CITY SELECT AUTO SALES, INC. v. DAVID RANDALL ASSOCIATES, INC. et al

Filing 151

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/27/2015. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CITY SELECT AUTO SALES, INC.,
a New Jersey corporation,
individually and as the
representative of a class of
similarly situated persons,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 11-2658 (JBS/KMW)

Plaintiff,
OPINION

v.
DAVID/RANDALL ASSOCIATES, INC.
and RAYMOND MILEY, III,
Defendants.

APPEARANCES:
Alan C. Milstein, Esq.
SHERMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY, PC
Eastgate Corporate Center
308 Harper Drive, Suite 200
Moorestown, N.J. 08057
-andTod A. Lewis, Esq.
Jonathan B. Piper, Esq.
BOCK & HATCH, LLC
134 N. La Salle St., Ste. 1000
Chicago, Ill. 60602
Attorneys for Plaintiff City Select Auto Sales, Inc.
F. Emmett Fitzpatrick, III, Esq.
FLAMM WALTON, P.C.
794 Penllyn Pike
Blue Bell, PA 19422
Attorney for Defendants and Third Party Plaintiffs David
Randall Associates, Inc. and Raymond Miley, III
SIMANDLE, Chief Judge:

I.

Contents
INTRODUCTION.............................................. 3

II.

BACKGROUND................................................ 7
Factual Background ...................................... 7
Procedural History ..................................... 13

III. Discussion............................................... 16
IV.

Defendants’ Motion to Decertify the Class................ 17
Standard of Review Applicable to Defendants’ Motion .... 18

Defendants Fail to Demonstrate that the Class Must be
Decertified ................................................. 19
V.

Plaintiff’s Motion for Class-Wide Summary Judgment....... 24
Standard of Review Applicable to Plaintiff’s Motion .... 24

Summary Judgment Will Be Granted in Favor of the Class and
against Defendants as to the TCPA Claim ..................... 25
1. The Subject Facsimile Transmissions Constitute “facsimile
advertisements” under the TCPA ............................ 26
2. No Issues of Fact Exist as to the Unsolicited Nature of
the Facsimile Advertisements .............................. 28
3.

Defendants Constitute “Senders” under the TCPA ........ 35

4. Issues of Fact Preclude Summary Judgment with respect to
the Claim of Individual Liability against Mr. Miley ....... 38
5. The Record Demonstrates the Class’s Entitlement to an
Award of Statutory Damages in the Amount of $22,405,000 ... 42
a. Biggerstaff’s Reports and the Underlying B2B Records
Constitute Admissible Evidence for Purposes of Summary
Judgment................................................. 44
b. Any Outstanding Issue Concerning the Third-Party
Default Defendants Does Not Preclude the Entry of Summary
Judgment in Favor of the Class........................... 52
c.
VI.

Determination of Damages and Entry of Judgment ...... 54

CONCLUSION............................................... 56

2

I.

INTRODUCTION
In this class action arising under the Telephone Consumer

Protection Act, 47 U.S.C. § 227 (hereinafter, the “TCPA”),
Plaintiff City Select Auto Sales, Inc. (hereinafter,
“Plaintiff”) alleges that Defendants David/Randall Associates,
Inc. (hereinafter, “Randall”) and Raymond Miley, III (hereafter,
“Miley” and collectively, the “Defendants”) transmitted unlawful
facsimile advertisements 44,832 times to 29,113 different fax
numbers, through a third-party entity Business to Business
Solutions (hereinafter, “B2B”).
Plaintiff now seeks the entry of class-wide summary
judgment against Defendants with respect to the TCPA claims (see
generally Pl.’s Br. [Docket Item 141]), while Defendants move to
decertify the Class.
133].)

(See generally Defs.’ Br. [Docket Item

Both motions, however, principally result from, and/or

are motivated by, three prior rulings of this Court.
First, on February 7, 2012, the Court rejected Defendants’
position that the limitations period applicable to Plaintiff’s
claims precluded this action from proceeding.

See generally

City Select Auto Sales, Inc. v. David Randall Assocs., Inc., No.
11-2658, 2012 WL 426267, at *5-*6 (D.N.J. Feb. 7, 2012).

In

particular, the Court found, at the Rule 12(b)(6) phase, that
the pendency of a related state court action tolled the
3

limitations period for the federal Class members, thereby
rendering their claims timely.

See id. at *5-*6.

Then, on December 20, 2013, the Court granted Plaintiff’s
motion for class certification, and certified Plaintiff’s TCPA
claim under Federal Rule of Civil Procedure 23(b)(3) on behalf
of the following class:
All persons or entities, with whom David Randall
Associates did not have an established business
relationship, who were successfully sent one or more
unsolicited faxes during the period March 29, 2006,
through May 16, 2006, stating, “ROOF LEAKS??? REPAIRS
AVAILABLE Just give us a call and let our professional
service technicians make the repairs!” and “CALL:
David/Randall Associates, Inc. TODAY.”
City Select Auto Sales, Inc. v. David Randall Assocs., Inc., 296
F.R.D. 299, 308 (D.N.J. 2013).

Finally, on September 24, 2014,

the Court denied Defendants’ motion for summary judgment with
respect to Plaintiff’s TCPA, state law conversion, and
individual liability claims, principally on the basis that the
undisputed facts failed to demonstrate Defendants’ entitlement
to judgment as a matter of law.

See City Select Auto Sales,

Inc. v. David Randall Assocs., Inc., No. 11-2658, 2014 WL
4755487 (D.N.J. Sept. 24, 2014).
In seeking the entry of class-wide summary judgment,
Plaintiff relies in part upon the Court’s denial of Defendants’
motion for summary judgment, and argues that the undisputed
record establishes the Class’s entitlement to judgment as a
4

matter of law to statutory damages under the TCPA in the amount
of $22,405,000.

(See generally Pl.’s Br. [Docket Item 141].)

Plaintiff, in particular, submits that the uncontroverted record
demonstrates that Defendants hired B2B to send facsimile
advertisements on Defendants’ behalf without the recipients’
prior express invitation or permission, nor the appropriate optout notice, and in violation of the TCPA.

(Id. at 4, 14-24.)

Defendants, however, insist that factual disputes pervade the
record as to the admissibility of Plaintiff’s reconstruction of
the B2B computer records, certain Class members consent to
receive facsimile advertisements, and Mr. Miley’s personal
liability for the disputed transmissions.

(See generally Defs.’

Opp’n [Dock Item 146].)
In addition to opposing Plaintiff’s motion, however,
Defendants move to decertify the Class on the basis that the
Court’s December 20, 2013 Certification Order rested upon “a
false factual premise,” namely, that only residents of New
Jersey comprised the putative class members encompassed by
Plaintiff’s proposed class definition.
Item 133].)

(See Defs.’ Br. [Docket

In particular, Defendants argue that Plaintiff’s

“belated production” of the names and addresses of the class
members recently revealed that non-New Jersey residents comprise
64% of the Class.

(Defs.’ Reply [Docket Item 140], 3-5.)
5

Therefore, Defendants assert that the presently certified Class
suffers from a “fundamental jurisdictional” deficiency, because
this Court “indisputably lacks subject matter jurisdiction” over
any recipient of facsimile transmissions beyond the borders of
the State of New Jersey.

(Id. at 1-5.)

The pending motions present three primary issues.

First,

the Court must consider whether the inclusion of non-New Jersey
residents in the certified Class constitutes newly discovered
evidence.

Second, the Court must determine whether such

composition requires modification of the Court’s prior decision
on class certification.

Finally, the Court must consider

whether genuine issues of disputed fact concerning Defendants’
liability under the TCPA preclude the summary disposition of
this action in favor of the Class. 1
For the reasons explained below, Defendants’ motion to
decertify class will be denied, and Plaintiff’s motion for
class-wide summary judgment will be granted with respect to
Defendant David/Randall Associates, Inc., but denied with
respect to Defendant Raymond Miley, III. 2

1

The Court exercises subject matter jurisdiction over
Plaintiff’s TCPA claims pursuant to 28 U.S.C. § 1331, and
supplemental jurisdiction over Plaintiff’s state law claims
under 28 U.S.C. § 1367(a).
2 The Court conducted oral argument on the pending motions on
February 25, 2015.
6

II.

BACKGROUND
Factual Background
The factual record in this action remains largely unchanged

from that set forth in the Court’s September 24, 2014 Opinion. 3
Nevertheless, the Court turns to the parties’ respective
statements of material facts.

3

At the outset, the Court rejects Defendants’ assertion that the
Court’s September 24, 2014 denial of their motion for summary
judgment precludes, by itself, the entry of summary judgment in
Plaintiff’s favor, and/or provides a basis to oppose Plaintiff’s
statement of material facts. (See, e.g. Defs.’ RSMF at ¶¶ 2635, 37-47.) As stated below the Court’s September 24, 2014
Opinion found that the undisputed record failed to demonstrate
Defendants’ entitlement to judgment as a matter of law on
Plaintiff’s TCPA and personal liability claims against
Defendant. See City Select Auto Sales, Inc., 2014 WL 4755487,
at *7, *9-*10. In so finding, the Court rejected Defendants’
legal position that they did not constitute a sender under the
TCPA, and Defendants’ factual position that the record failed to
demonstrate “Miley’s ‘personal involvement in the commission of
any tort of the violation of any statute.’” Id. at *9 (citation
omitted). Rather, as relevant here, the Court found that the
undisputed factual record “clearly depict[ed] Miley as
intimately involved” in the “discussions and negotiations with
B2B concerning the fax broadcasting program.” Id.
Consequently, the Court finds Defendants’ reliance upon the
Court’s September 24, 2014 decision insufficient, standing
alone, as a basis to oppose Plaintiff’s motion for summary
judgment, or to otherwise demonstrate the presence of a genuine
issue of fact. (See, e.g., Defs.’ SMF at ¶¶ 26-25, 36-67, 69-71,
73.) Moreover, whether a factual dispute is “material” will
depend upon the context of the parties’ respective burdens at
trial. As with cross-motions for summary judgment, the test for
granting or denying summary judgment is applied on a motion-bymotion basis.
7

In the spring of 2006, Raymond Miley, III acted as
President, Shareholder, Officer and Director of David/Randall
Associates, Inc., a commercial roofing company organized under
the laws of the Commonwealth of Pennsylvania.
¶¶ 2-3.)

