Sharp v. Ally Financial, Inc.

Filing 57

DECISION AND ORDER denying 26 Motion for Summary Judgment; granting 30 Motion to Substitute; denying 47 Motion for Leave to File Supplemental Response; denying 48 Motion to Seal; granting 51 Motion for Leave to Cite Additional Authority; an d granting 53 Motion for Leave to File Supplemental Authority. The Clerk of Court is directed to substitute Kathleen J. Majewski, in her capacity as Administratrix of the Estate of William J. Sharp, as the party plaintiff in this action. Signed by Hon. Elizabeth A. Wolford on 09/10/2018. (CDH)-CLERK TO FOLLOW UP-

I(

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SEP 10 2018

/

<^7

VVENC;inT>^
WILLIAM JAY SHARP,
DECISION AND ORDER

Plaintiff,
6:I5-CV-06520 LAW
V.

ALLY FINANCIAL,INC.,
Defendant.

INTRODUCTION

Plaintiff William Sharp ("Plaintiff) asserts claims against defendant Ally Financial,
Inc.("Defendant") pursuant to the Telephone Consumer Protection Act of 1991,47 U.S.C.

§ 227("TCPA"), and New York State common law, alleging that he received hundreds of
harassing telephone calls from Defendant's representatives regarding an automobile loan
obtained from Defendant. (Dkt. 1 at 3). Plaintiff, diagnosed with stage four cancer,

contends that Defendant continuously contacted him by telephone to harass him about his
debt, causing great emotional distress. (Id. at 4-5). Plaintiff died during the pendency of
these proceedings. (Dkt. 28). As a result, Kathleen J. Majewski ("Majewski"), who has
been appointed the Administratrix of Plaintiffs Estate, seeks to be substituted as party
plaintiff in this action. (Dkt. 30).

Presently before this Court are Defendant's motion for summary judgment (Dkt.
26), Plaintiffs motion to substitute (Dkt. 30), Plaintiffs motion for leave to file a
supplemental response to Defendant's supplemental memorandum (Dkt. 47; see Dkt. 40),

1

Plaintiffs motion to seal(Dkt. 48), Plaintiffs motion for leave to cite additional authority

(Dkt. 51), and Defendant's motion for leave to file supplemental authority (Dkt. 53).
Because Plaintiffs TCPA claim did not abate upon his death, and for the additional reasons
discussed below. Defendant's motion for summary judgment is denied. Plaintiffs motion
to substitute is granted. Plaintiffs motion for leave to file a supplemental response is
denied. Plaintiffs motion to seal is denied. Plaintiffs motion for leave to cite additional

authority is granted, and Defendant's motion for leave to file supplemental authority is
granted.
BACKGROUND

On January 5, 2013,Plaintiff obtained an automobile loan from Defendant. (Dkt.
26-2 at ^ 1; Dkt. 29-1 at ^ 1). In October of 2014, Plaintiff was diagnosed with stage four
esophageal cancer. (Dkt. 29-9 at 3-4:11-13). Plaintiff began chemotherapy a week after
his diagnosis {id. at 4:13), and this treatment lasted until about June 2015 {id. at 5:20).
Plaintiff could no longer work while he received treatment, and he primarily relied upon

social security disability insurance payments for income. {Id. at 4:14-16). Soon thereafter.
Plaintiff fell behind on his loan payments and notified Defendant of his financial
circumstances. {Id. at 4-5:16-17).

Beginning in January 2015, Plaintiff was informed that his cancer had spread to his

brain, and he began receiving treatment for brain tumors. {Id. at 6:21-22). During that
same month. Plaintiff called Defendant to negotiate alternative payment terms, and
informed Defendant that he had cancer and was undergoing "chemotherapy and radiation
treatment." (M at 6-7:23-25).
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Plaintiff received telephone calls several days a week regarding his debt. (See id. at
7:25-26). Plaintifftestified that the frequent calls would "really irritate" him and made him
"feel even worse," (Id. at 7:27). The calls made him "emotionally stressed" and caused
him to "cry[] more" and to "worry[] more." (Id.). Plaintiff also testified that Defendant's

representatives told him that "if [he] fell behind, that they'd repossess the car." (Id. at
8:30). Plaintiff used the automobile to go to the "hospital on a semi-daily, semi-weekly
basis." (Id. at 5:17).

In June 2015, Plaintiff filed a complaint with the New York State Office of the
Attorney General ("NYSGAG"), claiming that he had received 24 calls within an 80minute period on June 19,2015. (Id. at 9:34; see Dkt. 29-6(NYSGAG complaint)). From

that point forward, the calls began to subside, and, on July 23, 2015, Defendant issued a
letter to Plaintiff, apologizing for the number of calls that had been made by one of its
representatives. (Dkt. 29-9 at 9:34-35; see Dkt. 29-7 (Defendant's letter)). Plaintiff
testified that the calls ceased by July 2015. (Dkt. 29-9 at 16:88).
PROCEDURAL HISTORY

Defendant moved for summary judgment, arguing two legal issues.

First,

Defendant contends that the TCPA claim should be dismissed because it abated upon

Plaintiffs death. (Dkt. 26-1 at 2-5).' In making this argument. Defendant relies primarily
upon the decision in Hannabury v. Hilton Grand Vacations Co., LLC, 174 F. Supp. 3d 768

(W.D.N.Y. 2016). The Hannabury court held that a consumer's private right-to-action

'

A Suggestion of Death was filed on August 23, 2016. (Dkt. 28).
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under § 227(b)(3) and § 227(c)(5) of the TCPA is "penal" in nature, and thus, it

extinguishes upon the party's death. Id. at 776. Second, Defendant argues that Plaintiffs
intentional infliction of emotional distress ("IIED") claim must be dismissed because

Plaintiff was not verbally abused or otherwise threatened by Defendant, and the only
harassing conduct alleged consists of the telephone calls themselves. (Dkt. 26-1 at 5-7).
In support. Defendant relies heavily upon the Second Circuit's decision in Conboy v. AT&T
Corp., 241 F.3d 242(2d Cir. 2001), which held that "numerous telephone calls from debt

collectors" did not constitute "extreme and outrageous" conduct where the plaintiffs were
"not physically threatened, verbally abused, or publicly humiliated in any manner." Id. at
258-59.

