BROKING v. GREEN BROOK BUICK GMC SUZUKI

Filing 100

OPINION filed. Signed by Judge Brian R. Martinotti on 8/22/2017. (mps)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

TIMOTHY BROKING, on behalf of himself and
all others similarly situated,
Plaintiff,
v.
GREEN BROOK BUICK GMG SUZUKI and
BLUE BONNET TECHNOLOGY, LLC,
Defendants,
and
GREEN BROOK BUICK GMG SUZUKI,
Defendant/Third-Party Plaintiff,
v.
BLUE BONNET TECHNOLOGY, LLC,
Third-Party Defendant.

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Civil Action No. 15-1847 (BRM)(LHG)

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court are Defendant Green Brook Buick GMC, Inc. d/b/a Green Brook
Mitsubishi’s (“Green Brook”) Motion for Summary Judgment (ECF No. 60), Plaintiff Timothy
Broking’s (“Plaintiff” or “Broking”) Motion for Summary Judgment (ECF No. 63) and Motion to
Certify Class (ECF No. 66), and Defendant Blue Bonnet Technology, LLC’s (“Blue Bonnet”)
Motion for Summary Judgment (ECF No. 61). 1 Pursuant to Federal Rule of Civil Procedure 78(a),
the Court heard oral argument on August 1, 2017. For the reasons set forth below, Green Brook’s

1

While Blue Bonnet does not join Green Brook’s Motion, the issue of liability under the TCPA
applies to both parties insofar as neither would be liable to Plaintiff if no TCPA violation occurred.
1

Motion for Summary Judgment is GRANTED; Broking’s Motion for Summary Judgment is
DENIED; Broking’s Motion to Certify Class is DENIED AS MOOT; and Blue Bonnet’s Motion
for Summary Judgment is GRANTED IN PART and DENIED IN PART.
I.

FACTUAL BACKGROUND

In this action brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227
(“TCPA”), Plaintiff asserts claims against Defendants Green Brook and Blue Bonnet (collectively,
“Defendants”) for alleged violations of the TCPA. The case arises from one automated call made
to Plaintiff’s residence on December 15, 2014. The full content of the pre-recorded phone call was:
This is Green Brook Mitsubishi calling regarding your last service
visit. Please press 1 to speak to Mr. Gates or call us at 732-653-9500
and ask for Mr. Gates. You may press 9 to be removed from this
calling list. Thanks and have a great rest of your day from all of us
here at Green Brook Mitsubishi.
(Green Brook Br. (ECF No. 60-3) at 4-5.) 2
A. Green Brook and Blue Bonnet
Green Brook hired Blue Bonnet to conduct a robocall campaign (the “Campaign”) in
December 2014. (Green Brook’s Sec. Am. Ans. (ECF No. 55) at 15 and Blue Bonnet’s Br. (ECF
No. 62) at 2 ¶ 4.) 3 Peter Posterino (“Posterino”), a sales manager for Green Brook, had a
longstanding relationship with Blue Bonnet and its principals and contacted them to arrange the
logistics of the Campaign. (ECF No. 60-3 at 6 ¶¶ 18-19.) On December 3, 2014, Posterino signed

2

The parties were not aware of the content of the call until after Green Brook answered
interrogatories and all depositions took place. (Green Brook Reply (ECF No. 88) at 4.)
3

The parties dispute the nature of the Campaign, as Plaintiff and Blue Bonnet characterize it as a
marketing/sales campaign (ECF No. 62 at 2 ¶ 4 and Broking Statement of Material Facts (ECF
No. 65) at 4 ¶ 8), while Green Brook contends the Campaign was “not for telemarketing purposes”
as the content of the call was to determine customer satisfaction with service visits (Green Brook
Opp. (ECF No. 77) at 3 ¶ 4).
2

