WATKINS v. WELLS FARGO BANK, N.A.
OPINION. Signed by Judge Renee Marie Bumb on 6/2/2017. (tf, )
[Docket No. 20]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 15-5712 (RMB/KMW)
WELLS FARGO BANK, N.A.,
Andrew M. Milz, Esq.
Flitter Milz, P.C.
525 Route 73 South, Suite 200
Marlton, New Jersey 08053
Attorney for Plaintiff James Watkins
Kellie A. Lavery, Esq.
Reed Smith, LLP
136 Main Street, Suite 250
Princeton, New Jersey 08543
Attorney for Defendant Wells Fargo Bank, N.A.
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Motion for
Summary Judgment [Docket No. 20] by Defendant Wells Fargo, N.A.
(“Wells Fargo” or the “Defendant”).
Wells Fargo seeks the entry
of summary judgment in its favor on all claims asserted against
it by Plaintiff James Watkins (the “Plaintiff”).
considered the parties’ submissions, for the reasons set forth
herein, the motion will be denied.
FACTUAL AND PROCEDURAL BACKGROUND1
On January 14, 2010, Plaintiff opened a credit card account
with Wachovia Bank.
Def. SOMF ¶ 10.
It is unclear whether
Plaintiff provided his cell phone number to Wachovia Bank as
part of his credit card application in January 2010.
Remarkably, Plaintiff’s credit card application is absent from
Instead, Defendant relies upon a February 2015
entry in its call logs as evidence that Plaintiff provided his
cell phone number when he applied for his credit card.
Cert. Ex. 9 [Docket No. 20-12].
According to Plaintiff,
however, he only gave Wachovia his home phone number in his
Pl. Dep. Tr. 45:8-17 [Docket No. 20-4].
He has no
recollection of giving his cell phone number to Wachovia.
Shortly thereafter, Plaintiff’s credit card account was
transferred from Wachovia to Wells Fargo.
Def. SOMF ¶ 15.
Plaintiff does not remember ever providing Wells Fargo with his
cell phone number.
Pl. Dep. Tr. 53:17-20.
Due to family
illness and financial hardships, Plaintiff was unable to timely
pay his credit card bills and his account is now in collection.
To the extent that the parties agree on particular facts,
the Court relies upon Defendant’s Statement of Undisputed
Material Facts (“Def. SOMF”) [Docket No. 20-2] and Plaintiff’s
Statement of Undisputed Material Facts (“Pl. SOMF”) [Docket
No. 24-1]. The Court will rely upon the record for disputed
Def. SOMF ¶ 8; Pl. Dep. Tr. 40:11-41:6.
Plaintiff believes he
owes roughly $7,000 to $8,000 on his Wells Fargo credit card
Def. SOMF ¶ 9.
From January 14, 2010, the date on which Plaintiff opened
his credit card account, and September 22, 2011, Wells Fargo
called Plaintiff using an automatic telephone dialing system
(“ATDS”) on his home phone number only.
Pl. SOMF ¶ 12.
Fargo began calling Plaintiff’s cell phone using an ATDS on
September 23, 2011.
Id. ¶ 13.
Between September 23, 2011 and
July 1, 2015, in an attempt to collect on his account, Wells
Fargo has placed 157 calls to Plaintiff’s cell phone using an
automatic telephone dialing system (“ATDS”).
Def. SOMF ¶¶ 6, 7.
Defendant claims that it had Plaintiff’s prior express consent
to make such calls and that his consent had never been revoked.
Plaintiff, on the other hand, contends that he never gave
Wachovia or Wells Fargo his cell phone number and that, to the
extent any consent could have been implied, he revoked that
consent on multiple occasions.
Specifically, Plaintiff testified that in 2010 or 2011, he
received a call from Wells Fargo on his cell phone as he and his
wife, Paula Watkins, were about to sit down for dinner.
According to Plaintiff, he told the Wells Fargo representative
not to call his cell phone and repeatedly asked how Wells Fargo
had obtained his cell phone number.
Pl. Dep. Tr. 55:4-59:6.
Wells Fargo did not place any calls to Plaintiff’s cell phone in
Def. SOMF ¶ 20.
Plaintiff answered only one incoming
call to his cell phone from Wells Fargo in 2011, on September
Def. SOMF ¶¶ 21-23.