Plaintiff opposes Defendant's summary judgment motion, arguing that Hannabury

was wrongly decided, and that this Court should hold that the private right-to-action under
the TCPA is primarily remedial in nature. (Dkt. 29 at 5-12). Plaintiff also argues that
questions offact preclude summary judgment on his IIED claim because the instant matter
involves many more telephone calls than those observed in Conboy, and the fact that
Defendant continued to make these calls after discovering that Plaintiff suffered from

terminal cancer raises a question of fact as to whether the conduct was sufficiently
"outrageous." {Id. at 12-16).

Defendant subsequently filed a motion seeking leave to file a supplemental
memorandum in support ofits motion for summaryjudgment. (Dkt.40). Defendant argues
that the Second Circuit's decision in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51 (2d
Cir. 2017)requires that Plaintiffs TCPA claim be dismissed. (Dkt. 40-2 at 2-4). In Reyes,
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the Second Circuit held that "the TCPA does not permit a party who agrees to be contacted
as part of a bargained-for exchange to unilaterally revoke that consent." 861 F.3d at 56.

Defendant argues that Plaintiff consented to the receipt of the telephone calls at issue in
this case, and that he never appropriately revoked that consent. (Dkt. 40-2 at 3-4). In

opposition, Plaintiff argues that this Court should decline to follow Reyes because it will
likely be reversed en banc by the Second Circuit or be overturned by the Supreme Court.

(Dkt.42 at 2-3). Plaintiff also opposes the application ofReyes at this point in the litigation
because discovery has not yet concluded, and Plaintiff has not had the opportunity to
acquire information necessary to effectively confront this new argument. {Id. at 4-6).
Plaintiff subsequently filed a motion for leave to file a supplemental response to
Defendant's supplemental memorandum. (Dkt. 47). Plaintiff argues that the holding in
Reyes is inapplicable to the instant matter because the nature of the credit applications
involved in securing his automobile loan, as well as the terms of the retail installment

contract, indicate that he did not consent to the calls at issue in this case as part of a

bargained-for exchange. (Dkt. 47-1). Defendant opposes the motion for leave to file a
supplemental response, arguing that Plaintiff did not raise any of these arguments in his
initial opposition papers. (Dkt. 49 at 3-4). In addition. Defendant argues that the credit
applications involved in this matter are considered contracts under New York State law
and Second Circuit precedent, and that the retail installment contract did not contain an

integration clause; thus, Reyes remains applicable to this case. {Id. at 4-5). Plaintiff has
submitted reply papers opposing the arguments Defendant asserts in its response. (Dkt.

50). Plaintiff has also filed a motion to seal in connection with several documents

submitted in support of his motion for leave to file a supplemental response. (Dkt. 48).
On August 15, 2018, Plaintiff filed a motion for leave to cite additional authority,
requesting that this Court review the Sixth Circuit's recent decision in Parchman v. SLM

Corporation, 896 F.3d 728(6th Cir. 2018)in determining whether his TCPA claim abated
upon his death. (Dkt. 51). Defendant opposes the motion, arguing that Plaintiffs reliance
upon Parchman is inapposite and futile. (Dkt. 55).

On August 16, 2018, Defendant filed a motion for leave to file supplemental
authority, requesting that the Court consider the decisions in Harris v. Navient Sols., LLC,

No. 3:15-CV-564 (RNC), 2018 WL 3748155 (D. Conn. Aug. 7, 2018) and Few v.
Receivables Performance Mgmt., No. 1:17-CV-2038-KOB,2018 WL 3772863(N.D. Ala.

Aug. 9, 2018) in reviewing Defendant's arguments related to the application of Reyes.

(Dkt. 53). Plaintiff opposes Defendant's motion, arguing that the cases supplied by
Defendant are irrelevant and do not provide any additional bases justifying the application
of Reyes to the facts of this matter. (Dkt. 56).
DISCUSSION

The parties dispute whether the TCPA claim extinguished upon Plaintiffs death.
Defendant's first argument in its motion for summary judgment is that Plaintiffs TCPA
cause of action extinguished upon Plaintiffs death, and that this claim should not be

permitted to proceed upon the substitution of a new party plaintiff. (Dkt. 26-1 at 2-5).
Because the Court cannot rule upon Majewski's motion to substitute in regards to the
TCPA claim without also determining Defendant's first argument in its motion for
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summary judgment, the Court will address Defendant's motion for summary judgment
before turning to Plaintiffs motion to substitute.
I.

Defendant's Motion for Summary Judgment; The TCPA Claim

A.

Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes "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). The Court should grant summary judgment if, after considering the evidence in

the light most favorable to the nonmoving party, the court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007)(citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586-87(1986)).
"Where the non-moving party will bear the burden ofproofat trial, the party moving
for summary judgment may meet its burden by showing the 'evidentiary materials of

record, if reduced to admissible evidence, would be insufficient to carry the non-movanfs
burden of proof at trial.'" Rowe v. Wal-Mart Stores, Inc., 11 F. Supp. 2d 265, 266
(W.D.N.Y. 1998). Once the moving party has met its burden, the opposing party "'must
do more than simply show that there is some metaphysical doubt as to the material
facts.... [T]he nonmoving party must come forward with specific facts showing that there

is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(quoting Matsushita Elec., 475 U.S. at 586-87). "[T]he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported motion

for summaryjudgment...." Anderson v. Liberty Lobby,Inc., All U.S. 242,247-48(1986).
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B.