a hold harmless agreement (the “Hold Harmless Agreement”), which stated Green Brook would
indemnify Blue Bonnet for all reasonable costs and expenses that arose from any claim related to
the Campaign. (ECF No. 62-1.) Green Brook’s owner and president, David Ferraez (“Ferraez”),
testified the agreement Posterino signed was not valid because only Ferraez had authority to sign
contracts on Green Brook’s behalf and that he never saw nor was he aware of the Hold Harmless
Agreement until after this litigation began. (ECF No. 77 at 27:4-11, 46:13-47:12.)
Green Brook paid Blue Bonnet $10,000 for, inter alia, three days of phone calls, a “7000
piece mailer to be [sent] the week of 12/08/2014,” and the provision of two Blue Bonnet staff
members for two of the three days of the phone portion of the Campaign. (Invoice #2115 (ECF
No. 60-11).) Green Brook provided Blue Bonnet with a customer list that contained the phone
numbers used in the Campaign. (ECF No. 62 at 2 ¶ 5 and ECF No. 77 at 3 ¶ 5.) During the course
of the Campaign, 4739 calls were made from Green Brook’s dealership site. (ECF No. 60-3 at 7 ¶
22, ECF No. 62 at 3 ¶ 7, ECF No. 77 at 3-4 ¶ 7, and Broking Statement of Material Facts in Opp.
(ECF No. 80) at 6 ¶ 22.) The Parties stipulate Green Brook used an automatic telephone dialing
system (“ATDS”) during the Campaign. (ECF No. 62 at 3 ¶ 9, ECF No. 65 at 4 ¶ 6, and Green
Brook Opp. (ECF No. 75) at 3 ¶ 6.)
B. Green Brook’s Call to Plaintiff
Plaintiff alleges in his Amended Complaint that he “received numerous automated
telephone calls to his residential phone number” related to the Campaign (ECF No. 24 ¶ 12),
though he later testified at his deposition that he received one. (ECF No. 65 at 4 ¶ 8 and ECF No.
80 at 3 ¶ 7.) He pled the “purpose of the calls was to persuade [him] to buy a car from Green
Brook” (ECF No. 24 ¶ 12) but later testified he could not recall the content of the one call he
received. (ECF No. 60-7 at 55:16-56:17 and ECF No. 80 at 4 ¶ 10.) He also pled he had no prior

3

business relationship with Green Brook or Blue Bonnet (ECF No. 24), but at his deposition he
testified his car was serviced for approximately thirty days at Green Book after an accident at the
recommendation of his insurer. (ECF No. 65 at 3 ¶¶ 3-5 and ECF No. 80 at 2-3 ¶¶ 2-4.) The service
to Plaintiff’s vehicle took place between 2011 and December 14, 2014. (ECF No. 60-7 at 20:2225.). While Green Brook was servicing Plaintiff’s car, Plaintiff called Green Brook at least two
times to inquire about the status of the repairs. (Id. at 33:2-5.)
Plaintiff received the phone call giving rise to this lawsuit on December 15, 2014, at 3:03
p.m. (ECF No. 65 at 4 ¶ 8 and ECF No. 80 at 3 ¶ 7.) Plaintiff’s residential phone number is, and
was at the time of the calls, registered on the national “Do Not Call” Registry. (ECF No. 24 ¶ 18.)
He answered the phone after one or two rings but could not recall the content of the phone call at
his deposition. (ECF No. 60-3 at 4 ¶ 11 and ECF No. 80 at 4 ¶ 10.) Through discovery, it was
revealed Plaintiff and Green Brook were not aware of the full content of the pre-recorded message
until after Green Brook answered interrogatories and all depositions were taken. (ECF No. 88 at
4-5.)
Plaintiff testified he called the number on his caller ID device three times to determine who
had placed the call. (ECF No. 60-3 at 5 ¶ 14 and ECF No. 80 at 5 ¶ 13.) Plaintiff reached someone
at Green Brook on his third attempt, and he told the person, “I’ve never done any business with
your company. How did you get my number?” (ECF No. 60-3 at 5 ¶ 15 and ECF No. 80 at 5 ¶ 14.)
The Green Brook employee apologized, and Green Brook made no further calls to Plaintiff nor
had any additional contact with him. (ECF No. 60-3 at 5-6 ¶¶ 15-16 and ECF No. 80 at 5 ¶¶ 145.)

4

II.