Although Plaintiff could not
recall the specific dates of the calls, he testified that on
every occasion he spoke with Wells Fargo, he told Wells Fargo to
stop calling him on his cell phone.
Pl. Dep. Tr. 65:12-70:23.
Various Wells Fargo Cardmember Agreement and Disclosure
Statements provide that account holders consent to being
contacted by Wells Fargo using ATDS.
Oct. 2010 Agreement ¶ 26,
Lavery Cert. Ex. 4 [Docket No. 20-7]; July 2011 Agreement ¶ 26
[Docket No. 20-8]; Sept. 2014 Agreement ¶ 26 [Docket No. 20-9].
Plaintiff, however, notes that there is no evidence in the
record that establishes that these particular agreements
governed his Wells Fargo account or were sent to him in
connection with his account.
Wells Fargo’s call log reflects a January 7, 2013 call to
The entry reads: “PRIMARY CELL QUALITY CHANGED FROM
CELL – MANUAL ONLY TO CELL PHONE OPT IN BY WATKINS, JAMES E.”
Lavery Cert. Ex. 12 [Docket No. 20-15].
Candace Cartwright, a
collection manager at Wells Fargo, testified that this entry
means that “the primary cell quality was changed from cell
manual only to cell opt-in by James E. Watkins.”
Dep. Tr. 123:16-20 [Docket No. 25-3].
She further explained
that, for such an entry to come about, the Wells Fargo
representative “would have had to read the cell consent and then
he would have clicked yes after the customer said yes.”
Similarly, Wells Fargo’s call audit history reflects the
notations “cell quality” and “good” in connection with a
February 1, 2015 call to Plaintiff’s cell phone.
Ex. 10 [Docket No. 20-13].
A system entry for the February 1,
2015 call states: “Cell Consent date for [Plaintiff’s cell phone
number] is the same as the date the credit card account opened.”
Lavery Cert. Ex. 9.
It is Wells Fargo’s policy and procedure to record if a
consumer revoked consent to be called.
Def. SOMF ¶ 54.
Wells Fargo representative did not record a customer’s
revocation of consent, the representative would be in breach of
Wells Fargo’s policies.
Id. ¶ 55.
Based upon these facts, on July 23, 2015, Plaintiff filed
the instant litigation in federal court, alleging a violation of
the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.
(“TCPA”) [Docket No. 1].
Wells Fargo’s audit history records
reflect that Plaintiff revoked consent to be called on his cell
phone on August 20, 2015, roughly three weeks after he commenced
Def. SOMF ¶ 75.
SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
A fact is “material” if it will “affect the
outcome of the suit under the governing law[.]”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute is
“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”
In determining the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”
Meyer v. Riegel Prods.
Corps., 720 F.2d 303, 307 n. 2 (3d Cir. 1983).
However, a mere
“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.
Anderson, 477 U.S. at 252.
Moreover, “conclusory, self-serving affidavits are insufficient
to withstand a motion for summary judgment.”
Kirleis v. Dickie,
McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009)
Furthermore, a court need not adopt the
version of facts asserted by the nonmoving party if those facts
are “utterly discredited by the record [so] that no reasonable
jury” could believe them.
Scott v. Harris, 550 U.S. 372, 380
In the face of such evidence, summary judgment is still
appropriate “where the record . . . could not lead a rational
trier of fact to find for the nonmoving party[.]”
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ.
Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
Anderson, 477 U.S. at 250 (citing Fed. R. Civ.
In the face of a properly supported motion for
summary judgment, the nonmovant’s burden is rigorous: he “must
point to concrete evidence in the record”; mere allegations,
conclusions, conjecture, and speculation will not defeat summary
Orsatti v. New Jersey State Police, 71 F.3d 480, 484
(3d Cir. 1995); accord Jackson v. Danberg, 594 F.3d 210, 227
(3d Cir. 2010) (citing Acumed LLC v. Advanced Surgical Servs.,
Inc., 561 F.3d 199, 228 (3d Cir. 2009) (“[S]peculation and
conjecture may not defeat summary judgment.”)).
“Congress passed the TCPA to protect individual consumers
from receiving intrusive and unwanted calls.”
Gager v. Dell
Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013) (citing Mims
v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012)).
passing the Act, Congress was animated by ‘outrage over the
proliferation’ of prerecorded telemarketing calls to private
residences, which consumers regarded as ‘an intrusive invasion
of privacy’ and ‘a nuisance.’”