Plaintiffs TCPA Claim is "Remedial" and Has Not Extinguished Upon
Plaintiffs Death

"The Federal Rules, rather than state-law principles, govern the procedure for

substitution following a party's death, even where the court must apply state substantive
law." Graham v. Henderson,224 F.R.D. 59,63(N.D.N.Y.2004)(citing Servidone Constr.
Corp. V. Levine, 156 F.3d 414, 416 (2d Cir. 1998)). "If a party dies and the claim is not
extinguished, the court may order substitution of the proper party." Fed. R. Civ. P.
25(a)(1).

"Whether a claim survives or is 'extinguished' upon the death of a party is

determined by 'the nature of the cause of action for which the suit is brought.'" U.S. ex
rel. Coined v. Beth Isr. Med. Ctr., 603 F. Supp. 2d 677, 680(S.D.N.Y. 2009)(quoting Ex

parte Schreiber, 110 U.S. 76, 80 (1884)). "Absent some specific direction by Congress,
whether an action created by federal statutory law survives the death of the plaintiff is a
matter of federal common law." Estwick v. U.S. Air Shuttle, 950 F. Supp. 493, 498

(E.D.N.Y. 1996). "In general, under the federal common law,'a claim survives a party's
death if it is "remedial" rather than "punitive."' Unfortunately, the law with respect to

which claims fall on which side of the remedial/punitive line is not a model of clarity."
S.E.C. V. Wyly, 860 F. Supp. 2d 275,276(S.D.N.Y. 2012)(quoting Epstein v. Epstein,966
F. Supp. 260, 260(S.D.N.Y. 1997)); see Epstein, 966 F. Supp. at 261 ("[A]s the Supreme

Court has had repeated occasion to observe in recent years, terms like 'remedial' and
'punitive' are neither self-defining nor mutually exclusive."(citing United States v. Ursery,
518 U.S. 267, 277 (1996))). Indeed, it has been stated that "[t]he use of labels such as

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'penal' or 'remedial' is . . . unsatisfactory unless it is recognized as a shorthand way of
expressing relevant considerations." Derdiarian v. Futterman Corp., 223 F. Supp. 265,
271 (S.D.N.Y. 1963) (stating that "the statutes relied on here are meant to deter bad

practices in the sale of securities, as well as to afford compensation to persons injured
thereby").

Courts look to three factors to determine whether a civil action brought under
a statute is penal or remedial for purposes of survivability: "(a) whether the
purpose ofthe action is to redress individual wrongs or wrongs to the public;
(b)whether the recovery runs to the individual or the public; and(c)whether
the recovery is disproportionate to the harm suffered."
Hannabury, 174 F. Supp. 3d at 11A (quoting Estwick, 950 F. Supp. at 498).
1.

The Legislative History of the TCPA

"The language of a statute itself and its legislative history may be instructive in
determining whether the statute is remedial or penal." U.S. ex rel. Estate ofBotnick v.
Cathedral Healthcare Sys., Inc., 352 F. Supp. 2d 530, 532(D.N.J. 2005);see Epstein, 966
F. Supp. at 260("Neither the statutory language nor the legislative history of the [relevant

statute] specifically addresses whether a private civil claim survives a party's death."). The

legislative history of the TCPA indicates that the statute was meant to serve both
"remedial" and "penal" purposes.

The TCPA was intended "to protect the privacy interests of residential telephone

subscribers by placing restrictions on unsolicited, automated telephone calls to the home
and to facilitate interstate commerce by restricting certain uses of facsimile ([f]ax)
machines and automatic dialers." S. Rep. No. 102-178 at * 1 (1991). The personal cost to

individual victims of the abusive use of automated calling systems was another driving
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force behind the enactment of this statute. See id. at *13 ("When a person uses a voice
recording system from the telephone company,the person often is required to payfor every
message that is recorded. The amount ofthe payment often varies depending on the length
of the call."(emphasis added)). The Senate Report also described the bill as a mechanism

"to ban artificial or prerecorded messages to residential consumers and to emergency lines,

and to place restrictions on unsolicited advertisements delivered via fax machine." Id. at
*3(emphasis added).

Many of the passages found within the House Report reflect an intent to redress
individual harms. See, e.g., H.R. Rep. No. 98-1037 at *6(1991)(noting that the bill was
"designed to return a measure of control to both individual residential telephone customers
and owners of facsimile machines."). The bill sets forth rulemaking requirements that

would consider both "the most cost effective methods for preventing abuses" and the "costs

incurred by recipients." Id. To the latter consideration, the House Report stated that
"[ojnce a phone connection is made, automatic dialing systems can 'seize' a recipient's
telephone line and not release it until the prerecorded message is played, even when the

called party hangs up." Id. at *10. In addressing facsimile advertisers, the House Report

noted that the design of a fax machine required the recipient to bear some of the costs
associated with a transmission, and that such advertisements could render a machine

"unavailable for legitimate business messages while processing and printingjunk fax." Id.;
see also id. at *25 (noting that ''the recipient assumes both the cost associated with the use
of the facsimile machine and[] the cost of the expensive paper used to print out facsimile

messages[,] . . . regardless of their interest in the product or service being advertised."
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(emphasis added)). The House Report also indicated that automatic telephone dialing
systems may "seiz[e] the telephone lines of public emergency services, dangerously
preventing those lines from being utilized to receive callsfrom those needing emergency
services." Id. at *24(emphasis added).

