EVANS v. NATIONAL AUTO DIVISION, L.L.C. et al
OPINION filed. Signed by Judge Anne E. Thompson on 9/12/2016. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FREDERICK EVANS, on behalf of
himself and all others similarly situated,
SEP 13 2016
WILLIAM T. WALSH
Civ. No. 15-8714
NATIONAL AUTO DIVISION, L.L.C.,
ARIEL FREUD, and DOES 1-25,
. This matter comes before the Court upon Plaintiff Frederick Evans' ("Plaintil') motion
for partial summary judgment. (ECF No. 28). Defendants National Auto Division, IL.L.C. and
Ariel Freud ("Defendants") oppose and file a cross•motion to dismiss pursuant to Feleral Rule of
Civil Procedure 12(b)(l). (ECF No. 31). The Court has issued the opinion below bled upon the
written submissions of the parties and without oral argwnent pursuant to Federal Rull of Civil
Procedure 78(b). For the reasons stated herein, Defendants' motion to dismiss will bl denied,
and Plaintiffs motion for partial summary judgment will also be denied.
This case involves alleged violations of the Telephone Consumer Protection let
("TCPA"), 47 U.S.C. § 227. The TCPA prohibits the use of an automatic telephone dialing
system or a
prerec~rded voice to place calls to a cellular phone number without the c1led party's
prior, express consent. 47 U.S.C. § 227. Plaintiff's allegations are as follows: on SeJtember 20,
2015, Plaintiff provided his cellular telephone number to the website Direct Auto W lanty,
http://directautowarranty.co. (Pl.'s Statement of Undisputed Material Facts~ 1, ECF No. 29).
At that time, the website contained the following disclosure when a user signed up:
We take your privacy seriously. By clicking the button, you agree to the Privacy
Policy, to be matched with up to 5 partners from our network, and consertt (not
required as a condition to purchase a good/service) for us and/or them to cbntact
you via telephone, mobile device (including SMS and MMS), and/or email, dven if
you are on a corporate, state, or national Do Not Call Registry.
As a result of Plaintiff signing up for free quotes, Defendants placed telepfuone calls to
Plaintiffs cellular telephone number. (Id
At least some of the calls placed to Plaintiffs
cellular telephone were placed in order to encourage the purchase of vehicle service contracts.
Plaintiff alleges that Defendants' calls violated the TCP A because Defendants utilized
an automatic telephone dialing system to make these calls, but Plaintiff did not exprlssly consent
to this in writing, as required by the TCPA.
Plaintiff filed a class action lawsuit in this Court on December 17, 2015 on behalf of all
persons within the United States who received similar calls from Defendants withouJ having
provided their prior, express consent. (Comp!., ECF No. 1). Defendants filed a mottn to
di_smiss on February 11, 2016, (ECF No. 7), which was denied by the Court on March 8, 2016,
(ECF No. 14). Then, on July 21, 2016, Plaintiff filed a motion for partial summary jLgment on
the issue of whether Defendants received Plaintiffs prior express written consent. (ECF No.
28). On August 4, 2016, Defendants opposed the motion and also filed a cross-moti1n to dismiss
the complaint pursuant to Federal Rule of Civil Procedure 12(b)(l). (ECF No. 31). These
motions are presently before the Court.
A. Legal Standards
1. Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(l) challenges the
existence of a federal court's subject matter jurisdiction. The motion may either attal the
complaint facially or factually. Mortensen v. First Fed Sav. & Loan Ass 'n, 549 F.2d 884, 891
(3d Cir. 1977). "The defendant may facially challenge subject matter jurisdiction by arguing that
the complaint, on its face, does not allege sufficient grounds to establish subject mattL
jurisdiction." D.G. v. Somerset Hills School Dist., 559 F. Supp. 2d 484, 491 (D.N.J. 2008). "A
defendant can also attack subject matter jurisdiction by factually challenging the
allegations set forth in the complaint." Id
Under a Rule 12(b)(l) challenge, the plaintiff beats the burden of persuasion. Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). However, on a facial
attack, "the court must consider the allegations of the complaint as true." Mortensen,
2. Motion for Summary Judgment
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 oflaw." Fed. R. Civ. P.
56(a). A fact is "material" if it will "affect the outcome of the suit under the govemijg law.''
Anderson v. 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." Id. When deciding the
existence of a genuine dispute of material fact, a court's role is not to weigh the evideLe; all
reasonable "inferences, doubts, and issues of credibility should be resolved against th:e moving
party." Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).
The movant ·"always bears the initial responsibility of informing the district c
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