(See Pl.’s SMF at

During the same period, third-party defendants

Caroline Abraham and Joel Abraham “operated an unincorporated
advertising business” named “‘Business to Business Solutions,’”
or “B2B,” which disseminated facsimile advertisements, on behalf
of its clients, to a list of U.S. companies purchased from
InfoUSA. 4

4

(Id. at ¶¶ 10, 12, 17.)

The Court rejects Defendants’ assertion that “[e]very single
factual assertion” set forth in the “unsworn” Declaration of
Caroline Abraham constitutes inadmissible evidence in context of
Plaintiff’s pending motion for summary judgment. (See, e.g.,
Defs.’ SMF at ¶ 10.) Affidavits or declarations in support of
or in opposition to a motion for summary judgment must “be made
on personal knowledge,” must “affirmatively” indicate the
affiant’s competence to testify to such matters, and must set
forth facts that would otherwise “be admissible in evidence.”
FED. R. CIV. P. 56(c)(4); see also Leese v. Martin, No. 11-5091,
2013 WL 5476415, at *6 (D.N.J. Sept. 30, 2013) (same). In other
words, the Court may rely upon an affidavit for purposes of
summary judgment only to the extent such affidavit constitutes
evidence at least potentially admissible at trial. See Hurd v.
Williams, 755 F.2d 306, 308 (3d Cir. 1985). Here, Ms. Abraham
swore to the contents of her affidavit, under penalty of
perjury, before a notary public, and based her statements upon
personal knowledge. (See generally Abraham Aff.) Therefore, as
stated in greater detail below, the Court finds that Ms.
Abraham’s affidavit constitutes admissible evidence for purposes
of summary judgment. See The Phoenix Ins. Co. v. W. Jersey Air
Conditioning & Heating Co., No. 09-5570, 2010 WL 4259174, at *3
(E.D. Pa. Oct. 26, 2010).
8

Mr. Miley, who directed David/Randall’s “marketing and
advertising” campaigns (id. at ¶ 5), became aware of B2B’s
services after B2B solicited David/Randall’s business, and
offered to market David/Randall’s roofing services through B2B’s
fax advertising services.

(Id. at ¶¶ 26.)

Following the

solicitation, Mr. Miley directed his administrative
assistant/office manager, April T. Clemmer, to contact B2B on
his behalf, in order to inquire into the specific pricing and
distribution details of B2B’s fax marketing services. 5

(Clemmer

Dep. at 9:22-16:1.)
After Ms. Clemmer obtained additional information
concerning B2B, Mr. Miley suggested that the service might be
beneficial for advertising David/Randall’s service repairs.
(Clemmer Dep. at 15:8-13.)

Ms. Clemmer, accordingly, continued

to communicate with B2B concerning B2B’s pricing, proposed
advertisements, and the targeted audience for the potential “fax
blast” campaign.
to Miley Dep.)

5

(Pl.’s SMF at ¶¶ 35-36; see also Pl.’s Ex. 3
Following an exchange of proposed

Though, as stated below, Ms. Clemmer directed all of
David/Randall’s communications with B2B, the undisputed record
reflects that Ms. Clemmer “reported directly to Miley,” and did
not have independent “authority to enter into contracts on
behalf of [David/Randall], [to] bind the company either
contractually or to pay moneys,” and/or to issue checks from
“the company bank account.” (Pl.’s SMF at ¶¶ 8-9; Defs.’ SMF at
¶¶ 8-9 (“Undisputed”).)
9

advertisements, on March 26, 2006, Ms. Clemmer faxed “the
approved ad” to B2B, along with a list of zip codes to be
“solicited for business.”

(Pl.’s Ex. 8 to Miley Dep.; Pl.’s SMF

at ¶ 41.)
The approved fax, which appears to have remained unchanged
throughout the remainder of B2B and David/Randall’s
relationship, stated “ROOF LEAKS??? REPAIRS AVAILABLE,” and
directed recipients in “Eastern PA, NJ, and Mid-State DE” to
call David/Randall for “the repair and maintenance of most major
roofing systems.”
SMF at ¶ 42.)

(Pl.’s Exs. 6-7 to Miley Dep.; see also Pl.’s

In addition, the ad provided an array of contact

information for David/Randall, and indicated that the
advertisement had been sent to the recipient because some
“person” at the recipient’s business “supplied the fax number
and permission to send faxes.”

(Pl.’s Exs. 6-7 to Miley Dep.)

Nevertheless, the advertisement provided “a toll free ‘Remove’
number” for recipients to be removed from the distribution list.
(Id.)
Thereafter, David/Randall received a letter (directed to
the attention of Ms. Clemmer), which stated that B2B had
“everything needed to start [David/Randall’s] faxing campaign,
except payment.”

(Exs. 8-9 to Clemmer Dep.)

Ms. Clemmer, in

turn, faxed B2B a “David/Randall Associates, Inc.” check for
10

$422.00 in connection with David/Randall’s “campaign for 12,000
faxes” on March 28, 2006, and directed that the transmissions be
sent on the “morning” of March 29, 2006.

(Pl.’s Ex. 9 to Miley

Dep (emphasis in original).)
Following the first “advertisement blast,” however,
David/Randall received multiple complaints concerning the
unsolicited nature of the advertisements. (See Exs. 12, 27 to
Clemmer Dep.)

Several complaints further stated that the remove

hotline seemed ineffective and/or unavailable, and suggested
that the advertisements violated applicable law.
Clemmer Dep.)

(See Ex. 27 to

As a result, Ms. Clemmer forwarded the list of

“Annoyed Recipients” to B2B on March 29, 2006, and requested
that the identified fax numbers be removed from any future
distribution lists.

(Id.; see also Pl.’s SMF at ¶ 49.)

Despite the complaints, Ms. Clemmer wrote to B2B on March
31, 2006, and stated that David/Randall “would like to do
another fax marketing blitz” during the morning of an upcoming
“rainy day.”
original).)

(Exs. 13-14 to Clemmer Dep. (emphasis in
In particular, Ms. Clemmer indicated that

David/Randall sought to send another 12,000 transmissions of the
previously-approved ad, and requested that the “areas solicited
for th[e] campaign” include “New Jersey: Hunterdon, Mercer,
Burlington, Camden, Gloucester & Salem Counties[;] Delaware: New
11

Castle County only [; and] Pennsylvania: Bucks & Chester
Counties.”

(Id.)

Following confirmation from B2B, Ms. Clemmer

faxed a David/Randall check to B2B in the amount of $394.00 as
“payment-in-full” for the second “fax blitz.”

(Ex. 15 to

Clemmer Dep.)
After the second advertisement blast, however, Ms. Clemmer
again advised B2B to “REMOVE” various entities from the
distribution list, particularly because several of the
complainants “threatened to pursue legal action” and/or to
contact the Federal Communications Commission.
in original).)

(Id. (emphasis

In addition, Ms. Clemmer stated that several of

the recipients “notified” her that the law requires that a
“‘800’ number opt out” be provided, and that many recipients
reported that the existing hotline remained unavailable.

(Id.)

Nevertheless, on April 12, 2006, Ms. Clemmer requested, on
a third occasion, that B2B “send 18,000 faxes in [an additional]
fax campaign,” in addition to providing new numbers to be
removed from B2B’s distribution list.
also Ex. 17 to Clemmer Dep.)

(Pl.’s SMF at ¶ 60; see

On the same day, Ms. Clemmer sent

B2B a check for $565.00 in connection with David Randall’s “3rd
campaign [of] another 18,000 faxes,” with instructions that the
faxes “BE SENT FRIDAY MORNING (4-14-06)!”

12

Following the third fax “blitz,” Ms. Clemmer again advised
B2B, on April 17, 2006, of “requests to have FAX numbers removed
from [B2B’s] list.”

(Ex. 27 to Clemmer Dep.)

Despite the

continuing complaints, however, on May 12, 2006, David Randall
authorized a “fourth-fax blasting campaign” on May 12, 2006.
(Pl.’s SMF at ¶ 65.)

As with the previous blasts, Ms. Clemmer

requested that 12,000 faxes be sent “to the original area
[David/Randall] targeted in March,” i.e., New Jersey, New Castle
County in Delaware, and Bucks and Chester Counties in
Pennsylvania.

(Ex. 22 to Clemmer Dep.)

In addition, Ms.

Clemmer enclosed a check for $394.00 and directed that the “Fax
blast” be completed during the morning of May 15, 2006.
Procedural History
On May 4, 2009, G. Winter’s Sailing Center, Inc. filed a
putative class action against David/Randall in the Superior
Court of New Jersey, alleging that the same series of
unsolicited faxes violated the TCPA.

See City Select Auto

Sales, Inc. v. David Randall Assocs., Inc., No. 11-2658, 2012 WL
426267, at *1 (D.N.J. Feb. 7, 2012).

The state court pleading

specifically alleged that “‘Defendant faxed the same and similar
advertisements to Plaintiff and more than 39 other recipients
without first receiving the recipients’ express permission or
invitation.’”

Id. (citation omitted).
13

The state court,

however, never certified the action on behalf of a class.

Id.

Rather, because the plaintiff moved for certification “nearly
two years” into the litigation, the state court denied the
motion on timeliness grounds, and concluded that the case would
proceed to trial only with respect to the claims of the single
plaintiff.

Id. at *2.

The parties reached a settlement shortly

thereafter, and the state court closed the case on April 27,
2011.

Id. (citation omitted).

This federal action followed on May 10, 2011, similarly on
the ground that David/Randall sent “form facsimile”
advertisements to “29,113 unique fax numbers” without “prior
express permission or invitation.”
¶¶ 13, 14, 29.)