PROCEDURAL BACKGROUND

On March 12, 2015, Plaintiff filed his Complaint in this action. (ECF No. 1.) Green Brook
filed a motion to dismiss the Complaint (ECF No. 4), which this Court denied (ECF No. 13). 4
Plaintiff filed the Amended Complaint on January 7, 2016. (ECF No. 24.) Plaintiff asserts claims
against both Green Brook and Blue Bonnet and against each pleaded in the alternative on behalf
of himself and a putative class made up of the recipients of 4,108 calls completed during the call
campaign. (ECF No. 24 and Broking Br. (ECF No. 64) at 2-3.) Plaintiff seeks damages of
$6,685,000.00, calculated as $1,500.00—the statutory amount permitted for each willful
violation—multiplied by 4457 calls attempted during the Campaign. (ECF No. 64 at 2-3 (citing
47 U.S.C. § 227(b)(3).)
Green Brook filed a Crossclaim against Blue Bonnet, alleging Blue Bonnet is liable for any
injury to Plaintiff and asserts claims against Blue Bonnet for: negligence (Counts I and II);
negligent or intentional misrepresentation (Count III); breach of contract (Count IV); and
indemnification (Count V). (ECF No. 55 at 15-20.) Blue Bonnet likewise filed a Crossclaim,
arguing: Green Brook is liable for: breach of contract (Count I), breach of the implied covenant of
good faith and fair dealing (Count II), and seeking declaratory relief (Count III). (ECF No. 28 at
8-10.)
III.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

4

The Honorable Michael A. Shipp, U.S.D.J. issued the order denying Green Brook’s motion to
dismiss. The case was later reassigned to the undersigned. (ECF No. 40.)
5

of law.” Fed. R. Civ. P. 56(c). A factual dispute is genuine only if there is “a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving party,” and it is material only if it
has the ability to “affect the outcome of the suit under governing law.” Kaucher v. Cty. of Bucks,
455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary
judgment. Anderson, 477 U.S. at 248. “In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any weighing of the evidence; instead,
the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in
his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson,
477 U.S. at 255)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
(1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
The party moving for summary judgment has the initial burden of showing the basis for its
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party will bear the
burden of persuasion at trial, that party must support its motion with credible evidence . . . that
would entitle it to a directed verdict if not controverted at trial.” Id. at 331. On the other hand, if
the burden of persuasion at trial would be on the nonmoving party, the party moving for summary
judgment may satisfy Rule 56’s burden of production by either (1) “submit[ting] affirmative
evidence that negates an essential element of the nonmoving party’s claim” or (2) demonstrating
“that the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” Id. Once the movant adequately supports its motion pursuant to Rule
56(c), the burden shifts to the nonmoving party to “go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Id. at 324; see also Matsushita, 475

6

U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the
merits of a party’s motion for summary judgment, the court’s role is not to evaluate the evidence
and decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be “no genuine issue as to any material fact,” however, if a party fails “to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23. “[A] complete
failure of proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.
1992).
IV.

DECISION

Congress enacted 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). The TCPA
prohibits a party from using an ATDS “to initiate any telephone call to any residential telephone
line using an artificial or prerecorded voice to deliver a message without the prior express consent
of the called party,” unless the call falls within one of the statute’s enumerated exemptions. 47
U.S.C. § 227(b)(1)(B). The exemptions include “calls that are not made for a commercial purpose”
and commercial calls that “do not include the transmission of any unsolicited advertisement.” 47
U.S.C. § 227(b)(2)(B).
“[A]utodialed calls—to both cellular phones and land-lines—are lawful so long as the
recipient has granted permission to be called at the number which they have given, absent
instructions to the contrary.” Gager, 727 F.3d at 268 (citations omitted). Pursuant to the statute,