Leyse v. Bank of Am. Nat. Ass’n,
804 F.3d 316, 325 (3d Cir. 2015) (quoting Telephone Consumer
Protection Act of 1991, Pub. L. No. 102-243, § 2(5)-(6), (10),
105 Stat. 2394).
In relevant part, “[t]he [TCPA] prohibits any person,
absent the prior express consent of a telephone-call recipient,
from ‘mak[ing] any call . . . using any automatic telephone
dialing system . . . to any telephone number assigned to a
paging service [or] cellular telephone service.”
Co. v. Gomez, 136 S. Ct. 663, 666-67 (2016), as revised (Feb. 9,
2016) (quoting 47 U.S.C. § 227(b)(1)(A)(iii)).
The burden of
establishing consent is on the defendant creditor.
Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355, 366
(3d Cir. 2015) (quoting In the Matter of Rules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C.R.
559, 565 (2008)).
Additionally, as a remedial statute, the TCPA
“should be construed to benefit consumers.”
Gager, 727 F.3d
The TCPA creates a private right of action for violations
of the statute and allows a successful plaintiff to recover his
actual monetary loss or $500 for each violation, whichever is
47 U.S.C. § 227(b)(3)(B).
Where a defendant
“willfully or knowingly” violated the TCPA, a court may, in its
discretion, award treble damages.
47 U.S.C. § 227(b)(3).2
Here, the parties do not dispute that Wells Fargo called
Plaintiff’s cell phone 157 times using an ATDS between September
23, 2011 and July 1, 2015.
Def. SOMF ¶¶ 3, 6.
Defendant concedes that “[t]hese calls would be violative of the
TCPA, unless the autodialed calls were ‘made with the prior
express consent’ of the Plaintiff.”
Def. Br. at 4 [Docket
Although the parties have not addressed the issue of
standing, it appears that Plaintiff may only recover damages for
calls that “he, and not an answering machine, answered.” Leyse
v. Bank of Am., 2016 WL 5928683, at *5 (D.N.J. Oct. 11, 2016)
(citing Leyse, 804 F.3d at 327 (“[I]t is the actual recipient,
intended or not, who suffered the nuisance or invasion of
privacy. The burden of proof will, therefore, be on [plaintiff]
in the District Court, to demonstrate that he answered the
telephone when the robocall was received.”)); see also Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) (“Congress’ role in
identifying and elevating intangible harms does not mean that a
plaintiff automatically satisfies the injury-in-fact requirement
whenever a statute grants a person a statutory right and
purports to authorize that person to sue to vindicate that
right. Article III standing requires a concrete injury even in
the context of a statutory violation.”). The Court need not
resolve this issue now.
As such, the only issues remaining are whether
Plaintiff provided prior express consent to be called on his
cell phone using an ATDS and, if so, whether that consent was
A. Prior Express Consent
Wells Fargo contends that Plaintiff gave his prior express
consent to be called on his cell phone by Wells Fargo using an
ATDS on at least three occasions.
First, Wells Fargo claims
that Plaintiff provided his cell phone number to Wachovia when
he opened his credit card on January 14, 2010.
If true, this
would be sufficient to establish prior express consent for
purposes of the TCPA.
See 23 F.C.C.R. at 564 (“We conclude that
the provision of a cell phone number to a creditor, e.g., as
part of a credit application, reasonably evidences prior express
consent by the cell phone subscriber to be contacted at that
number regarding the debt.”).
In support, Defendant relies upon its answers to
interrogatories and two 2015 system entries.
See Answers to
Interrogatories ¶¶ 2, 6, 7 [Docket No. 20-6]; Lavery Cert.
Ex. 9; Lavery Cert. Ex. 10.3
The Answers to Interrogatories rely
Plaintiff argues that Wells Fargo’s records cannot be
considered by this Court on summary judgment on the grounds of
hearsay. Plaintiff is incorrect. “[T]he rule in this circuit
is that hearsay statements can be considered on a motion for
summary judgment if they are capable of being admissible at
trial.” Fraternal Order of Police, Lodge 1 v. City of Camden,
upon the 2015 system entries.
The February 1, 2015 entry
states: “Cell Consent date for [Plaintiff’s cell phone number]
is the same as the date the credit card account opened.”
