Natale v. Arizona Premium Finance Co., Inc.
Filing
32
DECISION AND ORDER IT HEREBY IS ORDERED, that Defendant's Motion (Docket No. 22) for Summary Judgment is DENIED.FURTHER, that Plaintiff's Motion (Docket No. 26) for Summary Judgment is DENIED, consistent with this dec ision.FURTHER, that this case is REFERRED for alternative dispute resolution under Section 2.1.B of the Plan for Alternative Dispute Resolution in the United States District Court for the Western District of New York ("the ADR Plan"). FURTHER, that the parties shall re-engage with Mediator Bruce Zeftel and participate in the mediation session as scheduled by Mr. Zeftel.FURTHER, that within 10 days of the mediation session and any subsequent sessions, the mediator shall file a M ediation Certification setting forth the progress of mediation.FURTHER, that the mediation process shall be completed by November 1, 2021.FURTHER, that the parties shall timely comply with all relevant requirements of the ADR Plan, which is ava ilable at http://www.nywd.uscourts.gov. FURTHER, that the parties shall appear before this Court on Wednesday, May 26, 2021, at 9:00 AM, to report on the status of this case if it is not sooner resolved through mediation.SO ORDERED.Signed by William M. Skretny, United States District Judge on 3/18/2021. (JCM)
Case 1:17-cv-00934-WMS-HKS Document 32 Filed 03/18/21 Page 1 of 24
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICHARD NATALE,
Plaintiff,
DECISION AND ORDER
v.
17-CV-934S
ARIZONA PREMIUM FINANCE CO., INC.,
Defendant.
I.
Introduction
This is a Telephone Consumer Protection Act, 47 U.S.C. §§ 227, et seq. (“TCPA”),
case in which Plaintiff alleges receiving over 100 telephone calls from Defendant to a
cellphone he used.
Defendant questions whether Plaintiff rightfully possessed that
cellphone to state this claim.
The telephone number at issue once was assigned to another person who incurred
a debt to Defendant. That person had authorized Defendant to contact him at that
number.
Eventually, the number became reassigned to Plaintiff’s girlfriend, Katrina
James (“James”), on the cellphone used by Plaintiff. Plaintiff lived with James when she
subscribed with SafeLink for cellphone service under the Lifeline program, and she
allowed Plaintiff to use that cellphone (Docket No. 25, Aff. of Katrina James ¶¶ 6-8).
Nevertheless, Defendant proceeded to call the number to collect that debt.
In November 2016, that cellphone received calls from Defendant attempting to
collect a debt from the person who once had that telephone number. Plaintiff (and James)
did not authorize receipt of calls and did not owe the claimed debt.
Case 1:17-cv-00934-WMS-HKS Document 32 Filed 03/18/21 Page 2 of 24
Plaintiff filed this action under the TCPA and 47 C.F.R. § 64.1200 (Docket No. 1,
Compl.). James is not a party in this action, although she is the accountholder for the
cellphone.
Presently before this Court are (1) Defendant’s Motion for Summary Judgment
(Docket No. 22 1) dismissing this action and (2) Plaintiff’s Motion for Summary Judgment
(Docket No. 26 2). For reasons stated below, Defendant’s Motion for Summary Judgment
(Docket No. 22) is denied and Plaintiff’s Motion for Summary Judgment (Docket No. 26)
is denied.
II.
Background
A. Facts and Pleadings
In 2016, Plaintiff and James lived in an apartment at 1000 Kenmore Avenue,
Apartment #10 for three years prior to 2019 and before then that same address,
Apartment #5. James later explained that they moved from Apartment #5 to Apartment
#10 due to their issues in navigating stairs. (Docket No. 31, Katrina James Decl. ¶¶ 3-4,
Ex. A; see also Docket No. 28, Def. Atty. Decl. ¶ 5.) In these moving papers, however,
Plaintiff states he lived at apartments in 1004 Kenmore Avenue (Docket No. 25, Pl. Aff.
¶¶ 3, 7-8; Docket No. 26, Pl. Aff. ¶ 3; Docket No. 31, Pl. Reply Memo. at 2) with James
1 In support of its Motion, Defendant submits its Statement of Facts with exhibits and Memorandum
of Law, Docket No. 26; its Attorney’s Reply Declaration with exhibit Docket No. 28.
Part of his opposition is contained in his Motion for Summary Judgment, Docket No. 30. He also
submits in opposition to Defendant’s Motion his Affidavit with exhibits and Statement of Undisputed Facts
in Response to Defendant’s Rule 56 Statement of Facts, Docket No. 25.
In support of his Summary Judgment motion, Plaintiff submits his Affidavit, the Affidavit of Katrina
James, exhibits (including an audio recording of an example call, Docket No. 29), and Memorandum of Law
Docket No. 26; and Plaintiff’s Reply Memorandum with a second affidavit of Ms. James (with exhibits),
Docket No. 31.
2
In opposition (in addition to its own Motion), Defendant submits its Memorandum of Law with
exhibits, Docket No. 30
2
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(Docket No. 25, James Aff. ¶ 3; Docket No. 26, James Aff. ¶ 3; Docket No. 31 James Aff.