(See Class Action Compl. at

Defendants then moved to dismiss Plaintiff’s

Complaint, primarily on the grounds that the applicable
limitations period barred Plaintiff’s claims for relief.

(See

Defs.’ Br. [Docket Item 8].)
On February 7, 2012, however, this Court concluded that,
under American Pipe & Construction Company v. Utah, 414 U.S. 538
(1974), the pendency of the state court putative class action
tolled the limitations period for “claims on behalf of unnamed
alleged recipients” of unsolicited facsimile advertisements
“during at least the first fourteen months of the Superior Court
action.” City Select Auto Sales, Inc. v. David Randall Assocs.,
14

Inc., No. 11-2658, 2012 WL 426267, at *5-*6 (D.N.J. Feb. 7,
2012).

Therefore, based upon the face of the Complaint, the

Court found the claims against Defendants timely.

See id.

Defendants then answered Plaintiff’s Complaint, and filed a
third-party Complaint against the operators of B2B, Caroline
Abraham and Joel Abraham (hereinafter, the “Abrahams”). [Docket
Item 23.]

The Abrahams, however, never responded to Plaintiff’s

Complaint, and the Court entered default on December 17, 2012.
[Docket Item 53.]
On December 20, 2013, the Court certified Plaintiff’s TCPA
claim under Federal Rule of Civil Procedure 23(b)(3) on behalf
of the following class:
All persons or entities, with whom David Randall
Associates did not have an established business
relationship, who were successfully sent one or more
unsolicited faxes during the period March 29, 2006,
through May 16, 2006, stating, “ROOF LEAKS??? REPAIRS
AVAILABLE Just give us a call and let our professional
service technicians make the repairs!” and “CALL:
David/Randall Associates, Inc. TODAY.”
City Select Auto Sales, Inc., 296 F.R.D. at 308, 6 and then
approved, subject to certain revisions, Plaintiff’s proposed
class notice form.

6

See City Select Auto Sales, Inc. v. David

On March 20, 2014, the Court of Appeals for the Third Circuit
denied Defendants’ petition for leave to appeal this Court’s
certification opinion. See City Select Auto Sales, Inc. v.
David/Randall Associates, Inc., App. No. 14-8001.
15

Randall Assocs., Inc., No. 11-2658, 2014 WL 413533, at *3
(D.N.J. Feb. 3, 2014).
This action thereafter proceeded on behalf of the
identified Class and, on September 24, 2014, the Court denied
Defendants’ motion for summary judgment with respect to
Plaintiff’s TCPA, state law conversion, and individual liability
claims.

See City Select Auto Sales, Inc., 2014 WL 4755487.

The

pending motions followed thereafter.
III.

DISCUSSION

As stated above, the pending motions present diametrically
opposed positions. Defendants’ motion hinges upon their
assertion that the Court’s certification of this action on
behalf of the identified Class rested upon a flawed factual
premise, requiring that the Class be reduced by 64%. (See
generally Defs.’ Br.) Plaintiff’s motion, by contrast, turns
upon its assertion that the undisputed record warrants summary
disposition of this action in favor of the presently certified
Class. (See generally Pl.’s Br.) However, by challenging the
propriety of the Class, Defendants’ motion presents a threshold
inquiry for resolution prior to Plaintiff’s motion. Therefore,
the Court will first address the merits of Defendants’ motion to
decertify.

16

IV.

DEFENDANTS’ MOTION TO DECERTIFY THE CLASS

In support of “decertification,” Defendants insist that the
Court’s certification decision rested upon the flawed premise
that only New Jersey residents comprised the unnamed facsimile
recipients in the state court putative class action.
Br. at 3-5; Defs.’ Reply at 1-5.)

(Defs.’

Defendants submit, however,

that a “new” list of class members has revealed that non-New
Jersey recipients comprise 64%, or 18,659 fax recipients, of the
class.

(Defs.’ Br. at 4-5.)

As a result, Defendants argue that

the facts now reflect that “the New Jersey Superior Court never
had jurisdiction over the putative claims of the 18,659 non-New
Jersey recipients” based upon the “immutable” axiom that a state
court lacks jurisdiction “over acts of non-residents which occur
entirely outside of its borders.”
at 3.)

(Defs’ Br. at 5; Defs.’ Reply

Defendants therefore insist that “American Pipe provides

no possible support for tolling putative claims” that extend
beyond the state court’s jurisdiction, rendering the claims of
the non-New Jersey residents “definitively time-barred,” and
requiring that they be excluded from the Class.
5.)

(Defs.’ Br. at

Plaintiff, however, argues that Defendants’ untimely

assertions have been waived and/or lack merit, particularly
because New Jersey state courts may, in appropriate cases,
assert jurisdiction over non-resident class members in a
17

multistate class actions.

(See Pl.’s Opp’n at 2-3, 7-11.)

For

the reasons that follow, Defendants’ motion will be denied.
Standard of Review Applicable to Defendants’ Motion
The parties dispute the manner in which to construe
Defendants’ motion.

(Compare Pl.’s Opp’n at 1-8 (arguing that

Defendants’ motion constitutes an inappropriate motion for
reconsideration), with Defs.’ Reply at 1, 3 (insisting that
Defendants’ motion presents a “never forfeited or waived”
challenge to the Court’s subject matter jurisdiction, rather
than a motion for reconsideration).)

Nevertheless, given the

substantive assertions in Defendants’ motion, the Court does not
find this inquiry particularly complex.
Indeed, Federal Rule of Civil Procedure 23(c)(1)(C)
specifically provides that an order determining whether to
certify a class action “may be altered or amended” at any time
prior to “final judgment.”

FED. R. CIV. P. 23(c)(1)(C).

Rule

23(c)(1)(C) therefore enables courts to consider whether a prior
class certification order should be revised “‘where the original
determination [becomes] unsound’” based upon “‘a changed factual
circumstance.’”

In re FleetBoston Fin. Corp. Sec. Litig., No.

02-4561, 2007 WL 4225832, at *5 (D.N.J. Nov. 28, 2007).
Nevertheless, the Rule compels essentially the same inquiry as
under Local Civil Rule 7.1(i).

See Kulig v. Midland Fund, LLC,
18

No. 13-4715, 2014 WL 6769741, at *1 (S.D.N.Y. Nov. 20, 2014)
(noting that a court may revisit a prior decision on
certification under Rule 23(c)(1)(C), if the movant identifies
“‘compelling reasons such as an intervening change of
controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice.’”)
(citation omitted); Fulford v. Transport Serv., Co., Nos. 032472, 03-2636, 2004 WL 1474574, at *1 (E.D. La. June 29, 2004)
(same).
As a result, a party seeking modification of a prior
certification decision must demonstrate either: “‘(1) an
intervening change in controlling law; (2) the availability of
new evidence not available previously; or (3) the need to
correct a clear error of law or prevent manifest injustice.’”
Andreyko v. Sunrise Sr. Living, Inc., 993 F. Supp. 2d 475, 478
(D.N.J. 2014) (citations omitted).
Defendants Fail to Demonstrate that the Class Must be
Decertified
Based upon the submissions, the Court finds that
Defendants’ motion amounts to little more than a nuanced
disagreement with the essential analysis set forth in the
Court’s prior Opinions.

Critically, although Defendants assert

that Plaintiff’s belated production of the names and addresses
of the class members implicated in this action only recently
19

revealed “that the putative class in this case includes non-New
Jersey residents,” (Defs.’ Reply at 4 (emphasis in original)),
the record readily reflects that Defendants have long known that
this action concerns facsimile recipients beyond the borders of
the State of New Jersey.
Indeed, Mr. Miley testified that David/Randall services
“hundreds of companies” in its “primary area of business ...
from Harrisburg east in Pennsylvania [and] from midstate New
Jersey south to midstate Delaware.”

(Miley Dep. at 56:11-15.)

The disputed advertisements in this action, accordingly, all
facially reflected David/Randall’s solicitation of business
throughout “Eastern PA, NJ, and Mid-State DE” (Pl.’s Ex. 14 to
Miley Dep.), and David/Randall specifically requested that B2B
advertise its services to businesses across more than 70 zip
codes in Pennsylvania and at least one entire county in
Delaware.

(See, e.g., Pl.’s Ex. 8 to Miley Dep.; Exs. 13, 17,

18, 22, 23 to Clemmer Dep.)

Given these circumstances,

Defendants can hardly be heard to claim that the presence of
non-New Jersey recipients as class members in this action
constitutes a new and/or recent development.

Indeed, in

repeatedly and expressly requesting that B2B transmit facsimile
advertisements throughout Delaware, Pennsylvania, and New

20

Jersey, Defendants themselves defined the multistate scope of
the present Class.
Moreover, the geographic composition of the Class was
readily apparent in 2010 when Defendants received the B2B hard
drive containing the fax transmissions logs or, at the latest,
in early 2011, following an examination of the B2B hard drive by
Defendants’ forensic experts.

(See Pl.’s Opp’n at 4 n.1; see

also Ex. C to Defs.’ Opp’n to Pl.’s Mot. for Class Certification
(discussing the January 17, 2011 examination of the B2B hard
drive by Defendants’ “forensic experts”).)
The composition of the Class therefore fails to constitute
new evidence sufficient to warrant modification of the Court’s
decision on certification.

Indeed, “in the absence of

materially changed or clarified circumstances courts should not
condone a series of rearguments” on the propriety of class
certification, and Defendants’ attempt to do so here warrants,
without more, the denial of the pending motion.

Hartman v.

United Bank Card, Inc., 291 F.R.D. 591, 597 (W.D. Wash. 2013)
(emphasis added); see Shanahan v. Diocese of Camden, No. 122898, 2014 WL 1217859, at *3 (D.N.J. Mar. 23, 2014) (generally
noting that material changes do not include the assertion of
“new arguments in order to get a second bite at the apple.”)
(citation and quotation marks omitted).
21

Nevertheless, the Court also finds Defendants’
“jurisdictional” challenge without merit. (Defs.’ Reply at 2-3.)
Critically, New Jersey law contains no blanket prohibition
against non-New Jersey residents being included in New Jersey
state court class actions.