While recognizing that "unsolicited commercial telemarketing calls are a
widespread problem," the House and Senate Reports focused on the personal frustrations
and invasion of privacy experienced by individual consumers in the receipt of these calls.

Id. at * 18; see S. Rep. 102-178 at *9("The reported bill will result in a significant benefit
in protecting the personal privacy of residential telephone subscribers. The evidence

gathered by the Committee indicates that a substantial proportion of the public believes
that these calls are a nuisance and an invasion of one's privacy rights in the home."); see
also H.R. Rep. No. 98-1037 at 24 (^\C\iistomers who pay additional fees for cellular

phones, pagers, or unlisted numbers are inconvenienced and even charged for receiving
unsolicited calls from automatic dialer systems." (emphasis added)); Becker v. Comput.
Scis. Corp., 541 F. Supp. 694, 702 (S.D. Tex. 1982) (noting that a statute was "more

remedial than penal," where it "serve[d] the dual purpose of providing a remedy for the

unauthorized intrusion into an individual's privacy while serving to deter wrongful conduct
by penalizing those who violate its provisions"). Accordingly, while the Senate and House

Reports evince a congressional design to deter a societal harm, the TCPA's foundations
emphasize the importance of remedying individual wrongs inflicted by these undesirable
business practices.

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Furthermore, during a Senate proceeding held on November 7, 1991, the TCPA
sponsor. Senator Hollings, proposed a "substitute amendment" to the TCPA to "address[]

an enormous public nuisance." 137 Cong. Rec. S16204-01 at *2(daily ed. Nov. 7, 1991)
(statement of Sen. Hollings). Senator Hollings discussed the "private right-of-action
provision," noting that it "will make it easier for consumers to recover damages from
receiving these computerized calls." Id. at *4(emphasis added). In addition, the Senator
believed that unless the provision was enacted to afford "consumers" an easier avenue "m

obtain damages from those who violate this bill, these abuses will undoubtedly continue."
Id. (emphasis added). These statements support the notion that while the desired effect of
the TCPA's enactment was to diminish the occurrence of inimical telephone and facsimile

practices in general, the primary purpose of the TCPA's private right-to-action provision
was to remedy the wrongs inflicted upon individual consumers.
2.

The TCPA, Like Most Modern Consumer Protection Statutes,
Serves Both Remedial and Penal Purposes

The TCPA's legislative history reveals that the statute was intended to serve dual

purposes. On one hand, it is clear that Congress enacted the TCPA to address the personal
frustrations and costs absorbed by the individual consumer. See Destination Ventures, Ltd.

V. F.C.C., 844 F. Supp. 632, 639 (D. Or. 1994)("The TCPA . . . has the purpose of
preventing the unfair shifting of advertising costs from the advertiser to the unwilling
consumer."), aff'd, 46 F.3d 54(9th Cir. 1995). The private right-to-action was included in
the bill so that afflicted consumers could recover damages resulting from the nuisance of

abusive telephone and facsimile practices, see 137 Cong. Rec. SI6204-01, at *4; a

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conclusion that suggests a more remedial character. On the other hand, it is equally
apparent that Congress sought to deter undesirable and injurious business behaviors. See
Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162, 1166 (S.D. Ind. 1997)(finding that the

$500 statutory damages remedy was intended to "effectively deter the unscrupulous
practice of shifting [business interruption] costs to unwitting recipients of 'junk faxes'"
(emphasis added)).

"Statutes giving a private action against the wrongdoer are sometimes spoken ofas
penal in their nature, but in such cases it has been pointed out that neither the liability
imposed nor the remedy given is strictly penal." Huntington v. Attrill, 146 U.S. 657, 667
(1892); see Murphy v. Household Fin. Corp., 560 F.2d 206, 211 (6th Cir. 1977)(holding
that while the Truth in Lending Act served both remedial and penal purposes, "Congress

focused on the individual consumer of credit as the person primarily injured who should

be encouraged to prosecute actions and should be allowed to recover directly and
adequately for harms done"); see also Lowe v. Experian, 340 F. Supp. 2d 1170, 1176(D.
Kan. 2004) ("[T]he [Fair Credit Reporting Act], like many federal statutes allowing a
private cause of action, displays both penal and remedial characteristics."). Indeed,"most
modem social welfare legislation" serves the "dual purpose of remedying harm to the
individual and deterring socially inimical business practices." Porter v. Household Fin.

Corp. ofColumbus, 385 F. Supp. 336, 342(S.D. Ohio 1974); see Murphy,560 F.2d at 211
(finding that "[t]he Tmth in Lending Act ultimately serves the dual purpose of providing a
remedy for harm to the monetary interests of individuals while serving to deter socially
undesirable lending practices"); see also Derdiarian, 223 F. Supp. at 271 ("Quite clearly
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the statutes relied on here are meant to deter bad practices in the sale of securities, as well
as to afford compensation to persons injured thereby."). "While other courts have also
acknowledged the dual remedial and penal nature of penalties assessed under consumer

protection statutes, those courts have often found those penalties to be remedial, not penal,
in nature." F.T.C. v. Capital City Mortg. Corp., 321 F. Supp. 2d 16, 22 (D.D.C. 2004)
(citing Citronelie-Mobile Gathering, Inc. v. O'Leary, 499 F. Supp. 871, 887 (S.D. Ala.
1980)(finding that while the relevant statute had the "dual purpose" of"remedying harm
to the individual" and "deter[ing] prohibited business practices for the good ofthe general
public," the statute's "purpose is not primarily punishment for an infraction of a public
law"), aff'd as modified sub nom. Citronelle-Mobile Gathering, Inc. v. Edwards,669 F.2d
717(Temp. Emer. Ct. App. 1982)).
3.