¶ 3; Docket No. 31, Pl. Reply Memo. at 2). The rental agreement Plaintiff and James
executed for a tenancy beginning on July 1, 2016, however, is for 1000 Kenmore Avenue
(Apartment #5) (Docket No. 31, James Aff. Ex. A) and the Section 8 program inspection
inspected 1000 Kenmore Avenue, Apartment #5 (id. ¶ 8, Ex. B).
James’ Tracfone
cellphone account has her address at 1000 Kenmore Avenue, Apartment #5 (Docket
No. 22, Def. Ex. A). In their Amended Initial Disclosure of May 30, 2019, Plaintiff states
that he and James lived at 1000 Kenmore Avenue Apartment #10 (Docket No. 26, Pl.
Atty. ¶ 4, Ex. C). Meanwhile, Plaintiff’s original Initial Disclosure (Docket No. 28, Def. Ex.
A) of February 13, 2018, stated Plaintiff’s address was 1000 Kenmore Avenue Apartment
#10. The building number (while confusing) is not at issue.
At issue, however, is which apartment Plaintiff resided in November 2016 and
whether he resided with James. The parties dispute whether Plaintiff and James lived in
the same apartment at 1000 (or 1004) Kenmore Avenue. Defendant contends that
Plaintiff lived at Apartment #10 (Docket No. 28, Def. Atty. Decl. ¶ 5, Ex. A), while James
lived at Apartment #5 (id., ¶ 5). Plaintiff disagrees stating that he and James shared a
household (Docket No. 25, Pl. Response to Def. Statement ¶ 4; Docket No. 25, Pl. Memo.
at 2, 4-5) at Apartment #10 (Docket No. 31, James Aff. ¶ 3) and thus could share James’
SafeLink cellphone (Docket No. 25, Pl. Memo. at 4-5). Defendant does not present
evidence of James residing by herself at Apartment #5 or resided there while Plaintiff
resided at Apartment #10.
Plaintiff alleges that from November 2, 2016, to July 14, 2017, he received
108 unwanted calls to James’ cellphone (Docket No. 26, Pl. Statement ¶ 1; see Docket
3
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No. 1, Compl. ¶ 15). He claims that Defendant called the cell number multiple times a
day (Docket No. 1, Compl. ¶¶ 15, 21).
Defendant answered (Docket No. 4). After referral to Magistrate Judge H. Kenneth
Schroeder (Docket No. 5), entry of the Case Management Order (Docket No. 8) and its
amendments (Docket Nos. 14, 21), and granting Plaintiff’s Motion to Compel (Docket
Nos. 16 (motion), 20 (Order)), Defendant filed the present Motion for Summary Judgment
(Docket No. 22) followed by Plaintiff’s Motion for Summary Judgment (Docket No. 26).
B. Motion for Summary Judgment
Comparing the Statements of Fact for both sides’ motions (Docket Nos. 22, Def.
Statement; 26, Pl. Statement) and their responses thereto (Docket Nos. 25, Pl. Response
to Def’s Statement; 30, Def’s Response to Pl. Statement), the facts generally are not
contested. Factual disputes will be noted below.
The (redacted) 3 telephone number that is subject to this action is (716) ___-3641
(Docket No. 22, Def. Statement ¶ 1). Defendant was provided this number by a borrower,
Justin Wilson of Farnham and later Hamburg, New York (id. ¶ 2, Ex. B; Docket No. 26,
Pl. Statement ¶ 4).
Wilson entered into an automobile insurance premium loan
agreement in 2010 and 2014 with Defendant (Docket No. 22, Ex. B). Wilson consented
to have Defendant contact his cellular number, the subject telephone number (id., ¶ 3,
Ex. B; see also Docket No. 25, Pl. Response to Def’s Statement ¶ 3 (admission)).
According to the subpoenaed records from Tracfone, the wireless carrier for the
subject telephone, James obtained activation on September 27, 2016 (Docket No. 22,
3 This Court redacts the actual number, see Salerno v. Credit One Bank, N.A. No. 15CV516, 2020
WL 1558153, at *2, 3 (W.D.N.Y. Mar. 31, 2020) (Foschio, Mag. J.) (Report & Rec.) (in TCPA action, Court
redacted telephone numbers to last four digits), adopted in part, rejected in part on other grounds, 2020
WL 4339219 (W.D.N.Y. July 28, 2020) (Sinatra, J.).
4
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Def. Ex. A). Neither side produced evidence when Wilson abandoned this number.
Wireless service providers recycle cellphone numbers (see Docket No. 22, Def. Memo.
at 2), see David Lazarus, “Service Providers Recycling Cell Phone Numbers is a Dirty
Little Secret,” SFGate, Feb. 3, 2006, www.sfgate.com/business/article/Service-providersrecycling-cell-phone-numbers-is-2505.php.
Disputed is whether, in November 2016 through July 2017, Plaintiff owned that
telephone number. Defendant contends that Plaintiff was not the owner of the subject
telephone (Docket No. 22, Def. Statement ¶ 4) while Plaintiff denies this allegation,
arguing that his girlfriend, James, was on the account but they shared household
expenses and that under the Lifeline program only one such cellphone was allowed per
household (Docket No. 25, Pl. Response to Def’s Statement ¶ 4; Docket No. 26, Pl.