To the contrary, New Jersey courts

have repeatedly found certification of multistate classes to be
appropriate, provided that “variations in state law [do not]
swamp common issues and defeat predominance.”

Beegal v. Park W.

Gallery, 925 A.2d 684, 694 (N.J. Super. Ct. App. Div. 2007)
(noting the permissibility of “multi-state” or “nationwide”
class actions in New Jersey state courts, even in the absence of
specific New Jersey conduct by the defendants) (citation
omitted); Delgozzo v. Kenny, 628 A.2d 1080, 1092 (N.J. Super.
Ct. App. Div. 1993) (noting same in connection with a non-New
Jersey defendant that provided “‘blue flame’ oil furnaces”
throughout New Jersey, New York, Connecticut, and the United
States).

Indeed, under certain, albeit rare circumstances, New

Jersey law permits the application of a single state law to “all
claims” in “a nationwide class action.”
(citation omitted).

Beegal, 925 A.2d at 694

Therefore, the Court rejects Defendants’

assertion that no set of circumstances would have empowered the
Superior Court of New Jersey to certify a class comprised, in
part, of non-New Jersey residents.
22

(See, e.g., Defs.’ Reply at

2-3.)

Rather, the weight of New Jersey authority readily

reflects the state court’s ability to consider the certification
of a multistate class, particularly where, as here, the action
primarily turns on the application of a single federal law.

The

Court, accordingly, finds that the state court could conceivably
have certified a TCPA class comprised of non-New Jersey
residents. 7

Moreover, Defendants do not, and cannot, dispute

this federal Court’s authority to exercise subject matter
jurisdiction over a multistate class in connection with this
federal class action litigation.

See In re Sch. Asbestos

Litig., 789 F.2d 996, 1010 (3d Cir. 1986) (observing the
plausibility of multistate class actions, but noting the need to
analyze variations in state law in order to ensure that “class
certification does not present insuperable obstacles”), cert.
denied, 479 U.S. 852 (1986).

7

Nor does the fact that the New Jersey Appellate Division has
questioned the superiority of the class action mechanism in the
TCPA context require any different conclusion. See, e.g.,
Levine v. 9 Net Ave, Inc., No. A-1107-00T1, 2001 WL 34013297
(N.J. Super. Ct. App. Div. June 7, 2001); Local Baking Products,
Inc. v. Kosher Bagel Munch, Inc., 23 A.3d 469 (N.J. Super. Ct.
App. Div. 2011). To the contrary, absent a definitive
determination by an appellate state court in New Jersey that no
TCPA class action could ever be maintained by trial courts in
the State, it remains conceivable that the Superior Court in the
earlier, related putative class action could have found
certification of the TCPA claim appropriate.
23

For all of these reasons, the Court rejects Defendants’
contention that this action must be decertified, or
alternatively that the class must be narrowed to New Jersey
residents, for lack of subject matter jurisdiction.

The Court

will, accordingly, deny Defendants’ motion, and turns to
Plaintiff’s motion.
V.

PLAINTIFF’S MOTION FOR CLASS-WIDE SUMMARY JUDGMENT
In support of class-wide summary judgment, Plaintiff

submits that the uncontroverted record demonstrates that
Defendants hired B2B to send facsimile advertisements on
Defendants’ behalf without the recipients’ prior express
invitation or permission, nor the appropriate opt-out notice,
and in violation of the TCPA.
14-24.)

(See generally Pl.’s Br. at 4,

Defendants, however, insist that factual disputes

pervade the record, and therefore preclude summary disposition
in favor of Plaintiff and the Class.
Opp’n [Dock Item 146].)

(See generally Defs.’

For the reasons that follow,

Plaintiff’s motion will be granted.
Standard of Review Applicable to Plaintiff’s Motion
Federal Rule of Civil Procedure 56(a) generally provides
that the “court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact” such
that the movant is “entitled to judgment as a matter of law.”
24

FED. R. CIV. P. 56(a). A “genuine” dispute of “material” fact
exists where a reasonable jury’s review of the evidence could
result in “a verdict for the non-moving party” or where such
fact might otherwise affect the disposition of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts, however, fail to
preclude the entry of summary judgment. Id.

In evaluating a

motion for summary judgment, the Court must view the evidence in
the light most favorable to the non-moving party, and must
provide that party the benefit of all reasonable inferences.
Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey v. Pfeiffer,
750 F.3d 273, 287 (3d Cir. 2014).

However, any such inferences

“must flow directly from admissible evidence[,]” because “‘an
inference based upon [] speculation or conjecture does not
create a material factual dispute sufficient to defeat summary
judgment.’”

Halsey, 750 F.3d at 287 (quoting Robertson v.

Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990);
citing Anderson, 477 U.S. at 255).
Summary Judgment Will Be Granted in Favor of the Class
and against Defendants as to the TCPA Claim
The TCPA seeks to address “an increasingly common nuisance—
telemarketing,” Erienet, Inc. v. Velocity Net, 156 F.3d 513, 514
(3d Cir. 1998), and specifically prohibits the transmission of a
facsimile advertisement absent the recipient’s prior express
25

invitation or permission.
(b)(1)(C)(i)-(iii).

See 47 U.S.C. §§ 227(a)(4),

Consequently, in order to grant summary

judgment on a TCPA claim, the plaintiff must specifically point
to evidence in the record sufficient to establish that: (1) the
defendant utilized a “telephone facsimile machine” to send “one
or more faxes;” 8 (2) that the transmissions constituted
“‘advertisements;’” and (3) that the defendant sent the
transmissions without the recipient’s consent, absent
application of one of the statutory exceptions.

Brodsky v.

HumanaDental Ins. Co., No. 10-C-3233, 2014 WL 2780089, at *6
(N.D. Ill. June 12, 2014) (citation omitted).

The Court will

address Plaintiff’s factual showing with respect to each
requirement in turn.
1.

The Subject Facsimile Transmissions Constitute
“facsimile advertisements” under the TCPA

The TCPA defines an “advertisement” as “any material
advertising the commercial availability or quality of any
property, goods, or services.” 47 U.S.C. § 227(a)(4).

8

The Court need not discuss the first element, because
Defendants conceded that B2B utilized a fax machine, or an
equivalent computer-based fax broadcasting application, in order
to send the advertisements at issue in this litigation on
Defendants’ behalf. (Defs.’ Opp’n at 27-28.) Indeed,
throughout the course of this lengthy litigation, no party has
challenged the fact that this action concerns, at its core,
B2B’s use of a “facsimile machine,” as defined in 47 U.S.C. §
227(a)(3).
26

Defendants do not dispute that the approved facsimile
advertisements highlighted David/Randall’s roofing services, and
directed recipients to contact David/Randall for their
“maintenance and repair needs”.
74; see also Pl.’s SMF at ¶ 74.)

(See generally Defs.’ SMF at ¶
Indeed, Defendants admit that

the subject facsimiles describe the commercial availability of
property, goods, and/or services offered by David/Randall. (See,
e.g., Ex. D. to Pl.’s Br.; Ex. B. to Defs.’ Opp’n; Pl.’s Ex. 6
to Miley Dep. (directing recipients to call David/Randall
“TODAY” and to “let [its] professional service technicians make”
any necessary roofing repairs).)

Defendants further concede

that David/Randall’s records reflect that Mr. Miley approved the
advertisement on David/Randall’s behalf. 9

(See Defs.’ SMF at ¶

72; see also Pl.’s SMF at ¶ 72; Miley Dep. at 35:15-16 (“I don’t
recall approving it, but [the document] says I did.”).)
Therefore, the Court finds that the subject facsimiles
constitute advertisements under the TCPA as a matter of law.

9

For that reason, and those stated below, the Court finds no
credible support for Defendants’ position that the ad “is
facially suspect and cannot possibly be found to constitute even
a representation of the fax which it purports to be without
testimony from whoever actually created it.” (Defs.’ Opp’n at
30.) Critically, the record contains no fewer than forty
identical copies of the disputed advertisements, nearly all of
which come from Defendants’ own documents and/or communications
with B2B.
27

See 47 U.S.C. § 227(a)(4) (noting that a qualifying
advertisement under the TCPA need only advertise “the commercial
availability or quality of any property, goods, or services”).
2.

No Issues of Fact Exist as to the Unsolicited
Nature of the Facsimile Advertisements

The TCPA defines “unsolicited” as material “transmitted to
any person without that person’s prior express invitation or
permission.”

47 U.S.C. § 227(a)(4).

Here, Defendants concede that neither David/Randall nor Mr.
Miley obtained the facsimile recipients’ express consent prior
to contracting with B2B for the facsimile advertising campaigns.
(See Defs.’ SMF at ¶ 19.)

Indeed, the undisputed record

evidence reflects that Defendants never possessed a list of the
intended fax recipients, nor requested such list from B2B.
id.)

(See

Rather, Defendants argue that factual disputes preclude

summary judgment, in light of Defendants’ purported “preexisting business relationship” with “at least 183” of the
asserted class members, and because certain class members,
including the named Plaintiff, “voluntarily and prominently
publicized” their fax numbers for public distribution on their
respective websites.

(Defs.’ Opp’n at 23-25 (citation omitted);

see also Fallon Aff. At ¶ 7 (noting that 183 class members “had
existing business relationships with David Randall Associates
Inc., prior to April, 2006, either as customers or vendors”).)
28

The Court, however, need not belabor Defendants’ position,
because the Court previously rejected Defendants’ identical
position in connection with the Court’s decision on class
certification.

See generally City Select Auto Sales, Inc., 296

F.R.D. 299.
Nevertheless, the Court notes that, as relevant here, the
ban on unsolicited facsimile advertisements specifically does
not apply if: (1) the sender has an “established business
relationship” with the recipient, 47 U.S.C. § 227(b)(1)(C)(i),
and (2) the recipient “voluntarily” publicized “its facsimile
number for public distribution.”

