves for reconsideration of the court’s order
denying its motion for summary judgment.

Summary judgment is

appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movement is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

“‘Material facts’ are those which might affect the outcome of
the suit under the governing law, and an issue is ‘genuine’ if
there is evidence that would allow a reasonable jury to find for
the non-moving party.”

Audette v. Town of Plymouth, MA, --F.3d-

-, 2017 WL 2298070, at *5 (1st Cir. May 26, 2017) (internal
quotation marks omitted).
Background
Kerner’s TCPA claim arises under § 227(b), which makes it
unlawful for any person to call a cell phone using an automatic
telephone dialing system or an artificial or prerecorded voice
unless the call is “made for emergency purposes or made with the
prior express consent of the called party.”
227(b)(1)(A)(iii).

47 U.S.C. §

Conserve moved for partial summary judgment

on Kerner’s TCPA claim, arguing that the summary judgment record
demonstrated that Kerner had given it consent to call her and
had reaffirmed that consent as recently as September 2015.

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In

response, Kerner submitted a declaration in which she stated
that she told Conserve to stop calling her in the spring of 2015
and that she repeated this request to Conserve representatives
“multiple times” thereafter.

Based on her declaration, Kerner

argued that she had validly revoked any consent that she had
given Conserve to call her using automated means.
In its reply, Conserve argued that Kerner’s declaration was
not competent to oppose summary judgment because it was based on
“improbable inferences, conclusory allegations or rank
speculation” and lacked sufficient detail.

In its order denying

Conserve’s summary judgment motion, the court determined that
Kerner’s declaration was admissible because it set forth
nonconclusory facts that were based on her personal knowledge.
The court also rejected Conserve’s argument, premised on Fleet
Nat’l Bank v. H & D Entm’t Inc., 96 F.3d 532, 540 (1st Cir.
1996), that Kerner’s declaration lacked sufficient detail.

In

doing so, the court reasoned that unlike the affidavit in Fleet,
which asserted a conclusion based on certain discussions without
revealing the contents of those discussions, Kerner’s
declaration provided the specific statements on which she
relied.

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Discussion
Affidavits or declarations “are effective in opposing
summary judgment only when they are given on personal knowledge,
set out facts that would be admissible in evidence, and show
that the affiant . . . is competent to testify about the matter
in question.”

Garcia-Gonzalez v. Puig-Morales, 761 F.3d 81, 97

(1st Cir. 2014) (internal quotation marks omitted); Fed. R. Civ.
P. 56(c)(4) (“An affidavit or declaration used to support or
oppose a motion [for summary judgment] 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.”).

Conserve contends that the court

erred in denying its summary judgment motion because (1) the
declaration was not detailed enough to be credited for summary
judgment purposes and (2) the declaration contradicted the
record evidence.
I. Declaration Particularity
Conserve asserts that the court committed a manifest error
of law because its order did not conform to the “legal principle
that statements predicated on undefined discussions with unnamed
individuals at unspecified times are insufficient to overcome
summary judgment.”

Doc. no. 25-1.

In support, Conserve cites

Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001).

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This argument merely rehashes the same arguments that the
court rejected in its order denying Conserve’s motion for
summary judgment.

In its summary judgment order the court

rejected Conserve’s argument that Kerner’s declaration was too
lacking in detail to be credited for summary judgment purposes.
Perez, which Conserve did not cite in its motion for summary
judgment, does not alter that conclusion.
In Perez, the plaintiffs brought suit against Volvo,
alleging that it had facilitated a fraudulent invoicing scheme
conducted by its exclusive importer for Puerto Rico.
at 309.

247 F.3d

Volvo moved for summary judgment, and the plaintiffs

opposed the motion with the affidavit of a former owner of the
importer, who stated that based on “personal discussion with
various Volvo representatives,” he knew that Volvo “was fully
aware” of the fraudulent invoicing scheme.

Id. at 316.

Volvo

challenged the admissibility of the affidavit.
On appeal, the First Circuit held that the statements in
the affidavit were inadmissible.

Id.

In doing so, the court

observed that “personal knowledge” is the “touchstone” of the
admissibility analysis for summary judgment affidavits.
315.