Statement ¶ 5). Both parties agree that, under the Lifeline program, a household is
restricted to one phone benefit, even if more than one member of the household would
qualify for the benefit (Docket No. 26, Pl. Statement ¶ 8; Docket No. 30, Def. Response
to Pl’s Statement ¶ 8). Plaintiff argues that the program anticipates that “persons in the
household would share the benefit” (Docket No. 26, Pl. Statement ¶ 9); Defendant denies
this (Docket No. 30, Def. Response to Pl’s Statement ¶ 9).
Both sides agree that Katrina James is the accountholder for the cellphone ending
in -3641 (Docket No. 22, Def. Statement ¶ 5; Docket No. 25, Pl. Response to Def’s
Statement ¶ 5; Docket No. 26, Pl. Statement ¶ 5; Docket No. 30, Def. Response to Pl’s
Statement ¶ 5 (admitting James as subscriber but denying knowledge of her relationship
with Plaintiff)). Plaintiff, however, claims that the -3641 number is the sole number he
used (Docket No. 26, Pl. Statement ¶ 10); Defendant concedes Plaintiff alleged this but
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has no independent knowledge or evidence to corroborate or dispute it (Docket No. 30,
Def. Response to Pls’ Statement ¶ 10).
Plaintiff contends that he lived with James for the past three years and together
they constituted a household (Docket No. 26, Pl. Statement ¶¶ 6, 7). Defendant disputes
both their alleged living arrangement and whether they formed a “household” (Docket
No. 30, Def. Response to Pl’s Statement ¶¶ 6, 7).
Defendant contends that, for James to receive SafeLink service, she had to fill out
an application (Docket No. 22, Def. Statement ¶ 8, Ex. D; see also Docket No. 26, Pl.
Ex. H) which conditioned the use of the cellphone. Plaintiff counters that this assumes
that James filled out an application (Docket No. 25, Pl. Response to Def’s Statement ¶
8).
Plaintiff does cite to the Lifeline application for its policies (Docket No. 26, Pl.
Statement ¶¶ 7-9, Ex. H).
Defendant next argues that James was advised that the benefit of the
SafeLink/Lifeline cellphone service was non-transferable, and a transfer was in violation
of 47 C.F.R. §§ 54.401, 54.410 (Docket No. 22, Def. Statement ¶ 9). Plaintiff disagrees,
again on the assumption James applied for SafeLink services and arguing that the
SafeLink services extended to an entire household (Docket No. 25, Pl. Response to Def’s
Statement ¶ 9).
According to Plaintiff, on November 2, 2016, he began receiving calls on the
cellphone ending -3641 for an alleged outstanding balance on an automobile insurance
policy. He contends that a total of 108 calls were made by Defendant to Plaintiff from
November 2, 2016, through July 14, 2017. (Docket No. 26, Pl. Statement ¶¶ 1, 2.)
Defendant disputes this, arguing that there are issues of fact when Plaintiff began to
6
Case 1:17-cv-00934-WMS-HKS Document 32 Filed 03/18/21 Page 7 of 24
receive calls (since Plaintiff had not established when he had possession of the
cellphone) and the number of calls he received (Docket No. 30, Def. Response to Pl’s
Statement ¶ 1). These calls were intended for Justin Wilson and not for Plaintiff (Docket
No. 26, Pl. Statement ¶ 3) or James.
Defendant admits to the remainder of Plaintiff’s Statements of Fact (Docket No.
30, Def. Response to Pl’s Statement ¶¶ 11-19), that an automated voice would call the 3641 cellphone, either when Plaintiff answered or if a voice message was left (Docket No.
26, Pl. Statement ¶¶ 11-12), that these calls were made by Defendant through an
automatic dialing system (id. ¶¶ 13, 15), and that none of the calls were made manually
(id. ¶¶ 14, 17). Neither Plaintiff nor James provided the -3641 number to Defendant to
authorize calling their cellphone (id. ¶ 18).
In production upon a subpoena of the wireless carrier, Plaintiff produced cellphone
records that he identified as 29 calls from November 10, 2016, through October 16, 2017,
that he received from Defendant (Docket No. 30, Def. Ex. A), although the calls were not
highlighted within the recorded logs.
Plaintiff claims that there was a total of 108 calls, based upon Defendant’s
produced call logs (Docket No. 26, Ex. E).
Those logs are 108 pages long, from
November 2, 2016, through July 14, 2017, listing redacted telephone numbers by date
and time. Each log page contained at least one entry for calls to a telephone number
ending in -3641, but there was no identifier by either side that this number is the subject
number. Assuming these entries are for the same telephone number, from this Court’s
count of the -3641 entries in the produced log, there were 108 such entries (id.). The log
7
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indicates calls to -3641 for two to five times a day, with entries for one day at intervals of
about seven to ten days (id.).
Defendant argues that Plaintiff was not entitled to use the SafeLink phone to assert
a TCPA action (Docket No. 22, Def. Memo.).
Plaintiff moves for summary judgment, asserting that the elements for a TCPA
action were met (Docket No. 26, Pl. Memo.)