The Three Survivability Factors and the Hannabury Decision

a.

The Primary Purpose ofthe TCPA Private Right-to-Action
is to Redress Individual Wrongs

Plaintiff argues that Hannabury was wrongly decided because the TCPA is a

remedial statute. About 18 months ago,the Second Circuit expressly endorsed the remedial
nature ofthe TCPA in the context of pleading requirements. See Physicians Healthsource,
Inc. V. Boehringer Ingelheim Pharm., Inc., 847 F.3d 92, 96(2d Cir. 2017)("'Because the
TCPA is a remedial statute, it should be construed to benefit consumers.'"(quoting Gager

V. Dell Fin. Servs., LLC, 121 F.3d 265, 271 (3d Cir. 2013))). However, this Court is

reluctant to view that single statement as determinative of whether a TCPA private rightto-action claim is "penal" or "remedial" for purposes of survivability. See Schimpf v.

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Gerald, Inc., 2 F. Supp. 2d 1150, 1158 (E.D. Wis. 1998) (finding that "[a] multipledamages provision's dual nature can result in it being considered more like a compensatory
remedy" for some purposes, "while being considered more like a penalty" for others);
Lincoln Nat. Life Ins. Co. v. Silver, No. 86 C 7175, 1990 WL 160037, at *4(N.D. 111. Oct.

15,1990)(stating that where statutes contain "elements that are both penal and remedial[,]
... depending on the context, a claim may be characterized one way or the other").

As noted by the Hannabury court, there is a divergence of authority on whether the
TCPA is remedial or penal. See Hannabury, 174 F. Supp. 3d at 774; compare USFax Law
Ctr., Inc. V. iHire, Inc., 362 F. Supp. 2d 1248, 1253(D. Colo. 2005), with Hartford Ins. Co.

ofthe Midwest v. Meecorp Capital Mkts., LLC, No. 10-CV-6441(DMC)(MF), 2012 WL
12905847, at *4-5 (D.N.J. Dec. 27, 2012), and Hooters ofAugusta, Inc. v. Am. Glob. Ins.

Co.,212 F. Supp. 2d 1365,1375(S.D. Ga.2003),aff'd, 157 F. App'x 201 (11th Cir. 2005);
see also Physicians Healthsource, Inc. v. Janssen Pharm., Inc., No. 12-2132(FLW),2013

WL 486207, at *4 n.3 (D.N.J. Feb. 6,2013)("[TJhere is no general consensus amongst the
districts as to the nature of TCPA.").

In applying the first of the three survivability factors, the Hannabury court

determined that "the primary purpose of a private action under Section 227(b) and 227(c)
of the TCPA is to redress wrongs to the public as opposed to individual plaintiffs."

Hannabury, 174 F. Supp. 3d at 775. In reaching this conclusion, the Hannabury court
relied upon the Supreme Court's decision in Mims v. Arrow Fin. Servs., LLC,565 U.S. 368
(2012), where—in its introductory statements—^the Supreme Court noted that
"[vjoluminous consumer complaints about abuses of telephone technology—for example,
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computerized calls dispatched to private homes—^prompted Congress to pass the TCPA."
Id. at 370-71. However, Mims did not pertain to the issue before this Court—^rather, it

addressed simply "whether Congress granted state courts exclusive jurisdiction over
private actions brought under the TCPA." Id. at 376.

The Supreme Court recited Senator Rollings's contempt for the types of telephone

calls used to exploit individual privacy rights. See id. at 384. Specifically, Senator
Rollings stated that "[cjomputerized calls are the scourge of modem civilization. They
wake us up in the moming;they interrupt our dinner at night;they force the sick and elderly
out of bed; they hound us until we want to rip the telephone right out of the wall." 137
Cong. Rec. S16204-01 at *3; see Hannabury, 174 F. Supp. 3d at 775. While certainly a

recognition ofthe rampant harm that may arise from unregulated computerized telephone
calls. Senator Rollings's statement does little to support the notion that the TCPA is
primarily intended to deter, rather than to remedy, the harms caused to individual
consumers.

In any event, even if such intent could be discemed from that lone statement, the

legislative history outlined above indicates that this statute was primarily concerned with
remedying individual harms and providing incentives for consumers to pursue redress,
while also deterring abusive telephone and facsimile practices. See also Mims,565 U.S. at
385 ("[T]he views of a single legislator, even a bill's sponsor, are not controlling.").

Indeed,just last month, the Sixth Circuit—in a matter offirst impression for that Circuit—
explicitly disagreed with Hannabury and held "that claims under the TCPA are best

characterized as remedial," and thus, such claims "do survive a plaintiffs death."
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Parchman v. SLM Corp., 896 F.3d 728, 740-41 (6th Cir. 2018). In analyzing the first
abatement factor, the Parchman court stated that simply because "the harm is widely
shared does not mean it is a general public wrong[, since t]hese are harms felt by
identifiable individuals, as individuals[, and t]hey are not harms felt by the general public,
as a community." Id. at 739. The Sixth Circuit also relied upon the same line of cases that

this Court has cited above, which describe consumer protection statutes as primarily
remedial in nature despite serving a concurrent purpose of redressing widespread social
problems. Id. at 739-40.