Id. at

Nevertheless, the court concluded that even though the

affidavit “purported to be based on personal knowledge,” it was
not specific enough to support the statements contained therein
because it was “totally lacking in specificity about the
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identity of the ‘Volvo representatives’ with whom Gonzalez
ostensibly spoke, when those alleged conversations occurred,
what was said, how Volvo ‘knew’ [about the fraudulent scheme]
and how Gonzalez ‘knew’ the extent of Volvo’s knowledge.”
at 316.

Id.

The court further observed that “[s]tatements

predicated upon undefined discussions with unnamed persons at
unspecified times are simply too amorphous to satisfy the
requirements of Rule 56(e), even when proffered in affidavit
form by one who claims to have been a participant.”

Id.

(emphasis added).
Perez is inapplicable to this case for the same reasons
that the court found Fleet inapplicable.

In both cases, parties

sought to avoid summary judgment based on conclusory and vague
assertions about conversations with third parties without
providing any specific facts supporting those assertions,
including the actual content of the statements at issue.

In

this case, Kerner states that she received a number of calls
from Conserve’s representatives and provides the telephone
numbers from which those calls came.

Moreover, Kerner asserts

the specific content of what she told Conserve’s representatives
and provides the rough time-frame for when those conversations
occurred.

Given that defendant itself has acknowledged that its

representatives called Kerner on multiple occasions, the
conversations are not the type of “undefined discussions” at
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issue in Perez.

Doc. no. 29 at 4 (noting that multiple

conversations are identified in its account notes).
Nevertheless, Conserve contends that Kerner’s failure to
provide the exact dates of the telephone conversations and the
names of the representatives with whom she spoke renders her
declaration inadmissible.

The court disagrees.

The summary

judgment record already contains the very information that
Conserve contends makes Kerner’s declaration deficient.

In

support of its motion for summary judgment, Conserve attached
detailed account notes concerning its management of Kerner’s
account.

Those notes document the time and date of the calls

that Conserve representatives had with Kerner, see doc. no. 10
at 9, and appear to identify the Conserve representative making
those calls.

Armed with this information, Conserve fails to

cite any evidence showing that Kerner did not have discussions
with its representatives after she affirmed her consent in
September 2015.

Given this context, Kerner’s declaration does

not lack the requisite detail to be admissible for summary
judgment.
II. Declaration Contradicts the Record
Conserve also contends that the declaration should not be
credited because it contradicts the record.

In support,

Conserve points to its account notes, none of which, it argues,

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states that Kerner revoked her consent during the calls.
Conserve has presented no evidence that it was its business
practice to record revocations of consent in the account notes.
Therefore, the absence of such information in the account notes
is not evidence concerning revocation.

Moreover, even if such a

contradiction existed, it would not be sufficient for the court
to disregard Kerner’s declaration.

In essence, such a conflict

amounts to a discrepancy between Conserve’s employees’ account
of the telephone calls and Kerner’s account of those same calls.
A reasonable jury could believe either of these narratives, and
it is not the role of the court at this stage to make such a
determination.

Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d

206, 217 (1st Cir. 2016) (“Credibility determinations are for
the factfinder at trial, not for the court at summary
judgment.”).1

Conserve cites TCPA cases in which, it contends, courts
have refused to consider similar affidavits. In those cases,
however, the plaintiff’s affidavit was contradicted by either
incontrovertible evidence in the record or the plaintiff’s own
discovery responses. See Haysbert v. Navient Sols., Inc., No.
CV 15-4144 PSG (EX), 2016 WL 890297, at *9 (C.D. Cal. Mar. 8,
2016) (declaration conflicted with plaintiff’s earlier
interrogatory response); Cherkaoui v. Santander Consumer USA,
Inc., 32 F. Supp. 3d 811, 814-15 (S.D. Tex. 2014) (account notes
demonstrated that plaintiff had not spoken to representative,
contradicting his assertion that he revoked consent). There is
no incontrovertible evidence in the summary judgment record
demonstrating that Kerner did not revoke consent.
1

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Conclusion
For the foregoing reasons, Conserve’s motion for
reconsideration (doc. no. 25) is denied.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
June 12, 2017
cc:

Charles W. Grau, Esq.
Brendan H. Little, Esq.
Angela K. Troccoli, Esq.

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