After Defendant moved for summary judgment (Docket No. 22), this Court ordered
responses thereto to be due September 3, 2019, and reply by September 17, 2019
(Docket No. 23).
Plaintiff’s deadline to file his Motion for Summary Judgment was
extended (cf. Docket No. 21) to September 3, 2019 (Docket No. 24). After Plaintiff filed
his Motion (Docket No. 26), responses to this motion were due by October 2, 2019, and
any reply by October 16, 2019 (Docket No. 27). Both motions then were fully briefed and
deemed submitted without oral argument.
III.
Discussion
A. Applicable Standards
1. Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall grant
summary judgment 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,” Fed. R. Civ. P. 56(a). A
fact is “material” only if it “might affect the outcome of the suit under governing law,”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). A “genuine” dispute, in turn, exists “if the evidence is such that a reasonable jury
could return a verdict for the non-moving party,” id. In determining whether a genuine
8
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dispute regarding a material fact exists, the evidence and the inferences drawn from the
evidence “must be viewed in the light most favorable to the party opposing the motion,”
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)
(internal quotations and citations omitted).
“Only when reasonable minds could not differ as to the import of evidence is
summary judgment proper,” Bryant v. Maffucci, 923 F.32d 979, 982 (2d Cir. 1991)
(citation omitted). Indeed “[i]f, as to the issue on which summary judgment is sought,
there is any evidence in the record from which a reasonable inference could be drawn in
favor of the opposing party, summary judgment is improper,” Sec. Ins. Co. of Hartford v.
Old Dominion Freight Line, Inc., 391 F.3d 77, 82, 83 (2d Cir. 2004) (citation omitted). The
function of the court is not “to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial,” Anderson, supra, 477 U.S. at
249.
“When the burden of proof at trial would fall on the nonmoving party, it ordinarily is
sufficient for the movant to point to a lack of evidence to go to the trier of fact on an
essential element of the nonmovant’s claim,” Cordiano v. Metacon Gun Club, Inc.,
575 F.3d 199, 204 (2d Cir. 2009), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Where the moving party demonstrates ‘the
absence of a genuine issue of material fact,’ the opposing party must come forward with
specific evidence demonstrating the existence of a genuine dispute of material fact,”
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citation omitted) (quoting
Celotex, supra, 477 U.S. at 323). The party against whom summary judgment is sought,
however, “must do more than simply show that there is some metaphysical doubt as to
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the material facts. . . . [T]he nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in
original removed).
Summary judgment is appropriate only if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits 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 of law. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003); Fed. R. Civ.
P. 56(a). The party seeking summary judgment has the burden to demonstrate that no
genuine issue of material fact exists. In determining whether a genuine issue of material
fact exists, a court must examine the evidence in the light most favorable to, and draw all
inferences in favor of, the nonmovant. Ford, supra, 316 F.3d at 354.
The Local Civil Rules of this Court require that movant and opponent each submit
“a separate, short, and concise” statement of material facts, and if movant fails to submit
such a statement it may be grounds for denying the motion, W.D.N.Y. Loc. Civ.
R. 56(a)(1), (2). The movant is to submit facts in which there is no genuine issue, id.
R. 56(a)(1), while the opponent submits an opposing statement of material facts as to
which it is contended that there exists a genuine issue to be tried, id. R. 56(a)(2). Each
numbered paragraph in the movant’s statement will be deemed admitted unless
specifically controverted by a correspondingly numbered paragraph in the opponent’s
statement, id. Absent such an opposing statement, the facts alleged by the movant are
deemed admitted. Each statement of material fact is to contain citations to admissible
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evidence to support the factual statements and all cited authority is to be separately
submitted as an appendix to that statement, id. R. 56(a)(3).
2. Telephone Consumer Protection Act
The TCPA made it unlawful for any person within the United States to make any
call “using any automatic telephone dialing system or an artificial or prerecorded voice”
to any cellular telephone service unless it is solely to collect a debt owed to or guaranteed
by the United States, 47 U.S.C. § 227(b)(1)(A)(iii) (No. 26, Pl. Memo. at 2). Calls are
actionable if they are not for an emergency or made with the prior express consent of the
called party, id. § 227(b)(1)(A) (id.).
3. Lifeline Program
The wireless carrier for the subject cellphone is SafeLink Wireless (Docket No. 22,
Def. Statement ¶ 6; Docket No. 26, Pl. Statement ¶ 5 (admission on this point); Docket
No. 30, Def. Response to Pl’s Statement ¶ 5) and that carrier participates in the Lifeline
program (Docket No. 22, Def. Statement ¶ 7), a brand of TracFone Wireless (Docket
No. 22, Ex. C; see id. Ex. A, subpoena to SafeLink Wireless c/o TracFone Wireless). This
is a program that provides cellphone service to low income individuals and households,
47 C.F.R. § 54.409 (Docket No. 26, Pl. Statement ¶ 5; Docket No. 30, Def. Response to
Pl’s Statement ¶ 5 (admission on this point); see Docket No. 22, Ex. C, SafeLink terms
and conditions at 1, Ex. D, Lifeline application). Persons eligible for the Lifeline program
must be participants in state or federal support programs or meet “certain income
requirements based upon the Income Poverty Guidelines as defined by the US
Government” (Docket No. 22, Ex. C).