The Hannabury decision also emphasized that the plaintiff did not seek "actual

redress for an individual wrong." Hannabury, 174 F. Supp. 3d at 776. 47 U.S.C.
§ 227(b)(3)(B) provides that a private individual may maintain "an action to recover for
actual monetary loss from such a violation, or to receive $500 in damages for each such
violation, whichever is greater." (emphases added). The plaintiff in Hannabury did not
request "actual damages" and premised his entire claim upon the statutorily fixed damages

amount. Hannabury, 174 F. Supp. 3d at 776. Although the facts alleged by Plaintiffin the
present case certainly appear more egregious than those at issue in Hannabury, and

Plaintiff generally alleges "actual damages" in his complaint (Dkt. 1 at ^ 1), the record
facts do not indicate that any "actual monetary losses" were associated with the receipt of
these phone calls. Instead, it appears that Plaintiff seeks the statutorily fixed damages

amount of $500 per violation {id. at ^ 39) and relies upon the mere fact that he received
such calls for purposes of his TCPA claim. As such, the relief requested by Plaintiff is not
vastly different from that sought by the plaintiff in Hannabury.
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With that said, the TCPA's statutory damages provision is not strictly penal in
character. In Universal Underwriters Ins. Co. v. Lou Fusz Auto. Network, Inc., 401 F.3d

876 (8th Cir. 2005), the Eighth Circuit construed § 227(b)(3)'s damages clause in the
context of an insurance policy and acknowledged the various policy reasons that weighed
against finding the statutory damages provision to be penal in that context. Id. at 881;
Hannabury, 174 F. Supp. 3d at 776 (noting that "in the insurance context, there are policy
considerations at play that counsel against construing the TCPA as penal in nature"). The

Eighth Circuit determined that the statutorily fixed damages were available "at least in part,
[as] an incentive for private parties to enforce the Act." Universal Underwriters Ins. Co.,
401 F.3d at 881 (emphasis added). The Eighth Circuit stated,"[wjhether we view the fixed
award as a liquidated sum for actual harm or an incentive for aggrieved parties to act as

private attorneys general, or both, it is clear that the fixed amount serves more than purely
punitive or deterrent goals." Id. Moreover, the fact that treble damages are "available
separate from fixed damages strongly suggests that the fixed damages serve additional
goals other than deterrence and punishment." Id.(emphases added);see Penzer v. Transp.
Ins. Co., 545 F.3d 1303, 1311 (11th Cir. 2008)("The TCPA provides for $500 statutory

damages and for treble damages for willful or knowing conduct, which is an indication that
the statutory damages were not designed to be punitive damages." (citation omitted)),

certified question answered, 29 So. 3d 1000 (Fla. 2010); Forman v. Data Transfer, Inc.,
164 F.R.D. 400, 404 (E.D. Pa. 1995)("The [TCPA] provides for a minimum recovery of
$500 for each violation as well as treble damages if the plaintiff can prove [a] willful or
knowing violation.... The statutory remedy is designed to provide adequate incentive for
- 18-

an individual plaintiff to bring suit on his own behalf." (citation omitted)); see also Alea
London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 778 (11th Cir. 2011)("[GJiven the
relatively small amount of statutory damages available under the TCPA, trebling these
damages appears to be a mechanism to encourage victims ofunsolicited 'junk' faxes to file
suit."); see generally Cook County v. Chandler, 538 U.S. 119, 131 (2003)("In qui tam

cases the rough difference between double and triple damages may well serve not to punish,
but to quicken the self-interest ofsome private plaintiff who can spot violations and start
litigating to compensate the Government, while benefiting himself as well." (emphases
added)).

Senator Hollings noted that if an avenue for private redress was not provided to
consumers, the abuses wrought by unregulated automated transmissions would

"undoubtedly continue." See 137 Cong. Rec. S16204-01, at *4. While it may be inferred
from this statement that deterrence was the primary goal of the statute. Senator Hollings

also noted that the very purpose of the private right-to-action provision was to "make it
easier for consumers to recover damages from receiving these computerized calls." Id.

(emphasis added). As the cases cited above illustrate, statutorily fixed-damages provisions
also constitute an incentive to litigate—especially where any "actual monetary losses"
would likely be low—and are not of a purely punitive nature; rather, such statutory

damages serve primarily as a mechanism to achieve the remedial purposes of the TCPA.
See Penzer, 545 F.3d at 1311; Underwriters Ins. Co. v., 401 F.3d at 881; Forman, 164
F.R.D. at 404.

19-

Likewise,the availability oftreble damages is not necessarily indicative ofa "penal"
character. To the contrary, treble damages provisions have frequently been construed as
an additional incentive for individuals to seek redress of personal wrongs. See, e.g..
Underwriters Ins. Co., 401 F.3d at SSl',Alea London Ltd., 638 F.3d at 778; see Matter of
Wood, 643 F.2d 188, 193 n.l2 (5th Cir. 1980)(stating that section 130 of the Truth in
Lending Act "is not made penal by the fact that the statute allows cumulative recoveries as

a vehicle for encouraging enforcement"); see also Murphy, 560 F.2d at 210 ("[T]he
Supreme Court,[the Sixth Circuit,] and the courts of numerous other circuits have held a

number of statutory schemes authorizing multiple recoveries and minimum recoveries
greater than actual damages to be remedial and not to impose penalties where the wrong
addressed by the statute is primarily a wrong to the individual."(citing Porter,385 F. Supp.

at 342(collecting cases))); see generally Mourning v. Family Publ'ns Serv., Inc., 411 U.S.

356, 376(1973)(noting that the Truth in Lending Act "provides that the penalty assessed
shall be twice the amount of the finance charge imposed, but not less than $100," but
declining to give that section a penal character where "the civil penalty prescribed is modest
and the prohibited conduct clearly set out in the regulation").