7

an ATDS means “equipment which has the capacity . . . (A) to store or produce telephone numbers
to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47
U.S.C. § 227(a)(1). Further, the TCPA creates a private cause of action by allowing a “person or
entity” to bring a private right of action to enjoin violators of the TCPA and “recover for actual
monetary loss from such a violation, to receive $500 in damages for each such violation, whichever
is greater.” 47 U.S.C. § 227(b)(3).
Before turning to the parties’ respective motions, the Court notes the Amended Complaint
is replete with inaccuracies. Plaintiff claimed he received several calls (ECF No. 24 ¶ 12) before
he ultimately admitted he received one. (ECF No. 65 at 4 ¶ 8 and ECF No. 80 at 3 ¶ 7.) He claimed
the call encouraged him to buy a car (ECF No. 24 ¶ 12) though later testified he could not
remember what the call said. (ECF No. 60-7 at 55:16-56:17 and ECF No. 80 at 4 ¶ 10.) He alleged
he had no prior dealings with Green Brook (ECF No. 24) before he admitted his car was serviced
there for nearly a month. (ECF No. 65 at 3 ¶¶ 3-5 and ECF No. 80 at 2-3 ¶¶ 2-4.) Plaintiff
emphasizes Green Brook’s interrogatory responses, which stated the Campaign was a marketing
effort, despite the fact Green Brook responded to interrogatories without the benefit of knowing
the content of the call. (ECF No. 79 at 2 n.4). Yet, Plaintiff offers no explanation for the ways
discovery served to discredit many aspects of his claims. The Court cannot fathom Congress
intended, in enacting the TCPA, to create a cause of action in a case such as this, where a plaintiff’s
account of an alleged violation was shown to be inaccurate in many respects. Nevertheless, the
Court examines the Motions against the current legal landscape of TCPA cases.

8

A. Green Brook’s Motion
Green Brook makes three arguments in support of its motion. First, Green Brook argues
the recorded call did not violate the TCPA, because it was not an advertisement or a telemarketing
message. Second, Green Brook argues it is exempt from liability pursuant to 47 U.S.C. §
227(a)(4)(B), because Plaintiff and all other recipients of the call had an established business
relationship with Green Brook. Third, Green Brook argues that, because Plaintiff received only
one call, he has not sustained a particularized injury to have standing to assert a TCPA claim under
the Supreme Court’s precedent in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016). 5
1. Whether the Robocall Constituted “Telemarketing”
Green Brook argues the phone call to Plaintiff does not violate the TCPA, because the call
did not constitute telemarketing. “[T]elemarketing means the initiation of a telephone call or
message for the purpose of encouraging the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(12). Green Brook
argues the content of the call, which explicitly told recipients was “regarding [their] last service
visit,” did not include any mention of purchasing, renting, or investing in property, goods, or, or
services. (ECF No. 60-3 at 12 (citing 47 C.F.R. § 64.1200(f)(12)).)
Plaintiff counters that a call’s purpose, not only its content, determines whether the call
constitutes telemarketing. (ECF No. 79 at 3 (citing 47 C.F.R. § 64.1200(f)(11)-(12)).) He cites the
testimony of Postorino, the former Green Brook employee, who stated the purpose of the

5

While these motions were pending, the Third Circuit held a plaintiff who received a single call
to her cell phone had “alleged a concrete, albeit intangible, harm” and established Article III
standing to assert a TCPA claim. Susinno v. Work Out World Inc., 862 F.3d 346, 352 (3d Cir.
2017) (citing Spokeo, 136 S. Ct. at 1549). Plaintiff and Green Brook supplemented their papers
arguing the extent to which Susinno applies in this case. (ECF Nos. 96 and 97.)
9

Campaign was to reach customers and inform them about offers to purchase cars. (ECF No. 83-2
at 89:9-25.) Plaintiff cites Green Brook’s interrogatory response in which it stated the Campaign’s
purpose was “to invite past . . . customers to purchase a vehicle.” (ECF No. 68-5 at 7 ¶ 11.) 6
Plaintiff also notes Blue Bonnet has stipulated to the fact that the Campaign was a marketing effort.
(ECF No. 62 at 2-3 ¶¶ 4, 6.) Plaintiff argues this Court should consider the call he received in light
of Green Brook’s overall efforts to reach customers. (ECF No. 79 at 3-4 (citing Physicians
Healthsource, Inc. v. Janssen Pharm., Inc., No. 12-2132 FLW-TJB, 2015 WL 3827579, at *4
(D.N.J. June 19, 2015), reconsideration denied, No. 12-2132 FLW-TJB, 2015 WL 5164821
(D.N.J. Sept. 2, 2015).)
This Court finds Green Brook’s robocall did not constitute telemarketing—even under the
Ninth Circuit’s more expansive standard, which Plaintiff asks the Court to apply. 7 The Ninth
Circuit held “explicit mention of a good, product, or service [is not necessary] where the
implication is clear from the context” that a message constitutes telemarketing. Chesbro v. Best
Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012). On the other hand, “messages ‘whose purpose
is to facilitate, complete, or confirm a commercial transaction that the recipient has previously
agreed to enter into with the sender are not advertisements.’” Aderhold v. car2go N.A. LLC, 668