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As noted by Judge Stefan Underhill in Schipke v. TracFone Wireless, Inc., 146 F.
Supp.3d 455, 457 (D. Conn. 2015),
“The Lifeline federal benefit program—conceived as means of ensuring the
availability of basic telecommunications services for all Americans—
provides subsidized (and sometimes free) telephone service to qualifying
individuals and families with low incomes. Lifeline is administered by the
Universal Service Administrative Company and overseen by the Federal
Communications Commission (‘FCC’), but the telephone service itself
(which may be landline service or, since 2005, cellphone service) is
provided by various third parties. TracFone is one such wireless provider
that participates in Lifeline as an ‘eligible telecommunications carrier’
(‘ETC’) with its Safelink brand.”
“Lifeline is a non-transferable benefit and the subscriber may not transfer his or
her benefit to any other person,” 47 C.F.R. § 54.410(d)(1)(vi)) (Docket No. 28, Def. Atty.
Decl. ¶ 4; Docket No. 22, Def. Memo. at 2). The SafeLink terms and conditions also
precluded the customer from selling, renting, or giving away or allowing any other person
to use the cellphone (id.).
The Lifeline service also is limited to one per household, 47 C.F.R. § 54.410(d)(ii);
see Schipke, supra, 146 F. Supp. 3d at 457 (see Docket No. 22, Ex. D; Docket No. 26,
Pl. Ex. H, Lifeline application), with a “household” defined “as any individual or group of
individuals who live together at the same address and share income and expenses,” id.
§ 54.410(d)(iii). A household is not allowed to receive Lifeline services from multiple
sources, id. § 54.410(d)(iv).
B. Contentions
1. Defendant
Defendant argues that Plaintiff did not lawfully possess the SafeLink cellphone,
because James could not lawfully transfer the cellphone to Plaintiff, for Plaintiff to allege
his claim under the TCPA (Docket No. 22, Def. Memo. at 4-7; Docket No. 30, Def. Memo.
12
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at 4-9). Defendant contends that James permitted Plaintiff to use that cellphone in
violation of federal law (Docket No. 30, Def. Memo. at 4-9; Docket No. 28, Def. Atty. Decl.
¶ 3). Conceding that Plaintiff and James were in the same household and that the
SafeLink benefit was limited to one household, Defendant argues that there was no
“‘household’ exception to the non-transferability of the benefit,” and precluding transfer of
SafeLink cellphones even within a household, concluding that James attempted to
transfer that cellphone to Plaintiff (Docket No. 28, Def. Atty. Decl. ¶ 4). Defendant
disputes whether Plaintiff and James were in the same household (whether they were in
the same apartment on Kenmore Avenue) or, if so, whether they were in that household
in November 2016 when the calls were made (id. ¶ 5).
In further opposition to Plaintiff’s Motion, Defendant raises as an issue of fact
whether it is properly held liable for these calls given that the prior owner of the cellphone
number had consented to being contacted on the cellphone (Docket No. 30, Def. Memo.
at 1). Defendant also questions the number of calls to the cellphone, raising a material
issue of fact (id. at 10-11).
2. Plaintiff
Plaintiff claims that he is a “called party” under the TCPA (Docket No. 26, Pl.
Memo. at 3) and that he (and James) did not consent to Defendant calling the SafeLink
cellphone (id. at 3-4). He alleges that Defendant uses an in-house dialer that is an
automatic telephone dialing system unlawful under TCPA, In re Rules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991; 30 F.C.C. Rcd. 7961, 8000-01 (2015)
(Docket No. 25, Pl. Memo. at 4-5). Defendant played pre-recorded messages (Docket
No. 29, Pl. Ex. A, example of recording) every time it called Plaintiff from a script which
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left no discretion, and the same message was left for every call (id. at 6). Plaintiff claims
statutory damages of $500 for each violative call, or $54,000 for the 108 alleged calls he
received from November 2, 2016, through July 14, 2017 (Docket No. 26, Pl. Memo. at 67; see Docket No. Compl., at page 4 of 4, WHEREFORE Cl. (b), 47 U.S.C.
§ 227(b)(3)(B)).
Defendant responds that there are issues of fact when Plaintiff received telephone
calls from Defendant and the number of calls (Docket No. 30, Def. Response to Pl.
Statement ¶ 1). Defendant does not contest the other elements for a TCPA claim alleged
by Plaintiff.
C. Ownership of Cellphone and Lifeline
Both motions turn on whether Plaintiff was authorized to use the cellphone that
Defendant called. Defendant characterizes James’ action in allowing Plaintiff to use the
SafeLink cellphone as a transfer and (according to Defendant) not allowed under the
Federal Communications Commission regulations and Lifeline program guidelines for the
SafeLink phone. As Plaintiff contends, James shared use of the cellphone within a
household.
Defendant’s response to Plaintiff’s Motion for Summary Judgment argues the
threshold issue that Plaintiff could not legally use the cellphone that was allegedly called
(Docket No. 30, Def. Memo. at 4-9, 10). Defendant emphasized that the SafeLink phone
could not be sold or given away and that Plaintiff and James were not in the same
household (Docket No. 28, Def. Atty. Decl. ¶ 5; Docket No. 22, Def. Memo. at 2).
