TOWN & COUNTRY JEWELERS, LLC v. MEADOWBROOK INSURANCE GROUP, INC. et al

Filing 37

MEMORANDUM and ORDER denying 29 Defendant's Motion for Summary Judgment. Signed by Judge Peter G. Sheridan on 6/30/2016. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TOWN & COUNTRY JEWELERS, LLC,
Individually, and on behalf of all others
similarly situated,

Civil Action No.: 3:15-2519 (PGS)(LHG)

Plaintiffs,
MEMORANDUM
AND
ORDER

v.
MEADOWBROOK INSURANCE GROUP,
INC. and JOHN DOES (1-10),
Defendants.

SHERIDAN, District Judge.
Facts and Procedural History:
Plaintiff Town & Country Jewelers, LLC (“Town & Country” or “Plaintiff’)
sued
Meadowbrook Insurance Group, Inc. (“Meadowbrook” or “Defendant”) under
the Telephone
Consumer Protection Act, 47 U.S.C.

§ 227, et seq. (“TCPA”), for sending Plaintiff an unsolicited

faxed advertisement without the “opt-out” language.
On February 2, 2015, Defendant sent a fax advertisement to the Plaintiff’s
fax machine in
Eatontown, NJ. (Compi.

¶

13). It did not contain an opt-out notice. (Compi.

¶

16). Plaintiff

claims that the fax was unsolicited, while Defendant claims that it was solicite
d. This is the only
material dispute in the case.
It is undisputed that on April 9, 2012, a representative of Meadowbrook, Allison
Lathrop
(“Lathrop”), spoke with Victor Ashkenazy (“Ashkenazy”), the owner of Town
& Country.

1

(Defendant’s Statement of Material Facts (“DSMF”) ¶ 1; Plaintiff’s Statement of Material Facts
(“PSMF”)

¶

1)).

The Complaint was filed on April 8, 2015. On July 28, 2015, the Court stayed the
proceeding and administratively terminated the case. On February 17, 2016, the stay was lifted,
and on April 13, 2016, Defendant filed this motion for summary judgment.
Legal Standard:
Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the
moving party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 3 22-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for
the non-movant, and it is material if, under the substantive law, it would affect the outcome of
the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v.
Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary
judgment cannot rest on mere allegations and must instead present actual evidence that creates a
genuine issue as to a material fact for trial. Anderson, 477 US. at 248; Siegel Transfer, Inc. v.
Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations.

.

.

and

pleadings are insufficient to repel summary judgment.” Schoch v. First Fidelity Bancorp., 912
2

F.2d 654, 657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to “set
forth specific facts showing that there is a genuine issue for trial”). If a court determines, “after
drawing all inferences in favor of [the non-moving party], and making all credibility
determinations in his favor. .that no reasonable jury could find for him, summary judgment is
.

appropriate.” Alevras v. Tacopina, 226 Fed. App’x 222, 227 (3d Cir. 2007).
Analysis:
The TCPA prohibits “use [of] any telephone facsimile machine, computer, or other
device, to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 USC

§

227(b). There was confusion about whether the opt-out notice requirement applied to “solicited”
faxes, and the FCC has granted retroactive waivers of this 47 CFR 64.1200(a)(4)(iv) requirement
to various petitioners. (See FCC Order No. 14-164, at p. 12, Ex. 3 to Paster Deci.).
Meadowbrook’s petition seeking a retroactive waiver was granted by the FCC on August 28,
2015; therefore, only unsolicited faxes would be prohibited in this action. (See FCC Order No.
DA 15-976, Ex. 5 to Paster DecI.).
Defendant argues that summary judgment should be granted because Town & Country
expressly consented to receiving faxes from Meadowbrook, and it specifically provided its fax
number to Meadowbrook for that purpose. There is no dispute that on April 9, 2012, Lathrop, a
representative of Meadowbrook, spoke with Ashkenazy. (DSMF 1; PSMF 1). Defendant
¶
¶
provides a contemporaneous recording from Lathrop, where she says, “Spoke with Victor who
said he would like a quote.. .doesn’t know that he renews in June so wants me to call him on
Wednesday. Obtained fax to send info in the meantime.” (See Deci. of Nancy K. Clay (“Clay
Deci.”),

¶ 6).

3

Plaintiff does not dispute that Defendant obtained a waiver of the solicited fax
prohibitions. The only matter in dispute is whether this fax was “unsolicited.” Plaintiff asserts in
a sworn declaration that he never provided his fax number to Defendant. (Declaration of Victor
Ashkenazy (“Ashkenzy Deci.”),

¶ 5-9). Plaintiff says that no discovery has taken place in this

action, and summary judgment may not be granted based on this disputed issue of material fact.
A genuine issue of a material fact is not created by self-serving assertions belied by
contemporaneous documentary evidence. Tindell v. Beard, 351 Fed. Appx. 591, 596 (3d Cir.
2009). Ashkenazy’s declaration was attached for the first time in opposition to summary
judgment. This is four years after this alleged conversation occurred. His declaration is compared
with the contemporaneous record of a recording regarding a conversation Plaintiff admits to
having, which may indicate that Ashkenazy requested that Meadowbrook provide him with
information, and that Ashkenazy gave Meadowbrook his fax number.
However, the alleged “consent” occurred in April 2012, and the fax in dispute was sent in
February 2015. Lathrop’s notes indicate that Ashkenazi wanted a quote because he did not know
whether he would “renew” in June 2012, and that she would “call him on Wednesday.” There is
no information about whether communications between the parties extended beyond this point,
and the Court will not speculate on whether Ashkenazy consented to receive any additional
faxes. Moreover, the

§

227 defines “unsolicited advertisement” as “any material advertising the

commercial availability or quality of any property, goods, or services...” 47 U.S.C.A.

§

227(a)(5). It is not clear based on the two sentences of notes in Lathrop’ s documentation whether
she was even referring to an “advertisement.”

4

Discovery has not taken place in this matter, Ashkenazy has denied providing his
consent, and the Court will not declare summary judgment in favor of Defendant based on this
one piece of evidence.

ORDER
THIS MATTER having been presented to the Court upon the motion for summary
judgment by Defendant Meadowbrook Insurance Group, Inc. [ECF No. 29]; and after
considering the submissions of the parties, for the reasons stated on the record on June 6, 2016,
for the reasons stated herein, and for good cause shown:
IT IS on this

‘à day of June, 2016, hereby

ORDERED that Defendant’s motion for summary judgment [ECF No. 29] is DENIED.

PETER G. SHERIDAN, U.S.D.J.

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