47 U.S.C. § 227(b)(1)(C)(ii).

In other words, “fax advertisements are not prohibited if the
unsolicited advertisement is ‘from a sender with an established
business relationship’” and the sender obtained the fax number
through an internet website.

City Select Auto Sales, Inc., 296

F.R.D. at 315 (citing 47 C.F.R. § 64.1200(a)(4)).

The Federal

Communications Commission, however, has specifically advised
that the availability of a facsimile number on “a directory,
advertisement or website does not alone entitle a person to send
a facsimile advertisement to that number.”

In the Matter of

Rules & Regulations Implementing the Tel. Consumer Prot. Act of
1991 Junk Fax Prevention Act of 2005, 21 F.C.C.R. 3787, 3796
(2006).

Therefore, publishing a fax number on a website does
29

not, by itself, constitute consent to receive unsolicited fax
advertisements under 47 U.S.C. § 227(b)(1)(C)(ii).

See id.

Consequently, even if David/Randall had an existing
business relationship with certain class members, the record
contains no indication that class members sufficiently
publicized their facsimile number “for public distribution” in
accordance with 47 U.S.C. § 227(b)(1)(C)(ii), nor that any class
members possessed both an established business relationship with
David/Randall and a sufficiently publicized facsimile number.
(See generally Fallon Aff.)

Indeed, in support of their

position, Defendants filed an affidavit with a list of entities
with which David/Randall had existing business relationships
prior to April 2006 (see Ex. C to Defs.’ Opp’n), and then
appended screen shots of different entities’ online publication
of their respective fax numbers.

(See Ex. D to Defs.’ Opp’n.)

Defendants’ position therefore fails, because Defendants have
not shown any overlap between the class members with which they
profess to have had established business relationships and those
which posted their facsimile numbers online. (Compare Ex. C to
Defs.’ Opp’n (setting forth David/Randall’s list of existing
business relationship), with Ex. D to Defs.’ Opp’n (appending
internet print outs for entities not included in David/Randall’s
list).)
30

Nor do the cases relied upon by Defendants compel any
different result.

(See Defs.’ Opp’n at 24.)

To the contrary,

Defendants merely recapitulate cases specifically considered,
and rejected, by the Court in connection with class
certification.
315-16.

See City Select Auto Sales, Inc., 296 F.R.D. at

Indeed, the Court’s prior decision on class

certification specifically found Landsman & Funk, P.C. v. Lorman
Bus. Ctr., Inc., No. 08–481, 2009 WL 602019 (W.D. Wis. Mar. 9,
2009) and Practice Mgmt. Support Servs., Inc. v. Appeal
Solutions, Inc., No. 09–1937, 2010 WL 748170 (N.D. Ill. Mar. 1,
2010), inapposite because the plaintiffs in both actions
consented to receive facsimile transmissions by directly
providing relevant contact information to the defendants.
In Landsman, for example, the plaintiff’s president
specifically submitted a seminar enrollment form that provided
plaintiff’s fax number as a method of contact.
at *2.

2009 WL 602019,

Indeed, the form itself specifically advised that,

“PROVIDING YOUR FAX NUMBER CONSTITUTES AN EXPRESS INVITATION TO
SEND YOU FAX ADVERTISEMENTS ABOUT FUTURE LORMAN SEMINARS.”
at *2.

Id.

As a result, the Landsman court found that the form

facially constituted plaintiff’s “express permission” to receive
fax advertisements. Id. at *1. Similarly, in Practice Mgmt.
Support Servs., the court granted summary judgment in
31

defendants’ favor, because the plaintiff’s president completed a
contact form on the defendants’ website, and specifically
provided a fax number for purposes of obtaining information
concerning the defendants’ products.

2010 WL 748170, at *3.

The Practice Mgmt. Support Servs. court, in turn, similarly
concluded that the plaintiff’s completion of a contact form
constitutes consent.

Id.

Critically, however, neither of these cases support
Defendants’ position that the publication of a fax number on a
website establishes, without more, consent to receive fax
advertisements.

Nor does the record demonstrate any similar

quantum of direct contact between the class members and
David/Randall.
Moreover, even if the Court found that Defendants’
submission raises a genuine issue of fact as to whether any
class members consented to the advertisement of David/Randall’s
services, or had an existing business relationship with
David/Randall, summary judgment on this issue would still be
warranted because the record contains no genuine dispute that
the advertisements failed to contain a statutorily-compliant
opt-out notice.

See, e.g., See Holtzman v. Turza, 728 F.3d 682

(7th Cir. 2013) (“Because [the defendant] omitted [the required]
opt-out notices, it does not matter which recipients consented
32

or had an established business relation with [the defendant].”);
see also 47 U.S.C. §§ 227(b)(2)(D), 227(b)(1)(C).

Critically,

in addition to the requirements stated above, application of the
statutory exception requires that the advertisement contain an
opt-out statement enabling the recipient to easily remove itself
from any future unsolicited advertisements.
227(b)(1)(C)(iii).

See 47 U.S.C. §

In particular, the advertisement must

clearly and conspicuously notify a recipient that it may opt out
of receiving any future unsolicited advertisements, must state
that the sender’s failure to comply with a request for removal
within 30 days violates applicable law, and must contain a
“cost-free mechanism,” including a domestic phone number and fax
machine number, for the recipient to transmit its removal
request. 42 U.S.C. § 227(b)(2)(D)(i)-(v); 47 C.F.R. §
64.1200(a)(4).
The disputed facsimile advertisements in this instance
contain no statement that the law obligates the sender to comply
with any removal requests within a reasonable time, nor do the
advertisements provide a toll-free domestic facsimile number for
purposes of submitting such requests.
¶ 74.) 10

10

(See, e.g., Pl.’s SMF at

Rather, the advertisements deceptively claim an

As stated above, Defendants do not genuinely dispute the
contents of the facsimile advertisements, nor do Defendants
33

“exempt[ion] from most faxing regulations” and provide only a
domestic contact telephone number, but no alternative fax
number.

(Id.)

In addition, and perhaps most significantly, the

notice does not clearly and conspicuously advise the recipient
of its legal right not to receive such unsolicited faces, only
noting instead that recipients may call the “‘Remove’ Hotline”
in order to “STOP receiving faxes.”
original).)

(Id. (emphasis in

The opt-out notices therefore suffer from fatal

defects, and preclude Defendants from relying upon the statutory
exception.

See Paldo Sign & Display Co. v. Wagener Equities,

Inc., ___ F. Supp. 2d ____, No. 09-7299, 2014 WL 4376216, at *7
(N.D. Ill. Sept. 4, 2014) (finding, in a B2B case, nearlyidentical opt-out notices defective, and granting summary

dispute that the advertisements appended to Plaintiff’s
submissions accurately reflect the advertisement in the form
approved by David/Randall. (See, e.g., Defs.’ SMF at ¶ 74.)
Indeed, Defendants’ own documents reflect that they received the
identical advertisement, on numerous occasions, in connection
with recipients’ complaints concerning the unsolicited
transmissions. (See, e.g., Exs. 17, 27 to Clemmer Dep.) The
Court therefore rejects Defendants’ suggestion that “only a
jury” can determine the “authenticity” of the fax advertisements
at issue in this litigation, particularly because Defendants
have proffered no evidence or expert testimony to infer that the
identified faxes constitute something other than that purported
by Plaintiff. (Defs.’ Opp’n at 30-31). In addition, Defendants’
speculation of possible “manufactured evidence” is unaccompanied
by even an arguably factual basis, and is therefore insufficient
to defeat summary judgment. (Id.)
34

judgment “as to whether the recipients consented to receive”
faxes); Van Sweden Jewelers, Inc. v. 101 VT, Inc., No. 10-253,
2012 WL 4074620, at * (W.D. Mich. June 21, 2012) (rejecting
similar arguments in another B2B case).
For all of these reasons, the Court finds the Class
entitled to summary judgment on the TCPA issue of whether class
members consented to receive the disputed faxes.
3.

Defendants Constitute “Senders” under the TCPA

The TCPA prescribes two parallel, and often blended,
theories of “sender” liability relevant to this litigation: the
first applies to “the person or entity” on “whose behalf” a
third party transmits an unsolicited facsimile advertisement;
the other applies to the person or entity “whose goods or
services are advertised or promoted in the unsolicited
advertisement.”

47 C.F.R. § 64.1200(f)(10); see also In Re

Rules and Regulations Implementing the Tel. Consumer Prot. Act
of 1991, 10 F.C.C.R. 12391, 12407–08 (1995) (clarifying that
“the entity or entities on whose behalf facsimiles are
transmitted are ultimately liable for compliance with the rule
banning unsolicited facsimile advertisements”).

In that regard,

the TCPA, by its own terms, “‘creates a form of vicarious
liability making an entity liable when a third party sends
unsolicited communications on its behalf in violation of the
35

Act.’”

Brodsky, 2014 WL 2780089, at *6 (quoting Bridgeview

Health Care Ctr. v. Clark, No. 09-C-5601, 2013 WL 1154206, at *4
(N.D. Ill. Mar. 19, 2013)).

Moreover, defendants cannot

exculpate themselves from “‘liability simply by hiring an
independent contractor’” for the purposes of transmitting
“‘unsolicited facsimiles on their behalf.’”
2780089, at *6 (citations omitted).

¨Brodsky, 2014 WL

Rather, “a person whose

services are advertised in an unsolicited fax transmission, and
on whose behalf the fax is transmitted, may be held [strictly]
liable under the TCPA’s ban on the sending of faxes,” despite
not physically transmitting the fax. 11

Palm Beach Gold Ctr.-

Boca, Inc. v. Sarris, 771 F.3d 1274, 1284 (11th Cir. 2014).