Defendant cites to the initial disclosure that Plaintiff lived at Apartment #10 (Docket
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No. 28, Def. Atty. Decl. ¶ 5, Ex. A) while James lived at Apartment #5 (id.; Docket No. 22,
Ex. A, Tracfone Subscriber Information).
Plaintiff explains that he and James lived at Apartment #5 and then together moved
to Apartment #10 at Kenmore Avenue apartment to avoid climbing stairs (Docket No. 31,
Pl. Reply at 2; id., James Aff. ¶¶ 2-5; cf. Docket No. 28, Def. Atty. Decl. ¶ 5). They lived
at Apartment #5 when James applied for a SafeLink phone (Docket No. 31, James Aff.
¶ 6) and in November 2016 (id. ¶ 7, Ex. A) when Plaintiff was first called by Defendant.
They allege that they shared resources and expenses (Docket No. 25, Pl. Aff. ¶¶ 3-5; id.,
James Aff. ¶¶ 3-5).
The record establishes that Plaintiff and James lived together at Apartment#10 and
then Apartment#5. While Defendant denies that James and Plaintiff shared resources
and expenses, Defendant offers no proof that they had separate incomes and expenses.
James and Plaintiff formed a household.
The SafeLink/Lifeline phone is for a household and intended to be shared within
that household (Docket No. 25, Pl. Memo. at 4). According to the application for Lifeline
program, if an applicant qualifies, “your household can get Lifeline for phone or internet
service, but not both” (Docket No. 22, Def. Ex. D, Application Form at 1; see also Docket
No. 26, Pl. Ex. H, Application Form at 1). “If you get Lifeline for phone service, you can
get the benefit for one mobile phone or one home phone, but not both” (Docket No. 22,
Def. Ex. D, Application Form at 1; see also Docket No. 26, Pl. Ex. H, Application Form at
1). The application then provides that “you are only allowed to get one Lifeline benefit
per household, not per person. If more than one person in your household gets Lifeline,
you are breaking the FCC’s rules and will lose your benefit” (Docket No. 22, Def. Ex. D,
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Application Form at 1 (emphasis in original); see also Docket No. 26, Pl. Ex. H, Application
Form at 1). The application defines a “household” as “a group of persons who live
together and share income and expenses (even if they are not related to each other)”
(Docket No. 22, Def. Ex. D, at 1; see also Docket No. 26, Pl. Ex. H, Application Form at
1). In giving examples of “households” later in the application, Lifeline stated that a
married couple who live together are a household and “they must share one Lifeline
benefit” and “an adult who lives with friends or family who financially support him/her are
one household. They must share one Lifeline benefit” (Docket No. 22, Def. Ex. D,
Household Worksheet, at 1; see also Docket No. 26, Pl. Ex. H, Household Worksheet, at
1).
The program’s regulation restricts the program phone to a single provider and a
single phone even if multiple members of the household are individually eligible for the
benefit (see Docket No. 22, Def. Ex. C, at 1 of 25; id., Def. Ex. D, Household Worksheet
at 3. In a “can you apply” worksheet, if applicant lives in household with another person
who already gets the benefit, that applicant is not eligible for the benefit because only
“one Lifeline discount per household, not per person” (Docket No. 22, Def. Ex. D,
Household Worksheet at 3).
Defendant here has defined too narrowly “household” to be merely the named
accountholder. The regulations Defendant cites (Docket No. 28, Def. Atty. Decl. ¶ 4;
Docket No. 22, Def. Ex. C, at 2, 7 of 25) 47 C.F.R. § 54.410(d)(1)(iv), prohibit more
permanent transfers of the Lifeline/SafeLink cellphones or those from a household that is
prohibited than the use of the cellphone within a household. The program regulations
also prohibit “the unauthorized unlocking or resale of your SafeLink Product” constituting
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a violation of the use agreement (Docket No. 22, Def. Ex. C, at page 7 of 25). These
regulations do not prohibit borrowing or using a cellphone within a household. The
intention of the transfer prohibition is to not have the discounted, federally subsidized
phones transferred, given, sold, or lent to ineligible persons or to persons not financially
related to the accountholder.
Defendant argues that James unlawfully transferred the cellphone to Plaintiff (see
id.), but this argument fails. There was no transfer here, but James and Plaintiff are
sharing the phone in a common household. A transfer occurs when the cellphone leaves
the household or given to person not within a household.
The Lifeline/SafeLink
regulations only preclude transfer of cellphones outside of a household.
These
regulations essentially require sharing within a household; for example, there are not
supposed to be multiple SafeLink cellphones in a household despite multiple persons
otherwise are eligible.
Defendant here does not dispute that Plaintiff and James shared resources and
expenses but contests generally that they actually lived together. Defendant is not
arguing that Plaintiff and James are merely roommates and did not share money or
expenses (cf. Docket No. 22, Def. Ex. D, Household Worksheet at 1; Docket No. 26, Pl.