6

The Court notes Ferraez testified he did not know the content of the robocall at the time of the
Campaign, and, as noted above, Green Brook was unaware of the language of the robocall until
after it answered interrogatories and all depositions were taken. (ECF No. 88 at 4-5.)
7

The Third Circuit has yet to decide “whether a Court should indeed look beyond the four comers
of a fax’s contents and examine other potentially relevant facts in its determination as to whether
a particular fax indeed constitutes an advertisement.” Physicians Healthsource, Inc., 2015 WL
3827579, at *4. While this case stems from a robocall, not a fax, the Court finds the two types of
communication are analogous. See Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72,
106 (3d Cir. 2011), opinion reinstated in part, No. 09-3105, 2012 WL 2052685 (3d Cir. Apr. 17,
2012) (recognizing the TCPA was enacted to curb both unsolicited faxes and telephone calls).
10

F. App’x 795, 796 (9th Cir. 2016) (quoting In re Rules & Regs. Implementing the Tel. Consum.
Prot. Act of 1991, 21 FCC Rcd. 3787, 3812 ¶ 49 (Apr. 6, 2006)).
Here, the purpose of the robocall was to complete or confirm Plaintiff’s satisfaction with
his service visit. See P&S Printing LLC v. Tubelite, Inc., No. 14-1441, 2015 WL 4425793, at *5
(D. Conn. July 17, 2015) (finding a fax was not an advertisement when its primary purpose was to
communicate with customers rather than solicit goods). Plaintiff emphasizes the fact that Green
Brook’s former employee and Blue Bonnet claimed the purpose of the Campaign was ultimately
to sell more cars to former customers. This purpose is too attenuated from the robocall, however,
to render the robocall a telemarketing message. See Smith v. Blue Shield of Cal. Life & Health Ins.
Co., 228 F. Supp. 3d 1056, 1067-68 (C.D. Cal. 2017) (holding a business’s “overarching incentive
to retain customers” is not enough to “transform” a communication into telemarketing). Green
Brook may have been motivated by a desire to cultivate goodwill with former customers through
the robocall, but such a broad view of a business’s aims “would transform practically all
communication from any entity that is financially motivated and exchanges goods or services for
money into telemarketing or advertising, which would contravene the delineated definitions of
telemarking and advertising in 47 C.F.R. § 64.1200(f)(10, (12).” Id. at 1068.
The Court finds, therefore, Green Brook’s robocall did not constitute telemarketing and
did not violate the TCPA.
2. The Established Business Rule and Consent
“[T]he TCPA does not apply if calls are made to customers with whom the caller has an
Established Business Relationship.” Zelma v. Art Conway, No. 12-00256, 2013 WL 6498548, at
*2 (D.N.J. Dec. 11, 2013). An established business relationship is
a prior or existing relationship formed by a voluntary two-way
communication between a person or entity and a residential
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subscriber with or without an exchange of consideration, on the
basis of the subscriber's purchase or transaction with the entity
within the eighteen (18) months immediately preceding the date of
the telephone call . . . which relationship has not been previously
terminated by either party.
47 C.F.R. § 64.1200(f)(5); Zelma, No. 12-00256, 2013 WL 6498548, at *2. Here, Plaintiff testified
in his deposition that he had his car repaired at Green Book in 2011. (ECF No. 60-7 at 19:1020:21.) Plaintiff’s car was serviced at Green Brook for approximately thirty days, and Plaintiff
testified he called Green Brook several times during that time. (Id. at 22:19-21, 31:12-14, 32:715.)
Plaintiff argues the established business relationship exception does not apply, because the
exception was eliminated effective October 16, 2013. (ECF No. 79 at 5.) The Court agrees. See In
the Matter of Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd.
1830, 1837 (2012) (“[W]e eliminate the ‘established business relationship exemption as it
previously applied to telemarketing robocalls to residential lines.”). Green Brook cites the
definition of established business relationship at 47 U.S.C. § 227(a)(4)(b) in arguing the exception
applies to the Campaign (ECF No. 60-3 at 11), but the statute applies the exception only to
subsection (b)(1)(C)(i), which governs unsolicited advertisements made to a “facsimile machine.”
See 47 U.S.C. § 227(b)(1)(C)(i). Here, the contact at issue was a telephone robocall, not a fax. The
Court finds, therefore, the established business relationship does not apply.
The established business relationship is not the only exception in the TCPA. The TCPA
does not prohibit telephone robocalls made “with the prior express consent of the called party.” 47
U.S.C. § 227(b)(1)(A). Plaintiff argues there was no consent in this matter, because Green Brook
did not obtain “prior express written consent.” (ECF No. 64 at 6-7 (citing 47 C.F.R. §
64.1200(a)(2)) (emphasis added).) Green Brook does not dispute that Plaintiff did not give prior