11

In this Court’s decision denying Defendants’ motion for
summary judgment, the Court rejected Defendants’ assertion that
Defendants could not be held vicariously liable under the TCPA
based upon the fact that B2B, rather than Defendants,
indisputably transmitted the facsimile advertisements. See City
Select Auto Sales, Inc., 2014 WL 4755487, at *6-*7. In so
finding, the Court adopted the reasoning of an amicus letter
from the FCC filed in the Palm Beach Golf Ctr.-Boca, Inc. v.
Sarris action, in which “the FCC emphasized that the junk-fax
provisions of the TCPA ‘clearly allow[] a plaintiff to recover
damages [under a theory of direct liability] from a defendant
who [transmitted] no facsimile to the plaintiff, but whose
independent contractor did,’ provided that ‘the transmitted fax
constitutes an unsolicited facsimile advertisement promoting the
defendant’s goods or services’ in accordance with the ‘binding
regulatory definition’ of ‘sender’ set forth in 47 C.F.R. §
64.1200(f)(1).” Id. (citation omitted). Since the Court’s
decision, the Court of Appeals for the Eleventh Circuit has
similarly adopted the FCC’s reasoning in defining “sender” for
36

Here, the Court previously concluded that “the disputed
facsimiles solely concern David Randall’s roofing services, and
nowhere advertise the goods, services, or products of any other
individual or entity” and that “the record contain[ed] no
dispute” that “B2B transmitted [the] advertisements on behalf of
Defendants.”

City Select Auto Sales, Inc., 2014 WL 4755487, at

*7 (citing 47 C.F.R. § 64.1200(f)(10)).

Indeed, the Court found

that “Defendants [specifically] concede[d] such facts.”

Id.

(citing Defs.’ SMF at ¶ 5 (“‘B2B successfully sent 44,832 faxes
for Defendants to 29,113 unique fax numbers. . . . the junk fax
was sent ‘on behalf of’ [] Defendants’”) (emphasis in
original).)

In the present submissions, Defendants do not

dispute these findings, nor point to any affidavits or other
documents that suggest a different conclusion.

To the contrary,

Defendants state, as a “fact[] of record,” that “David Randall
agreed to allow [B2B] to develop and conduct a fax advertising
campaign on its behalf.”

(Defs.’ Opp’n at 27-28.)

Therefore,

the Court concludes, as a matter of law, that Defendants
constitute senders of the disputed faxes under the TCPA.

purposes of the TCPA.
F.3d at 1284.

See Palm Beach Gold Ctr.-Boca, Inc., 771
37

4.

Issues of Fact Preclude Summary Judgment with
respect to the Claim of Individual Liability
against Mr. Miley

As the Court previously noted, “numerous district courts
have concluded that individuals acting on behalf of a
corporation may be held personally liable for violations of the
TCPA where they ‘had direct, personal participation in or
personally authorized the conduct found to have violated the
statute.”

City Select Auto Sales, Inc., 2014 WL 4755487, at *9

(quoting Connor v. Lifewatch, Inc., No. 13-3507, 2014 WL
4198883, at *5 (D.S.C. Aug. 20, 2014) (collecting cases)).
Here, Defendants argue that summary judgment must be denied
with respect to the individual liability claim against Mr.
Miley, because the Court’s Opinion denying Defendants’ motion
for summary judgment referenced “factual disputes” concerning
Mr. Miley’s personal involvement in the junk faxes that form the
predicate of this litigation.

(Defs.’ Opp’n at 16-17.)

In so arguing, however, Defendants ignore the overall
context of the Court’s prior determination, and ignore the fact
that the Court’s discussion only served to reject Defendants’
position that the record failed “to demonstrate Miley’s
‘personal involvement in the commission of any tort or the
violation of any statute.’”

See City Select Auto Sales, Inc.,

2014 WL 4755487, at *9 (citation omitted).
38

Therefore, the Court

rejects Defendants’ position that the Court’s prior Opinion
constitutes the “law of the case” on the individual liability
claim.

(Defs.’ Opp’n at 16-17.)

Nevertheless, the Court again

finds that factual disputes preclude the entry of judgment, as a
matter of law, on the issue of Mr. Miley’s individual liability
under the TCPA.
At the outset, the Court notes that the factual record
contains strong references to Mr. Miley’s involvement in the
subject advertisements.

Mr. Miley served as David/Randall’s

President, Shareholder, Officer and Director.
¶ 2; Defs.’ SMF at ¶ 2 (“Admitted”).)

(See Pl.’s SMF at

Moreover, Defendants

admitted that Mr. Miley led David/Randall’s “marketing and
advertising” during the relevant period, and admitted that Mr.
Miley instructed Ms. Clemmer, at least initially, to contact B2B
concerning its fax advertising services.
Opp’n.)

(See Ex. B to Defs.’

Ms. Clemmer’s testimony, in turn, consistently reflects

that Mr. Miley “brought” B2B’s solicitation to her attention and
directed her to contact B2B on his behalf in order to discuss a
potential fax campaign.
43:20-23.)

(Clemmer Dep. at 9:22-16:1, 28:5-8,

Ms. Clemmer, in particular, testified that Mr. Miley

acted as “the ultimate decision-maker in approving the” ads’
forms, “determined the number of faxes” to be disseminated, the
time within which to transmit such faxes.
39

(Id. at 15:10-16,

20:4-21:8, 28:5-8, 43:20-23, 56:24-57:7, 61:5-9, 74:5-9.)
Moreover, it is undisputed that Ms. Clemmer lacked the authority
to enter into contracts or to authorize any payments on behalf
of David/Randall.

(See Pl.’s SMF at ¶ 3-9; Defs.’ SMF at ¶ 3-9;

Clemmer Dep. at 74:1-13.)
Nevertheless, the Court cannot ignore that Mr. Miley did
not directly correspond with B2B, nor does Ms. Klemmer
specifically disclose Mr. Miley’s involvement in any of her
correspondence with B2B.

Moreover, though Mr. Miley testified

that, as David/Randall’s President, he authorized payment of
marketing-related expenses, the undisputed record does not
reflect that Mr. Miley personally signed any of the B2B payments
or that he directly authorized the B2B payments. 12

Therefore,

even if the Court again concluded that, “Miley’s deposition
testimony contains little more than ‘broad memory failures and
general denials’ concerning his involvement in the dissemination

12

The Court rejects Plaintiff’s assertion that it is undisputed
that Mr. Miley directly participated in and authorized at least
the “first fax blast campaign related to 7,652 successful fax
transmissions.” (Pl.’s Reply at 9.) Indeed, despite
Plaintiff’s assertion, Mr. Miley made no such admission.
Rather, Mr. Miley specifically stated that he did not “recall
approving it,” but recognized that at least one document
reflected that he “did.” (Miley Dep. at 34:16-25:3.) Given
this testimony, issues of fact preclude the entry of summary
judgment against Mr. Miley, even as to only the first fax
campaign.
40

of the facsimile transmissions” City Select Auto Sales, Inc.,
2014 WL 4755487, at *9 (citation omitted), the Court cannot
ignore Mr. Miley’s absence from the documentary evidence relied
upon by Plaintiff, namely, Ms. Clemmer’s correspondence with B2B
and her remittance of payments for B2B’s services.

Nor can the

Court entirely discredit Mr. Miley’s deposition testimony,
particularly given his specific denial of knowledge and
responsibility for the subject facsimile advertisements.

(See,

e.g., id. at 35:15-16 (“I don’t recall approving [the ad], but
this says I did.”), 37:11-12 (“I have – let me just say this
again: I don’t recall any part of [the fax advertising].”),
38:13-23 (“I don’t recall being part of [the fax advertising
campaign].”), 52:22-23 (“I have no knowledge of the faxes at
all, of the program or whatever it is.”).)

His specific denials

of knowledge of these fax programs is admissible evidence, and
the Court cannot weigh conflicting evidence in a summary
judgment motion.
For all of these reasons, the Court finds that factual
disputes preclude the entry of judgment with respect to the
individual liability claim against Mr. Miley.

See Sandusky

Wellness Ctr., LLC v. Wagner Wellness, Inc., No. 12-2257, 2014
WL 1333472, at *3 (N.D. Ohio Mar. 28, 2014) (finding disputed
facts precluded the entry of summary judgment with respect to
41

the plaintiff’s claim of personal liability against defendant’s
officer for any violations of the TCPA); Jackson Five Star
Catering, Inc. v. Beason, No. 10-10010, 2013 WL 5966340, at *4
(E.D. Mich. Nov. 8, 2013) (granting the plaintiff’s motion for
summary judgment where the record contained no dispute that the
individual corporate officer participated in the payment of and
authorization for the fax ads).
5.

The Record Demonstrates the Class’s Entitlement
to an Award of Statutory Damages in the Amount of
$22,405,000

Having concluded that no issues of fact preclude the entry
of summary judgment under the TCPA in favor of the Class, the
Court turns to the parties’ dispute concerning the calculation
of statutory damages.

Plaintiff submits that the

“uncontroverted record evidence,” namely, the fax records
obtained from the B2B hard drive and the expert testimony of
Plaintiff’s computer forensic expert, Neil L. Biggerstaff,
reflect that “B2B successfully sent Defendants’ advertisements
44,832 times to 29,113 unique targets.”

(Pl.’s Reply at 5

(citations omitted); see also Ex. G to Pl.’s Br. (concluding,
based upon digital data provided by counsel for Plaintiff, that
B2B’s hard drive, shows “that a total of 44,832 successful
transmissions of a 1-page fax were successfully sent and
received by 29,113 unique fax numbers”).)
42

Therefore, after

excluding the 21 requests for exclusion, and the one class
member “who did not receive notice,” Plaintiff claims that
“there are 44,810 violations at issue in [this] motion,” and
requests an award of statutory damages in the amount of
$22,405,000 (or, 44,810 multiplied by $500). 13

(Pl.’s Br. at

24.)
Defendants, however, oppose the assessment of damages on
summary judgment on two grounds.

First, Defendants argue that

factual disputes concerning Mr. Biggerstaff’s report preclude
the entry of summary judgment, because “[n]ot a single piece of
evidence connects [the] ‘integral’ [B2B] hard drive to the
digital data” upon which Mr. Biggerstaff based his calculation
of the disputed transmissions. (Defs.’ Opp’n at 21.)