The Hannabury decision also discusses the fact that many ofthe cases that construed
the TCPA as a remedial statute involved facsimile practices or dealt with insurance

policies. See Hannabury, 174 F. Supp. 3d at 774-75. In particular, the Hannabury court
viewed the facsimile cases as based on the absorption of"tangible costs in receiving the

fax, namely, the paper and toner required for printing," and found that such costs were not

present in the case of a phone call recipient. Id. at 775. The Hannabury court also
-20-

determined that the policy implications disfavoring a "penal" determination in the context
of an insurance policy were not applicable to a case outside the insurance context. Id. at
774-75. However, the legislative history of the TCPA indicates that Congress was
concerned with other costs and priorities beyond those associated with facsimile
transmissions when it enacted the TCPA. See Kenro,Inc.,962 F. Supp. at 1166("Congress

was concerned with more than the cost offax paper when it established the $500 statutory
damages remedy."); see also Parchman, 896 F.3d at 739 n.4 ("It would be a mistake to
limit [the] view of the harms associated with a violation of the TCPA to only actual

monetary damages, because the harm from these calls is not so limited."). Notably, the

Eighth Circuit concluded that Congress intended to enact a "remedial" mechanism into the
statutory framework irrespective of the insurance policy at issue, see Underwriters Ins.
Co.,401 F.3d at 881, and the Sixth Circuit came to the same conclusion after analyzing the

survivability of a TCPA claim in the context of autodialed and prerecorded phone

messages, Parchman, 896 F.3d at 731-32, 740-41. As such, the Court does not find the
Hannabury court's differentiation between facsimile communications and telephone calls,
or its distinction between survivability and insurability, to be persuasive in determining the
nature of the TCPA private right-to-action.

Finally, the Court notes that the Hannabury court relied on US Fax Law Ctr., Inc.
V. iHire, Inc., 362 F. Supp. 2d 1248(D. Colo. 2005), which determined that TCPA claims
were not assignable because, under Colorado law, the TCPA private right-to-action
provision was penal in nature. Id. at 1253. The Colorado district court stated that"[cjourts
considering the TCPA have uniformly concluded it was enacted to address a public harm."
-21 -

Id. In support of this proposition, the Colorado court cited a Western District of Texas

case, which—much like this Court—^noted that "the TCPA damages provision was not
designed solely to compensate each private injury caused by unsolicited fax
advertisements, but also to address and deter the overall public harm caused by such
conduct." Texas v. Am. Blastfax, Inc., 121 F. Supp. 2d 1085, 1090 (W.D. Tex. 2000)
(emphasis added). Am. Blastfax, Inc. involved a due process challenge to the TCPA
damages provision and does not offer much insight into the survivability of TCPA claims.
However, despite Am. Blastfax, Inc.'s recognition of the dual compensatory and deterrent
purposes of the TCPA,the Colorado court relied on it in iHire without explaining why the

TCPA was, nevertheless, primarily "enacted to address a public harm."^ See also

^

In a subsequent decision, the same Colorado District Court Judge referenced the

first IHire decision,see US Fax Law Ctr., Inc. v. (Hire, Inc., 374 F. Supp. 2d 924, 928(D.
Colo. 2005) ("[The djefendants contend that claims under the [Colorado Consumer
Protection Act] are not assignable because the statute is penal in nature. 1 concluded this
was true for the TCPA claim in this case."(citing iHire, Inc., 362 F. Supp. 2d 1248)), aff'd,
476 F.3d 1112 (10th Cir. 2007). On appeal, the Tenth Circuit declined to address that
portion of the district court's holding. See US Fax Law Ctr., Inc. v. iHire, Inc., 476 F.3d
1112, 1120 (10th Cir. 2007)(declining "to address the district court's alternative holding
that TCPA claims are unassignable because they are penal in nature" since the TCPA
claims "are in the nature of personal-injury, privacy claims," and thus, are not assignable).
The Tenth Circuit has since held that "the TCPA's statutory damages are penal under
Colorado law." Ace Am. Ins. Co. v. Dish Network, LLC, 883 F.3d 881, 888 (10th Cir.
2018)(emphasis added); compare Kruse v. McKenna, 178 P.3d 1198, 1201 (Colo. 2008)
(stating the test under Colorado law), with Estwick, 950 F. Supp. at 498 (stating the test
under federal law). The Court notes that the Colorado Supreme Court has since had
occasion to revisit Kruse and has overruled it to the extent that its holding was inconsistent
with the plain language ofColorado's survival statute. Guarantee Tr. Life Ins. Co. v. Estate

ofCasper by & through Casper,418 P.3d 1163, 1168-69(Colo. May 29,2018). While the
Colorado Supreme Court has noted that the Kruse test may still be appropriate in certain
contexts, it appears its usefulness has been limited to cases "where the intent of the
legislature is not clear from the plain meaning of the relevant statutory text when viewed
-22-

Parchman, 896 F.3d at 738 ("[T]he primary purpose of the TCPA was to protect
individuals from the harassment, invasion of privacy, inconvenience, nuisance, and other
harms associated with unsolicited, automated calls."); see generally Van Patten v. Vertical
Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017)("Congress sought to protect

consumers from the unwanted intrusion and nuisance of unsolicited telemarketing phone
calls and fax advertisements."); Physicians Healthsource, Inc., 847 F.3d at 99("Congress
undertook to limit the use in commerce of certain methods of communication that impose

costs, hardships, and annoyances on unwilling recipients."). This Court is not persuaded
by iHire. Not only is iHire's holding based upon Colorado law, but it also provides no
meaningful inquiry into the dual purposes served by a TCPA private right-to-action.