Cert. Ex. 9; see also Lavery Cert. Ex. 10.4
Plaintiff vigorously contests that he gave Wachovia or
Wells Fargo his cell phone number upon opening his credit card
In his deposition, Plaintiff testified that he gave
Wachovia his home phone number in connection with his credit
card application, but that he had no recollection of providing
his cell phone number.
Pl. Dep. Tr. 45:8-17, 54:14-16.
certification submitted in connection with his opposition to
Defendant’s motion for summary judgment, Plaintiff avers that it
is has long been his practice not to provide his cell phone
number to creditors and to instead provide his home phone
842 F.3d 231, 238 (3d Cir. 2016) (emphasis in original) (quoting
Stelwagon Mfg. Co. v. Tarmac Roofing Sys., 63 F.3d 1267, 1275
n. 17 (3d Cir. 1995)). The proponent of the disputed evidence
“need only ‘explain the admissible form that is anticipated.’”
Id. (quoting Fed. R. Civ. P. advisory committee’s note to 2010
amendment). Here, Defendant has proffered that these documents
are capable of being admissible at trial as business records
under Federal Rule of Evidence 803(6). The Court agrees and
finds that it may properly consider Wells Fargo’s system
entries, call logs, and audit history in resolving the motion
for summary judgment.
The Court notes that when Ms. Cartwright was questioned
regarding these entries, she testified that she did not know
where the information came from or why it stated that
Plaintiff’s cell consent date was the same date the credit card
account was opened. Cartwright Dep. Tr. 73:15-25.
Pl. Cert. ¶¶ 18-19 [Docket No. 24-3].5
evidence--Plaintiff’s credit card application--is conspicuously
absent from the summary judgment record.
Based on the record
before this Court and given that the burden of establishing
consent rests upon Defendant, the Court finds that Plaintiff has
raised a genuine dispute of material fact--albeit a slim one-regarding whether he provided Wachovia his cell phone number
when he applied for his credit card account in January 2010 and,
Defendant attacks Plaintiff’s certification as a
self-serving affidavit “concocted to fabricate a farcical
factual dispute and defeat summary judgment.” Def. Reply Br.
at 1-4 [Docket No. 25]. As the Court noted above, “conclusory,
self-serving affidavits are insufficient to withstand a motion
for summary judgment.” Kirleis, 560 F.3d at 161. “Instead, the
affiant must set forth specific facts that reveal a genuine
issue of material fact.” Id. Additionally, the Third Circuit
has explained that “a party may not create a material issue of
fact to defeat summary judgment by filing an affidavit disputing
his or her own sworn testimony without demonstrating a plausible
explanation for the conflict.” Jiminez v. All Am. Rathskeller,
Inc., 503 F.3d 247, 251 (3d Cir. 2007) (quoting Baer v. Chase,
392 F.3d 609, 624 (3d Cir. 2004)). “A sham affidavit cannot
raise a genuine issue of fact because it is merely a variance
from earlier deposition testimony, and therefore no reasonable
jury could rely on it to find for the nonmovant.” Id. at 253.
Here, however, Plaintiff’s certification, insofar as the Court
relies upon it in resolving the instant motion, is not
inconsistent with his prior sworn testimony. Moreover, it does
not merely regurgitate the pleadings in conclusory fashion.
Rather, Plaintiff’s certification merely elaborates on the
testimony provided at his deposition and sets forth testimony
Plaintiff would likely provide at trial. Accordingly, the Court
will not completely disregard Plaintiff’s certification, as
requested by Defendant, and will consider the contents of
Plaintiff’s certification on summary judgment as appropriate.
thus, whether he consented to be called on his cell phone at
Additionally, Defendant refers to three account agreements
that provide that customers consent to being called on the phone
number provided using an ATDS.
See Lavery Cert. Ex. 4; Lavery
Cert. Ex. 5; Lavery Cert. Ex. 6.
Wells Fargo argues that these
agreements govern Plaintiff’s account.
Plaintiff disputes that
Defendant has established that these account agreements governed
As Plaintiff correctly argues, there is no
evidence in the record establishing that these agreements govern
Plaintiff’s account or that he was even provided with the
account agreements in question.