Ex. H, Household Worksheet, at 1). Defendant also is not arguing that Plaintiff’s income
and expenses is an issue of fact. James and Plaintiff constitute a “household” under the
SafeLink/Lifeline program terms. The only factual issue Defendant raises is whether
James and Plaintiff occupy the same apartment; as held above, James and Plaintiff lived
in the same apartment and thus constitute a household.
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Since only one person per household can have a SafeLink cellphone, James
applied for the account. The cellphone here is the household cellphone for Plaintiff and
James. Perhaps a cleaner way to pursue this action would have been to have James
also sue for the alleged calls to the cellphone on her account. Such pleading is not
required under the TCPA.
Actionable conduct is the call to the cellphone number,
47 U.S.C. § 227(b)(1)(A)(iii), regardless who owned the account or possessed the
cellphone. An accountholder does not need to be a party in a TCPA action for unwanted
automated calls to that phone where, as here, the phone was used by others within the
accountholder’s household. For the exception under § 227 for the prior express consent
of the “called party,” the “called party” is the person who receive the call, Thomas v. Dun
& Bradstreet Credibility Corp., 100 F. Supp.3d 937, 942-44 (C.D. Cal. 2015); see
McCaskill v. Navient Solutions, Inc., 178 F. Supp.3d 1281, 1290 (M.D. Fla. 2016) (mother
held to be “called party” for family plan for cell service and defendant intended to call
daughter to collect a debt).
Defendant here, however, is not claiming James (or Plaintiff) consented to calls
from Defendant. The prior holder of the cellphone, Justin Wilson, consented. Defendant
is not arguing that Wilson is the called party; Defendant implicitly contends that if anyone
is the called party it is non-party James. Defendant bases this on its interpretation of the
Lifeline program and Federal Communications Commission regulations.
Plaintiff and James are in the same household and the cellphone with the -3641
number is the cellphone for their household. Plaintiff thus is the “called party” for consent
purposes but Plaintiff never consented to Defendant’s calls.
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Defendant’s Motion for Summary Judgment (Docket No. 22), and its objections to
Plaintiff’s contrary Motion for Summary Judgment (Docket No. 26), on the grounds that
Plaintiff could not lawfully state a TCPA claim is denied.
D. Number of Telephone Calls
Plaintiff established the elements for violations of TCPA, that he received calls from
Defendant to a cellphone from a person in the United States that were not for an
emergency purpose or for collection of a United States Government debt (Docket No. 26,
Pl. Statement ¶¶ 2-4, 11-14, 16-18; see Docket No. 26, Pl. Memo. at 2-3). The calls here
allegedly were for an automobile insurance policy (Docket No. 26, Pl. Statement ¶ 1), not
a federal debt or a debt secured by the United States, and the debt was not owed by
Plaintiff. These calls were made to Plaintiff without his express prior consent to receive
calls at that cellphone number (see Docket No. 26, Pl. Statement ¶ 18). Defendant admits
that automatic dialer and prerecorded voice were used (Docket No. 30, Def’s Response
to Pl. Statement ¶¶ 15-17).
Defendant alternatively disputes the number of calls to the cellphone, arguing that
Plaintiff’s summary judgment motion should be denied because of this material issue of
fact (Docket No. 30, Def. Response to Pl. Statement of Facts ¶ 1; id., Def. Memo. at 10).
This Court agrees; the number of Defendant’s calls to Plaintiff’s cellphone raises an issue
of fact.
In conclusory fashion Plaintiff claims that 108 calls were made to his cellphone,
citing to Defendant’s call log (Docket No. 26, Pl. Atty. Affirm. ¶ 6, Ex. E; see Docket
No. 30, Def. Memo. at 10) as proof.
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Defendant argues that the call log is not an accurate count of the number of calls
to a telephone number. Defendant counters that the proper measure is the records from
Plaintiff’s telephone service provider of calls that connected, rather than any record of
attempts to call (Docket No. 30, Def. Memo. at 10). Plaintiff’s service provider, SafeLink,
produced documents (Docket No. 30, Def. Ex. A; see Docket No. 30, Def. Memo. at 10)
for 29 connected calls from Defendant between November 10, 2016, to October 16, 2017,
months beyond when Plaintiff alleged, he was called. Defendant concludes that at the
most Plaintiff could claim only those 29 calls (Docket No. 30, Def. Memo. at 10).
This Court reviewed the produced records from SafeLink, but neither side
pinpointed Defendant’s telephone number to identify the offending, connected calls from
the 89 pages of produced SafeLink logs with each log page with over 20 entries of calls
made and received to that cellphone. While Defendant concedes in its motion that it
made 29 calls to the subject cellphone number, the record presented does not identify a
particular call.
This Court also reviewed the log of Defendant’s calls (Docket No. 26, Ex. E).
Defendant produced redacted telephone numbers Defendant called on various days
between November 2, 2016, through July 14, 2017. There are entries ending with the
redacted telephone number -3641 on at least once on each of the 108 pages of the
exhibit. What is not known, however, is if that redacted number in each of the found
entries is Plaintiff’s cellphone number, for it is possible that the entries could be for
different telephone number ending with those four digits.
These gaps in the record manifest a material issue of fact on the scope of
Defendant’s violations of Plaintiff’s rights under the TCPA.