In that

regard, Defendants claim that issues regarding the “origin,
authenticity, integrity, and chain of custody” plague the data
provided to Mr. Biggerstaff, and seemingly speculate, without
support, that counsel for Plaintiff potentially manipulated the
digital data prior to providing it to Mr. Biggerstaff.

(Defs.’

Opp’n at 20-21 (“Plaintiffs’ counsel has notably never offered

13

Under the TCPA, each facsimile transmission constitutes an
independent violation. See 47 U.S.C. § 227. In calculating
damages, the Court may award the greater of the party’s “actual
monetary loss” from the TCPA violation, or “$500 in damages for
each” violation. 47 U.S.C. § 227(b)(3)(A)-(C)
43

any affidavit whatsoever from [counsel for Plaintiff] regarding
the materials [counsel] provided to Mr. Biggerstaff”).)

Given

these “disputed facts,” Defendants argue that only a jury can
determine the weight and evidentiary value of the expert
evidence. 14

(Id. at 22.)

Second, Defendants insist that

“summary judgment cannot lie,” because only a jury may determine
the amount of damages to be assessed against third-party default
defendants pursuant to “Defendants’ Third Party Liability
Judgment.”

(Defs.’ Opp’n at 26-27.)

The Court, however, finds

both positions without merit, and will address each in turn.
a. Biggerstaff’s Reports and the Underlying B2B
Records Constitute Admissible Evidence for
Purposes of Summary Judgment
At the outset, the Court notes that, despite their dispute
of the reliability of Mr. Biggerstaff’s expert report,
Defendants have not moved to exclude Mr. Biggerstaff’s report
under Federal Rule of Evidence 702 or otherwise addressed the
relevant the applicable inquiry under Daubert v. Merrell Dow
Pharmas., Inc., 509 U.S. 579 (1993).

14

(See generally Defs.’

Defendant similarly argues that only the jury may determine an
award of treble damages, because Defendants “vehemently dispute”
that Defendants acted “knowingly and willfully.” (Defs.’ Opp’n
at 25-26.) However, because Plaintiff has only requested an
award of statutory damages (see Pl.’s Br. at 3-4), rather than
treble damages, the Court need not address Defendants’ position.
(See Defs.’ Opp’n at 25-26.)
44

Opp’n at 19-22.)

Nor do Defendants challenge Mr. Biggerstaff’s

qualifications, the reliability of the methodology he used to
extrapolate the number of transmissions from the digital data,
or the fact that he recovered David/Randall communications in
the B2B data files. 15

Rather, Defendants only challenge the

reliability of the underlying data Mr. Biggerstaff received from
counsel for Plaintiff, based upon their assertion that Mr.
Biggerstaff only reviewed a digital reimaging of the B2B
records, rather than the underlying hard drive.

(See generally

Defs.’ Opp’n at 19-22.)
In so arguing, however, Defendants ignore and
mischaracterize the nature of the B2B information actually
relied upon Mr. Biggerstaff. 16

15

Critically, in asserting that

For these reasons, the Court asked the parties on the oral
argument record on February 25, 2015, whether a hearing under
Federal Rule of Evidence 104 should be conducted prior to
disposing of the pending motion. However, both parties indicated
that no hearing was necessary. Counsel for Defendants stated
that conducting a Rule 104 hearing at this stage of the
proceedings would constitute “untoward advocacy” in favor of the
Class. For the reasons set forth herein, the Court will not
hold a Rule 104 hearing, because the record amply supports the
admissibility of Mr. Biggerstaff’s expert reports and
declarations.
16 In assessing the number of transmissions in this instance, Mr.
Biggerstaff submitted an expert report dated June 22, 2009,
declarations dated March 29, 2011, March 22, 2012, and June 19,
2014, a configuration and source course analysis dated December
1, 2010, and a data integrity analysis dated December 1, 2010.
(See, e.g., Exs. G, H, I, N, O, and P to Pl.’s Br.) In that
regard, the Court agrees with counsel for Plaintiff that the
45

“[n]ot a single piece of evidence connects [the] ‘integral’
[B2B] hard drive to the digital data” relied upon by Mr.
Biggerstaff (Defs.’ Opp’n at 21), Defendants ignore the fact
that Mr. Biggerstaff did indeed review B2B’s “80GB hard drive”
(Exs. N, O, P to Pl.’s Br. (all noting Mr. Biggerstaff’s review
of the “hard drive” and attaching photographs of the visual
media), in addition to examining the contents of two separate
DVD-ROMs.

(Ex. G to Pl.’s Br. (noting that Mr. Biggerstaff

reviewed the “Contents of a DVD-ROM labeled ‘FAXING (1,2,3)
060715’” and “47 U.S.C. § 227”).)

Indeed, Mr. Biggerstaff

certified that his review of the “contents and metadata” of the
B2B computer records contained on the hard drive and the DVDROMs included an examination of:
a. [The] [o]perating system, configurations, and support
files for a Slackware Linux server utilizing the HylaFAX
faxing platform and MySQL databases;
b. Source code to the HylaFAX faxing platform;
c. Logs and other files automatically created by the system;
d. Hundreds of “verification faxes” where B2B included its
own fax number in the list of fax destinations for a
client fax broadcast, so as to verify the contents of the
fax image and the proper processing of broadcasting jobs;
e. Internal correspondence regarding fax broadcasting
activity and other business operations (such as
scheduling of fax jobs, determining “counts” for client
faxes, processing payments, instructions for dealing with
vendors, and rollout of changes to fax “opt-out”
notices);

admissibility of Mr. Biggerstaff’s analyses must be adjudged
based upon the totalilty of Mr. Biggerstaff’s submissions.
46

f. Internal data such as customer lists, scripts, internal
telephone assignments/routing details, databases,
hardware/IP inventories;
g. External correspondence with customers regarding matters
such as inquiries, new customer signup sheets,
advertisement design, fax broadcasting jobs, payment
instructions, voice mails, and checks; [and]
h. External correspondence with outside vendors, such as
with phone companies regarding telephone service.
(Ex. P to Pl.’s Br.)
Defendants further ignore the fact that, despite Mr.
Biggerstaff’s exhaustive review, he reported that the B2B data
revealed “no evidence of any attempts at alteration or
manipulation of the B2B records after the fact, or any evidence
of inconsistent metadata.”

(Id. at ¶ 9.)

Rather, he found “the

B2B records consistent with being contemporaneous records of
day-to-day business operations kept by B2B and records
automatically and contemporaneous[ly] created by the B2B
computer system,” particularly given the records’ consistency
with “extrinsic data” retained by third parties, including “call
detail records and copies of fax transmissions sent by B2B and
received by others.”

(Id. at ¶¶ 9, 11, 13.)

Mr. Biggerstaff

therefore certified that, “to a very high degree of certainty,”
the B2B hard drive contains “authentic,” “contemporaneously
created,” “and accurate records of B2B’s business operations.”
(Id. at ¶ 12.)

And, that the data identified, in relevant part,

“44,832 successful and error-free transmissions of a [facsimile
47

advertisement] to 29, 113 unique fax numbers.”

(Ex. H to Pl.’s

Br.)
Despite the fact that Defendants’ own forensic experts
examined the hard drive, Defendants have not proffered any
evidence, expert or otherwise, to question Mr. Biggerstaff’s
evaluation or the integrity of the hard drive data.

(See Ex. C

to Defs.’ Opp’n to Pl.’s Mot. for Class Certification
(discussing the January 17, 2011 examination of the B2B hard
drive by Defendants’ “forensic experts”).)

Nor have Defendants

challenged the consistency between Mr. Biggerstaff’s calculation
of the number of transmissions at issue in the pending motion,
44,810, and the number of faxes collectively requested by Ms.
Clemmer’s correspondence.

(See, e.g., Ex. 14 to Clemmer Dep.

(requesting a campaign of 12,000 faxes); Ex. 15 to Clemmer Dep.
(requesting, on another occasion, a campaign of 12,000 faxes);
Ex. 19 to Clemmer Dep. (requesting, on another occasion, a
campaign of 18,000 faxes).)

Rather, Defendants rely upon the

“evidentiary deficiencies and chain-of-custody issues”
purportedly identified by the Court in its certification
decision.

(Defs.’ Opp’n at 20.)

However, the Court’s certification decision found
Defendants’ challenges to the hard drive’s admissibility
insufficiently weighty to defeat Plaintiff’s showing of probable
48

admissibility. 17
317.

City Select Auto Sales, Inc., 296 F.R.D. at

In connection with the pending motion, these prior

conclusions remain unchanged, particularly given Defendants’
failure to cite record evidence demonstrating a genuine dispute
as to the reliability of the hard drive data, Orsatti v. N.J.
State Police, 71 F.3d 480, 484 (3d Cir. 1995), and the fact that
the Court need only find the evidence potentially admissible at
trial.

See Hurd v. Williams, 755 F.2d 306, 308 (3d Cir. 1985).

Given the submissions, Mr. Biggerstaff’s reports easily meets
this standard, despite Defendants’ unsupported speculation. See
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010)
(“speculation and conjecture may not defeat summary judgment”).
The Court further finds sufficient evidence in the record
to demonstrate the authenticity of the B2B records.

Critically,

in order to be considered as evidence for purposes of summary
judgment, documents must be properly authenticated in accordance
with Federal Rule of Evidence 901(a).

Rule 901(a) does not,

however, “erect a particularly high hurdle,” Thanongisnh v. Bd.