The agreements do not appear to
be specific to Plaintiff’s account and are not signed by
Resolving all inferences in Plaintiff’s favor at
this juncture, the Court finds that Defendant has not carried
its burden of establishing consent on the basis of the account
Finally, Defendant contends that Plaintiff provided express
consent to be called on his cell phone on three separate calls
with Wells Fargo representatives on February 23, 2011, January
7, 2013, and February 1, 2015.
To establish consent on these
dates, Defendant relies upon its call logs and Ms. Cartwright’s
deposition testimony interpreting the log entries.
The call log for February 23, 2011 reads: “GENESYS PHONE
[Plaintiff’s cell phone number] TRANSFER TO PRIMARY CELL.”
Cert. Ex. H [Docket No. 24-9].
Ms. Cartwright testified that
this entry means that the Wells Fargo representative verified
Plaintiff’s information on this call.
Cartwright Dep. Tr.
The system entry, however, does not “say
anything about contacting [Plaintiff] on his cell phone with an
automated telephone dialing system.”
as Plaintiff argues and Ms. Cartwright conceded, the system
entry does not indicate where the cell phone number came from or
whether Plaintiff himself provided that number to Wells Fargo.
Indeed, at times, Wells Fargo would capture
Plaintiff’s phone number using an Automated Number Indicator
(“ANI”), a caller identification technology.
As Ms. Cartwright testified, Wells Fargo would not consider
obtaining a customer’s phone number from an ANI to constitute
prior express consent for purposes of the TCPA.
The January 7, 2013 call log entry states: “PRIMARY CELL
QUALITY CHANGED FROM CELL – MANUAL ONLY TO CELL PHONE OPT IN BY
WATKINS, JAMES E.”
Lavery Cert. Ex. 12.
testified that this entry indicates that “the primary cell
quality was changed from cell manual only to cell opt-in by
James E. Watkins.”
Cartwright Dep. Tr. 123:16-20.
testified that for such an entry to have been generated, the
Wells Fargo “team member would have had to read the cell consent
[to Plaintiff] and then he would have clicked yes after the
customer said yes.”
reflected in the system entry itself.
This, however, is not
entry does not mention Plaintiff’s cell phone number, how the
number was obtained, or consent to be called on Plaintiff’s cell
phone using an ATDS.
Id. 115:5-11, 124:11-14.
The February 1, 2015 entry states: “Cell Consent date for
[Plaintiff’s cell phone number] is the same as the date the
credit card account opened.”
Lavery Cert. Ex. 12.
As the Court
previously noted, Ms. Cartwright testified that she does not
know where this information came from.
Cartwright Dep. Tr.
Plaintiff avers in his certification that he has no
recollection of Wells Fargo ever reading him a cell consent
message or asking him to verify his cell phone number.
Cert. ¶¶ 14, 15.
He also certified that, even if he had been
asked, he never would have consented to be called on his cell
phone by Wells Fargo using an ATDS.
Id. ¶¶ 14-17.
his deposition, Plaintiff testified that each time he spoke with
Wells Fargo, he told them to stop calling his cell phone.
Dep. Tr. 65:12-67:24.
Plaintiff’s deposition testimony and sworn certification
are sufficient to narrowly raise a genuine dispute of material
fact as to whether he consented to receiving automated calls
from Wells Fargo on his cell phone.
While the great weight of
the evidence suggests that Plaintiff provided his cell phone
number to Wells Fargo at some point in time, this Court must not
weigh the evidence on summary judgment.
There are clearly
genuine disputes of fact as to whether and, if so, when
Plaintiff consented to being called on his cell phone by Wells
Fargo using an ATDS.
by the jury.
These questions of fact must be resolved
On this record, summary judgment is not
appropriate and must be denied.
B. Revocation of Consent
Even assuming that Defendant carried its burden of
establishing that Plaintiff consented at some point to being
called on his cell phone by Wells Fargo using an ATDS, Plaintiff
is nonetheless permitted to revoke such consent.
F.3d at 271-72.
Defendant contends that there is no evidence in
the record from which a jury could conclude that Plaintiff
revoked his consent to be called by Wells Fargo on his cell
phone using an ATDS.
Plaintiff, naturally, disagrees and
contends that he repeatedly told Wells Fargo to stop calling him
on his cell phone, thereby revoking any consent that Wells Fargo
may have believed he had previously given.
Plaintiff testified that he received a call from Wells
Fargo on his cell phone just as he and his wife were sitting
down for dinner at some point in 2010 or 2011.