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E. Consent for Calls
Defendant contends that it had consent from Wilson, the former accountholder for
the subject cellphone number, to allow for contact by that number (Docket No. 22, Def.
Statement ¶ 3, Ex. B; Docket No. 25, Pl. Response to Def’s Statement ¶ 3). Unbeknownst
to Defendant, the cellphone number was reassigned to James (Docket No. 30, Def.
Memo. at 2; see also Docket No. 22, Pl. Memo. at 2). Plaintiff, however, denies granting
consent to receive calls and denied owing Defendant a debt that necessitated
Defendant’s calls.
Issues not fully addressed by the parties are the effect of the consent of the former
owner on calls made (by mistake) to Plaintiff and James’ cellphone; whether Defendant
has a defense for mistakenly dialing what later became the wrong number, but cf. ACA
Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (Federal Communications Commission could
permissibly interpret “called party” in 47 U.S.C. § 227 to refer to current subscriber and
extinguish any consent given by prior subscriber); Simmons v. Charter Commc’ns, Inc.,
222 F. Supp. 3d 121, 134-36 (D. Conn. 2016) (defendant claiming regulatory safe harbor
in the do-not-call registry for calls made in error, 47 C.F.R. § 64.1200(c)(2)(i)). Defendant
has not invoked the safe harbor for the error of calling a reassigned cellphone number.
F. Motion Practice
Finally, the parties critique each other on how they submitted their moving papers.
Plaintiff objects to Defendant attaching exhibits to its Motion for Summary Judgment
without authenticating affidavit (Docket No. 25, Pl. Memo. at 2). Defendant retorts that
this is without merit; since Defendant had no facts within its knowledge that it could submit
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an affidavit, it attached the exhibits to its Statement of Facts (Docket No. 28, Def. Atty.
Decl. ¶ 1).
While Plaintiff raises this objection, he still cites to Defendant’s produced exhibits
(Docket No. 25, Pl. Memo. at 4 (citing Exhibits C, D to Defendant’s Motion)) regarding the
SafeLink/Lifeline program without questioning its authentication.
Resolution of Defendant’s Motion (or Plaintiff’s own Motion), however, does not
turn upon this evidentiary issue. This Court’s Local Civil Rule 56(a)(1) requires facts
stated in a movant’s Statement of Fact be supported by citation to evidence in admissible
form. It is true that this Court’s Local Civil Rule 7(a)(3) (cf. Docket No. 28, Def. Atty. Decl.
¶ 2) require affidavits to recite only “factual and procedural background relevant to the
motion it supports.” Defense counsel could have attached a covering affidavit for these
exhibits given their familiarity with the procedural background of this case.
Despite Plaintiff’s objection, he does not contest the validity of Defendant’s
exhibits. Thus, this is not grounds for denying Defendant’s Motion.
IV.
Conclusion
Defendant’s Motion for Summary Judgment (Docket No. 22) is denied; Plaintiff has
the authority to assert his TCPA claim despite not being the formal accountholder for the
cellphone that Defendant called. Plaintiff was in the household of the accountholder and
authorized to use the cellphone from that accountholder. He was the primary user of the
cellphone and answered each time Defendant called.
Plaintiff’s Motion for Summary Judgment (Docket No. 26) is denied because
Defendant raises material issues of fact on the number of calls Plaintiff received and
whether there was prior (bur now erroneous) consent.
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Despite Defendant’s denied opt-out motion (Docket No. 9, denied, Docket No. 10)
from alternative dispute resolution and the mediation session with Bruce Zeftel (Docket
No. 12), following resolution of these motions, this case should take another attempt at
alternative resolution prior to trial preparation and trial. Following disposition of these
motions, the parties are directed to contact Mr. Zeftel to schedule a further mediation
session. Referral for mediation will continue until November 1, 2021. This Court then will
hold a status conference 60 days from date of this Order, on May __, 2021/{Genevieve
for date} on the status of the mediation, this case, and the parties’ preparation for trial.
V.
Orders
IT HEREBY IS ORDERED, that Defendant’s Motion (Docket No. 22) for Summary
Judgment is DENIED.
FURTHER, that Plaintiff’s Motion (Docket No. 26) for Summary Judgment is
DENIED, consistent with this decision.
FURTHER, that this case is REFERRED for alternative dispute resolution under
Section 2.1.B of the Plan for Alternative Dispute Resolution in the United States District
Court for the Western District of New York (“the ADR Plan”).
FURTHER, that the parties shall re-engage with Mediator Bruce Zeftel and
participate in the mediation session as scheduled by Mr. Zeftel.
FURTHER, that within 10 days of the mediation session and any subsequent
sessions, the mediator shall file a Mediation Certification setting forth the progress of
mediation.
FURTHER, that the mediation process shall be completed by November 1, 2021.
FURTHER, that the parties shall timely comply with all relevant requirements of
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the ADR Plan, which is available at http://www.nywd.uscourts.gov.
FURTHER, that the parties shall appear before this Court on Wednesday, May 26,
2021, at 9:00 AM, to report on the status of this case if it is not sooner resolved through
mediation.
SO ORDERED.
Dated:
March 18, 2021
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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