12

express written consent. (Id. at 7-8.) The TCPA requires written consent for calls that constitute
telemarketing. 47 C.F.R. § 64.1200(a)(2). As the Court has found Green Brook’s robocall did not
constitute telemarketing, written consent was not required.
Instead, Green Brook needed only to obtain the “prior express consent of the called party.”
See 47 U.S.C. § 227(b)(1)(A). This Court has interpreted the consent requirement to be met when
a plaintiff knowingly released his phone number. See Chisholm v. AFNI, Inc., No. 15-3625, 2016
WL 6901358, at *5 (D.N.J. Nov. 22, 2016) (“Under the TCPA, ‘persons who knowingly release
their phone numbers have in effect given their invitation or permission to be called at the number
which they have given, absent instructions to the contrary.’” (quoting Rules and Regulations
Implemented the Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8769 (1992))). Plaintiff
provided Green Brook with his phone number when Green Brook was repairing his car, and he
never gave instructions not to call him. See Gager, 727 F.3d at 268-69, 271 (recognizing a party
consents to be called at a number provided to a business absent express revocation of that consent).
Once Plaintiff called to complain about the call he received, a Green Brook employee apologized
and Green Brook made no further calls to Plaintiff nor had any additional contact with him. (ECF
No. 60-3 at 5-6 ¶¶ 15-16 and ECF No. 80 at 5 ¶¶ 14-5.)
The Court finds Plaintiff consented to be called at the phone number he provided to Green
Brook, and the robocall did not violate the TCPA.
3.

Spokeo and Plaintiff’s Standing to Assert a Claim

The Court cannot grant Green Brook’s Motion until it addresses the issue of Plaintiff’s
standing to assert his claims. Green Brook argues Plaintiff has not suffered a particularized injury
that grants him Article III standing under the Supreme Court’s decision in Spokeo. Green Brook
acknowledges the Third Circuit’s decision in Susinno but argues, while one call is sufficient injury

13

to confer standing and survive a motion to dismiss, one call is not sufficient to establish a
particularized injury as a matter of law. (ECF No. 97 at 6.) Green Brook reiterated at oral argument
that Plaintiff must demonstrate a particularized injury in order to satisfy the standing requirements
of Spokeo and argued he cannot do so as a matter of law.
Article III “standing consists of three elements.” Spokeo, 136 S. Ct. at 1547 (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560(1992)). To establish standing, “[t]he plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. “The plaintiff,
as the party invoking federal jurisdiction, bears the burden of establishing these elements.” Id.
(citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)).
As in Spokeo, “[t]his case primarily concerns injury in fact, the ‘[f]irst and foremost’ of
standing’s three elements.” Id. at 1547 (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83,
103 (1998)). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). “For an injury to be
‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id. (citations
omitted). “Particularization is necessary to establish injury in fact, but it is not sufficient. An injury
in fact must also be ‘concrete.’” Id. “A ‘concrete’ injury must be ‘de facto’; that is, it must actually
exist.” Id. (“When we have used the adjective ‘concrete,’ we have meant to convey the usual
meaning of the term – ‘real,’ and not ‘abstract.’”). “Concreteness, therefore, is quite different from
particularization.” Id.
Here, Plaintiff has presented sufficient evidence that could allow a reasonable jury to
conclude he suffered a particularized and concrete injury. First, a reasonable jury could conclude