Plaintiff, on this call, he explicitly told the Wells Fargo
representative not to call his cell phone and asked how Wells
Fargo had obtained the number in the first place.
Plaintiff’s wife testified that she heard
Plaintiff tell the representative not to call his cell phone.
Paula Watkins Dep. Tr. 29:1-33:3 [Docket No. 20-11].
only answered one call from Wells Fargo on his cell phone in
2010 or 2011, on September 26, 2011.
Def. SOMF ¶¶ 20-22.
Plaintiff also testified that every time he spoke with a Wells
Fargo representative, he told the representative to stop calling
his cell phone.
Pl. Dep. Tr. 65:12-67:24.
All calls made to
Plaintiff on any telephone number, as well as the dates on which
Plaintiff was called by Wells Fargo and answered, are documented
in Wells Fargo’s call logs.
Def. SOMF ¶¶ 1, 21-23; Milz Cert.
Ex. E [Docket No. 24-6].
Defendant refutes Plaintiff’s testimony with its call
records, which do not reflect that Plaintiff revoked consent to
be called on his cell phone at any time prior to August 20,
2015, even though Wells Fargo’s policies and procedures require
its representatives to record if a customer revokes consent to
Def. SOMF ¶ 54.
Failure to document revocation of
consent is a violation of Wells Fargo’s policies and procedures.
Id. ¶ 55.
It is also Wells Fargo’s policy to honor verbal
requests to cease calls to a cell phone.
Id. ¶¶ 57-58.6
Ms. Cartwright testified, however, that errors in documenting
revocations of consent happen, albeit rarely.
While Defendant may use this evidence to contradict and
undermine Plaintiff’s testimony at trial, it is for the jury at
trial--rather than this Court on summary judgment--to evaluate
such arguments and determine whether to believe Plaintiff or
Plaintiff’s testimony establishes a genuine dispute
of fact as to whether Plaintiff told Wells Fargo to stop calling
his cell phone, thereby revoking any consent previously granted.
Although Wells Fargo’s records do not document that Plaintiff
revoked consent, Plaintiff had sufficiently raised a slim issue
of fact that must be resolved by the jury.
Resolving all inferences and doubts in favor of Plaintiff,
as it must on summary judgment, the Court finds that there are
genuine disputes of material fact regarding both consent and
Plaintiff contends that Defendant “cynically argues that
the Court should recognize the absence of a business record
noting revocation of consent, and somehow credit a negative as
some sort of proof. . . . This argument is nonsense[.]” Pl.
Opp. Br. at 13 [Docket No. 24] (emphasis in original). The
Court disagrees with Plaintiff’s characterization and notes that
the Federal Rules of Evidence provide that the absence of a
record of a regularly conducted activity may be admissible to
prove that the matter did not occur. Fed. R. Evid. 803(7).
revocation of consent.
For these reasons, Defendant’s motion
for summary judgment as to Plaintiff’s TCPA claim is denied.
C. Treble Damages
Defendant also seeks summary judgment on Plaintiff’s claim
for treble damages.
Under the TCPA, a court may award treble
damages “[i]f the court finds that the defendant willfully or
knowingly violated” the TCPA.
47 U.S.C. § 227(b)(3).
Fargo contends that the absence of any business records
documenting revocation of consent establishes that it could not
have willfully or knowingly violated the TCPA.
evidence does not appear to support a finding that any TCPA
violation by Defendant in this case is willful or knowing--in
light of Wells Fargo’s policy to record all revocations of
consent and the absence of any such record--such a determination
at this juncture would be premature and improper.
If the jury
were to credit Plaintiff’s testimony that he repeatedly told
Wells Fargo not to call his cell phone and Wells Fargo
nonetheless continued to do so, the jury could find Defendant’s
conduct to be willful or knowing.
Accordingly, as there are
questions of fact regarding both consent and revocation of
consent which must be resolved by the jury, the Court denies
summary judgment as to Plaintiff’s request for treble damages
without prejudice to renewing the argument at trial, as
For the reasons set forth above, the Court will deny
Defendant’s Motion for Summary Judgment.
Trial in the
above-captioned matter shall commence on September 11, 2017 at
9:00 a.m. in Courtroom 3D, Mitchell H. Cohen Federal Courthouse,
4th and Cooper Streets, Camden, New Jersey.
Order shall issue on this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: June 2, 2017
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