17

Moreover, the Court specifically stated that it would not find
the hard drive inadmissible, without an evidentiary hearing,
particularly because various individuals could be called “to
address potential evidentiary deficiencies.” City Select Auto
Sales, Inc., 296 F.R.D. at 317. Defendants, however, have
requested no such hearing, and indeed rejected the need for such
a hearing on the oral argument record on February 25, 2015.
49

of Educ., 462 F.3d 762, 779 (7th Cir. 2006), and Plaintiff need
only produce “evidence sufficient to support a finding that the
matter in question” constitutes “what the proponent claims.”
FED. R. EVID. 901(a).
Here, Ms. Abraham’s affidavit states that, she produced (or
caused to be produced) “an original computer hard drive” marked
S/N: WCAHL6653150 and “two DVD Rom disks,” all of which
contained “B2B’s electronically stored information and computer
generated records.”

(Abraham Aff. at ¶ 4.)

In addition, Ms.

Abraham certified that B2B “contemporaneously” stored its
electronic date, and that “[a]ll B2B data remained in [her]
personal residence, untouched” and unaltered since its
creation.” 18

18

(Id.)

Mr. Biggerstaff, in turn, confirmed that the

Nor does the Court find that Ms. Abraham’s declaration must be
rejected because it purportedly contradicts claims she “made in
other declarations and sworn statements” in connection with
other litigation. (See, Defs.’ SMF at ¶ 10.) Notably,
Defendants do not contend the alleged contradictions necessarily
render the affidavit a “‘sham,’” or dispute that contradictions
alone fail to warrant the rejection of a signed affidavit in its
entirety. See Madden v. A.I. DuPont Hosp. for Children of the
Nemours Foundation, 264 F.R.D. 209, 221 (E.D. Pa. 2010) (noting
the Court of Appeals’ “‘flexible approach’” to the “sham
affidavit” doctrine, and “observing that ‘not all contradictory
affidavits are necessarily shams’”). Nor do Defendants point,
with specificity, to any particularly troubling excerpts from
prior affidavits. Rather, Defendants cryptically refer the
Court to their prior briefing, and “incorporate[] by reference”
approximately 50 exhibits, spanning over 1000 pages. This fails
to suffice for purposes of Local Civil Rule 56.1(a) which
requires a party opposing summary judgment to state each
50

electronic data showed no signs of manipulation or alteration,
nor any other cause to question its integrity.
Br.)

(Ex. P. to Pl.’s

Indeed, Mr. Biggerstaff found the contents consistent with

Ms. Abraham’s declaration, with the various documents exchanged
by the parties in this litigation, and with contemporaneously
archived data retained by third parties.

(See, e.g., Exs. G, P

to Pl.’s Br.)
Therefore, the Court finds that the record sufficiently
supports the B2B hard drive’s authenticity, and that the B2B
hard drive meets the admissibility standard for purposes of
summary judgment, and as a basis for Biggerstaff’s expert
opinion testimony.
In so concluding, the Court follows the weight of authority
that has already found Mr. Biggerstaff’s analysis admissible and
sufficient to support the entry of summary judgment in favor of
the Class.

See, e.g., Paldo Sign & Display Co., ___ F. Supp. 2d

____, No. 09-7299, 2014 WL 4376216 (granting summary judgment

material fact in dispute and “cit[e] to the affidavits and other
documents submitted in connection with the motion; .... In
addition, the opponent may also furnish a supplemental statement
of disputed material facts, in separately numbered paragraphs
citing to the affidavits and other documents submitted in
connection with the motion, if necessary to substantiate the
factual basis for opposition.” It is not the duty of this Court
to sift through a thousand pages of documents to see whether
some might contain material contradictions to the statements in
the Abraham and Biggerstaff declarations.
51

based upon Mr. Biggerstaff’s extrapolated analysis); Am. Cooper
& Brass, Inc. v. Lake City Indus. Prods., Inc., No. 09-1162,
2013 WL 3654550 (W.D. Mich. July 12, 2013), aff’d, 757 F.3d 540
(6th Cir. 2014) (finding Mr. Biggerstaff’s analysis reliable for
purposes of summary judgment); Jackson Five Star Catering, Inc.
v. Beason, No. 10-10010, 2013 WL 5966340 (E.D. Mich. Nov. 8,
2013) (same).

Therefore, the Court turns to Defendants’

position concerning the third-party default defendants.
b. Any Outstanding Issue Concerning the ThirdParty Default Defendants Does Not Preclude the
Entry of Summary Judgment in Favor of the Class
The Court, however, need not belabor Defendants’ position
concerning an assessment of damages as against the third-party
defendants, because such an issue has no relevance to whether
the undisputed record evidence entitles the Class to entry of
judgment against David/Randall and/or Mr. Miley.

Indeed,

Plaintiff has asserted no direct claims against the third-party
defendants, Caroline and Joel Abraham.

To the contrary,

Defendants filed a Third-Party Complaint, seeking, in primary
part, to hold the Abrahams jointly and severally liable “for the
exact amount of any judgment” that may be entered against
Defendants in this action.

(Third-Party Complaint at ¶ 18.)

Following the third-party defendants failure to respond, the
Court then entered default against the Abrahams on December 17,
52

2012 as to the Third-Party Complaint.

[Docket Item 53.]

Consequently, any assessment of the judgment to be entered
against the Abrahams and in favor of Defendants/Third-Party
Plaintiffs for contribution or indemnification would necessarily
follow a determination of the Class’s entitlement to judgment
against Defendants.

Moreover, despite Defendants’ assertion

that the Court “entered Judgment as to liability,” no default
judgment has ever been entered, 19 and the monetary damages
ultimately assessed in a default judgment, if any, do not defeat
summary judgment in favor of the Class.
In addition, the Court finds no support for Defendants’
position that the third-party defendants’ failure to respond to
Defendants’ Third-Party Complaint, renders the allegations of
the Third-Party Complaint “facts of record” sufficient to create
“a genuine issue of material fact with regard to contrary claims
by the Plaintiffs in their Complaint.”

(Defs.’ Opp’n at 27-30.)

To the contrary, because the Third-Party Complaint asserted no
claims against Plaintiff or the Class, Plaintiff had no

19

Under Federal Rule of Civil Procedure 55 obtaining a default
judgment requires a two-step process. See FED. R. CIV. P. 55.
First, when a party fails to plead or otherwise defend, the
clerk must enter that party’s default. See FED. R. CIV. P. 55(a).
Following default, the non-defaulting party may then move for a
default judgment. See FED. R. CIV. P. 55(b). Here, Defendants
have only completed the first phase, that is, entry of default.
53

obligation to “admit or deny” any of the allegations set forth
in the third-party Complaint.

See FED. R. CIV. P. 8(b)(1)(B)

(providing that, “[i]n responding to a pleading, a party must:
admit or deny the allegations asserted against it by an opposing
party.”) (emphasis added).

And, Defendants’ mere reference to

Plaintiff and/or Defendants’ assertion of allegations contrary
to those set forth by Plaintiff does not alter this conclusion.
Therefore, the allegations of the Third-Party Complaint cannot
be deemed admitted as against the Class under Federal Rule of
Civil Procedure 8(b)(6) for purposes of the pending motion.
c. Determination of Damages and Entry of Judgment
As stated above, the Court finds Mr. Biggerstaff’s report
reliable and trustworthy as to the number of violative facsimile
transmissions successfully sent in this instance, and consistent
with the number of transmissions directly requested and approved
by Defendants.
Therefore, the Court will grant Plaintiff’s motion for
class-wide summary judgment, and will enter judgment in favor of
the Class, based upon the sum of the unsolicited transmissions
multiplied by the amount of statutory damages provided under the
TCPA.

See Siding & Insulation Co. v. Combined Ins. Grp., Ltd.,

Inc., No. 11-1062, 2014 WL 1577465, at *5 (N.D. Ohio Apr. 17,
2014) (granting Plaintiff’s request for summary judgment in
54

part, and finding Plaintiff entitled to damages in the amount of
$25,000 for the 50 faxes sent in violation of the TCPA);
Vandervort v. Balboa Capital Corp., 8 F. Supp. 3d 1200 (C.D.
Cal. 2014) (approving a TCPA class action settlement of a range
“of no less than $2.3 million and no more than $3.3 million”);
Penzer v. Transp. Ins. Co., 545 F.3d 1303, 1305 n.1 (11th Cir.
2008) (describing a TCPA settlement agreement in the amount of
$12 million judgment, which was calculated by multiplying the
24,000 unsolicited facsimile advertisements it transmitted by
$500); Hinman v. M & M Rental Ctr., Inc., 596 F. Supp. 2d 1152
(N.D. Ill. 2009) (granting plaintiffs’ motion for summary
judgment in part, and finding the class entitled to statutory
damages in the amount of $3,862,500, based upon 7,725
unsolicited advertisements; and, following summary judgment,
ultimately approving a settlement of $5,817,150); Yuri R.
Linetsky, Protection of “Innocent Lawbreakers”: Striking the
Right Balance in the Private Enforcement of the Anti “Junk Fax”
Provisions of the Telephone Consumer Protection Act, 90 NEB. L.
REV. 70, 93 (2011) (citing the multitude of cases entering
million dollar-plus judgments in TCPA actions).

This Court,

therefore, finds that the Plaintiff has proved Defendants liable
for statutory damages in the amount of $22,405,000, and summary

55

judgment will be entered against David/Randall Associates, Inc.
in that amount. 20
VI.

CONCLUSION
For all of these reasons, Defendants’ motion for

decertification will be denied, Plaintiff’s motion for classwide summary judgment will be granted as to David/Randall
Associates, Inc., and denied as to Raymond Miley, III.
Therefore, the Court will enter Judgment in favor of the
Plaintiff Class and against Defendant David/Randall Associates,
Inc. in the amount of $22,405,000.

An accompanying Order will

be entered.

March 27, 2015
Date

20

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

Counsel are requested to confer, as discussed at oral argument
of this motion, whether a judgment in a significantly smaller
sum would likely provide full statutory recovery to all probable
members of the Class who respond and file claims. For example,
if the typical “yield” of the notice of a class claims process
is assumed to be 15%, based on experience, then a judgment fund
of 15% of $22,405,000, which is $3,360,750, may suffice, subject
to future adjustment based on claims approved. Counsel are
invited to discuss the viability of such a mechanism to
implement this judgment in the class action context.
56