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an unwanted call constitutes a particularized injury in a TCPA case insofar as such a call creates a
nuisance or invades a plaintiff’s privacy. See Smith, 228 F. Supp. 3d at 1063 (denying defendant’s
summary judgment on issue of standing because invasion of privacy is a particularized injury);
Nghiem v. Dick’s Sporting Goods, Inc., 222 F. Supp. 3d 805, 811 (C.D. Cal. 2016) (invasion of
privacy is a concrete and particularized injury); Mey v. Venture Data, LLC, No. 14-123, 2017 WL
1193072, at *8 (N.D. W. Va. Mar. 29, 2017) (denying defendant’s summary judgment motion
where alleged invasion of plaintiff’s privacy was a particularized and concrete harm); see also
Physician's Healthsource, Inc. v. Vertex Pharm. Inc., No. 15-11517 JCB, 2017 WL 1534221, at
*8 (D. Mass. Mar. 28, 2017) (finding unwanted fax created particularized injury by occupying
plaintiff’s fax machine).
The Third Circuit applied the two-part test established in In re Horizon Healthcare Inc.
Data Breach Litig., 846 F.3d 635 (3d Cir. 2017) to hold a single call can give rise to sufficiently
concrete injury to satisfy the standing requirements of Spokeo. Susinno, 862 F.3d at 351. It stated:
We summarize Horizon’s rule as follows. When one sues under a
statute alleging [1] “the very injury [the statute] is intended to
prevent,” and [2] the injury “has a close relationship to a harm . . .
traditionally . . . providing a basis for a lawsuit in English or
American courts,” a concrete injury has been pleaded. We do not,
and need not, conclude that intangible injuries falling short of this
standard are never concrete. Rather, we simply observe that all
intangible injuries that meet this standard are concrete.
Id. (citations omitted). The Third Circuit reasoned one unwanted communication is a concrete
injury under the first prong, because Congress enacted the TCPA precisely to address the injury
caused by unwanted calls. Id. The second prong is satisfied, because the TCPA’s protection from
the injury of one call has a close relationship to the common law protection of plaintiffs’ privacy
rights. Id. at 352.

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In light of the Third Circuit’s ruling, the Court finds a reasonable jury could conclude
Plaintiff sustained a concrete injury and therefore has Article III standing. The Court finds, though,
Green Brook did not violate the TCPA, because the one call to Plaintiff was not telemarketing.
Therefore, Green Brooks Motion for Summary Judgment (ECF No. 60) is GRANTED.
B. Plaintiff’s Motion for Summary Judgment
Plaintiff argues there is no genuine dispute of material fact that Green Brook, or in the
alternative Blue Bonnet, violated the TCPA. (See ECF No. 64.) As in his opposition to Green
Brook’s motion, Plaintiff argues a call’s purpose, not only its content, determines whether the call
constitutes telemarketing. (Id. at 8-9.) Plaintiff cites Green Brook’s interrogatory responses stating
Green Brook hoped former customers would purchase cars, but as noted above, Ferraez testified
he did not know the content of the robocall and Green Brook was unaware of the language of the
robocall until after it answered interrogatories and all depositions were taken. (ECF No. 88 at 45.) Further, even if the Court were to assume Green Brook’s goal was to cultivate goodwill with
former customers, that purpose is too attenuated from the robocall to render the robocall a
telemarketing message. See Smith, 228 F. Supp. 3d at 1067-68 (holding a business’ “overarching
incentive to retain customers” is not enough to “transform” a communication into telemarketing).
Because the Court finds Green Brook’s robocall did not constitute telemarketing and no
violation of the TCPA took place, Plaintiff’s Motion for Summary Judgment (ECF No. 63) is
DENIED.
C. Plaintiff’s Motion for Class Certification
At oral argument, Plaintiff acknowledged if there was no violation as to Plaintiff, there
could be no violation as to any recipient of the robocall. As there was no violation of the TCPA,
Plaintiff’s Motion for Class Certification (ECF No. 66) is DENIED AS MOOT.

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D. Blue Bonnet’s Motion
Blue Bonnet makes two arguments in support of its motion. First, Blue Bonnet argues it
cannot be liable under the TCPA, because it is a common carrier and was not the “maker or
initiator” of the calls. (ECF No. 62 at 4-5.) Second, Blue Bonnet argues Green Brook is bound by
the Hold Harmless Agreement, which would shield Blue Bonnet from liability and entitle it to
reimbursement of the cost of defending itself from Plaintiff’s claims. (Id. at 7-8.)
Because the Court has concluded that Green Brook is not liable for any damages to
Plaintiff, as there was no violation of the TCPA, Blue Bonnet is likewise not liable, and Blue
Bonnet’s Motion as to its liability under the TCPA is GRANTED. While Blue Bonnet did not
move for summary judgment on the ground that the robocall did not constitute telemarketing,
Plaintiff was aware of Green Brook’s assertion of that argument and he presented an opposing
argument. Plaintiff therefore suffers no prejudice through the Court’s grant of summary judgment
to Blue Bonnet on the same ground. 8
The Court declines to analyze Blue Bonnet’s argument it cannot be liable under the TCPA
as a common carrier. Green Brook and Blue Bonnet have asserted contractual crossclaims against
each other for damages arising from the defense of Plaintiff’s claims. The Court therefore
considers Blue Bonnet’s argument concerning the Hold Harmless agreement.

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The Third Circuit has held a court can sua sponte grant summary judgment as long as “(1) the
point at issue is purely legal; (2) the record was fully developed, and (3) the failure to give notice
does not prejudice the party . . . .” Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 219
(3d Cir. 2004). While the grant of summary judgment to Blue Bonnet on a ground Blue Bonnet
did not argue is not a sua sponte grant of summary judgment, the Court takes note of the factors
provided by the Gibson court.
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1. The Hold Harmless Agreement
Blue Bonnet and Green Brook dispute the extent to which the Hold Harmless Agreement
the two parties signed is binding. Ferraez testified he never saw the Hold Harmless Agreement
until after this lawsuit was filed, and he believes it was created after the fact. (ECF No. at 11-12.)
Postorino, Green Brook’s former employee, testified he signed the Hold Harmless Agreement
around the time of the Campaign. (ECF No. 62 at 8.) At oral argument, Blue Bonnet argued
Postorino had apparent authority to sign the Hold Harmless Agreement and that he had held
himself out as having such authority.
“Apparent authority arises in those situations where the principal causes persons with
whom the agent deals to reasonably believe that the agent has authority despite the absence of an
actual agency relationship.” American Tel. and Tel. Co. v. Winback & Conserve Program, Inc., 42
F.3d 1421, 1439 (3d Cir. 1994) (citation omitted). A plaintiff who asserts a claim based on an
agent’s apparent authority must allege the principal’s actions misled the plaintiff into believing the
agent acted on the principal’s behalf. Automated Salvage Transport, Inc. v. NV Koninklijke KNP
BT, 106 F. Supp. 2d 606, 618 (D.N.J. 1999). “Whether an agent is cloaked with apparent authority
is a factual question.” Id. at 619 (citing Gizzi v. Texaco, Inc., 437 F.2d 308, 310 (3d Cir. 1971)).
Blue Bonnet argues without reference to any authority that “[t]he actions of Mr. Postorino
as an employee of the dealership establish apparent authority.” (ECF No. 62 at 6.) An agent’s
actions cannot establish apparent authority, however. See Automated Salvage Transport, Inc., 106
F. Supp. 2d at 618. Rather, Blue Bonnet must establish Ferraez, as Green Brook’s owner and
president, misled Blue Bonnet into believing Postorino had apparent authority to sign the Hold
Harmless Agreement. Blue Bonnet has not established any reasonable jury must conclude

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Ferraez’s actions misled Blue Bonnet to such a conclusions. Therefore, summary judgment is not
appropriate.
As there are disputes of material fact as to the legitimacy of the Hold Harmless Agreement,
Blue Bonnet’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.
V.

CONCLUSION

For the foregoing reasons Green Brook’s Motion for Summary Judgment is GRANTED;
Plaintiff’s Motion for Summary Judgment is DENIED; Broking’s Motion to Certify Class is
DENIED AS MOOT; and Blue Bonnet’s Motion for Summary Judgment is GRANTED IN
PART as to Plaintiff’s claims and DENIED IN PART as to Green Brook’s claims. Judgment is
entered in favor of Green Brook and Blue Bonnet as to Plaintiff’s claims. Green Brook’s and Blue
Bonnet’s crossclaims against each other, insofar as each seeks reimbursement from the other for
the costs incurred defending themselves from Plaintiff’s claims, shall proceed. An appropriate
Order will follow.

Date: August 22, 2017

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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