On balance, considering the various points set forth above,this Court concludes that
the first factor weighs in Plaintiffs favor because the primary purpose ofthe TCPA private

right-to-action provision is to redress individual wrongs. The Court recognizes that this
conclusion differs from the Hannabury court's holding. While reasonable arguments can

be made in support ofeach conclusion,for the reasons set forth above,this Court concludes

that the purpose ofthe action is to redress individual wrongs,and thus the first survivability
factor weighs in favor of a "remedial" determination.
b.

Recovery Runs to the Individual

By its expressed language,the TCPA provides for recovery by the private "person,"
and thus, "any award of damages . . . goes to the recipient of the call, not the public."

in the context ofthe statutory scheme as a whole." Rooftop Restoration, Inc. v. Am. Family
Mut. Ins. Co., 418 P.3d 1173, 1176(Colo. May 29, 2018).
-23-

Hannabury, 174 F. Supp. 3d at 776. Thus, as did the court in Hannabury, this Court
concludes that the second factor in determining whether a TCPA private action is "penal"
or "remedial" weighs in favor of a "remedial" determination. See Parchman, 896 F.3d at

740("As to the second factor, recovery under the statute runs to the harmed individual and
not the public, suggesting TCPA claims are remedial.").
c.

The Remedy is Disproportionate to the Harm

In applying the final factor,the Hannabury court emphasized that a $500 award may
be granted for each and every violating phone call under the TCPA,which could be trebled
to $1,500, and concluded that such recovery is "wholly disproportionate to the harm
suffered." Hannabury, 174 F. Supp. 3d at 776. This Court agrees with that conclusion.
Several courts have concluded that the amount of actual monetary loss arising from a

TCPA violation is generally expected to be minimal. See, e.g.,Alea London Ltd.,638 F.3d
at 778; Underwriters Ins. Co., 401 F.3d at 881; Forman, 164 F.R.D. at 404. Senator

Rollings' statements on the Senate floor further confirm that the purpose of the private
right-to-action provision is to provide an accessible remedy to encourage consumers to

seek redress. See 137 Cong. Rec. S16204-01, at *4. This statutory scheme was designed

with a damages provision that would inherently produce disproportionate recoveries in
comparison to the harm inflicted in order to incentivize individual consumers to protect
their rights. See Hannabury, 174 F. Supp. 3d at 776 ("The reality is that the TCPA's

damages provision is specifically designed to be disproportional to the harm suffered; such
disproportion both deters the violative conduct and 'encourage[s] victims to bring suit to
redress violations.'"(quoting Universal Underwriters Ins. Co. v. Lou Fusz Auto. Network,
-24-

Inc., 300 F. Supp. 2d 888,893(E.D. Mo. 2004), aff'd, 401 F.3d 876(8th Cir. 2005))); see,
e.g.,Kenro, Inc., 962 F. Supp. at 1166;Forman, 164 F.R.D. at 404. Accordingly,the Court

concludes that recovery of damages of up to $1,500 per violation would be significantly
disproportionate to the harm caused by a single telephone call, and thus, the third factor

suggests that the private right-to-action claim is "penal" in nature. See Parchman, 896
F.3d at 740 (finding that "the treble damages provision is more likely disproportionate

because it gives the court discretion to increase damages that, at $500 per call, are already
greater than actual damages in most cases").

While the Court's analysis under the third factor indicates that the remedy afforded
can be disproportionate to the harm inflicted, this conclusion does not outweigh the Court's
determination that the first two factors suggest the TCPA private right-to-action is

"remedial." Other statutory frameworks have been described as "remedial" despite having
authorized multiple and minimum recoveries exceeding actual damages See Malvino v.
Delluniversita, 840 F.3d 223, 230 (5th Cir. 2016)("[T]he availability of treble damages
under RICO does not prevent it from being classified as a remedial statute. The Supreme
Court has 'repeatedly acknowledged that the treble-damages provision contained in RICO

itself is remedial in nature.'"(quoting PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401,

406(2003))); Murphy, 560 F.2d at 210(stating that the Truth in Lending Act is "not made
penal by the fact that the statute allows cumulative recoveries as a vehicle for encouraging
enforcement"); see also Faircloth v. Finesod, 938 F.2d 513, 518 (4th Cir. 1991)(stating

that "civil RICO is a square peg, and squeeze it as we may, it will never comfortably fit in

-25

the round holes of the remedy/penalty dichotomy," but concluding, nevertheless, that "the
primary purpose ofthe private right of action created by RICO is remedial").
Furthermore, as the Parchman court noted,"the TCPA gives the court discretion to
decide in each case whether and how much to increase damages." 896 F.3d at 740. This
discretion "allows the court to evaluate the facts of a particular case and, perhaps, the harm

caused to the plaintiff by the defendant's violations in determining the appropriate level of
damages," id., moderating the penal nature of the TCPA remedy. Indeed, to find this
statutory framework to be penal in nature simply because one of its remedies permits a
disproportionate recovery would undermine the dual purposes of the statute. See SEC v.
Brooks, No. 07-61526-CIV, 2017 WL 3315137, at *7 (S.D. Fla. Aug. 3, 2017)("Courts
have concluded a statute is remedial in the abatement context even when the amount of

damages appears disproportionate from the harm suffered if the overall purpose of the
statute is intended to remedy a wrong to an individual as opposed to a wrong against the
state."); see also Hooters ofAugusta, Inc.,272 F. Supp.2d at 1376("Even were the trebling

portion of § 227 considered to be penal in nature, this one factor cannot transform § 227

into a penal statute. To find otherwise would be to treat this one fact as dispositive thereby

nullifying all the other indications that the statute is remedial."); Citronelle-Mobile
Gathering, Inc., 499 F. Supp. at 887 (noting that the "second factor, taken in the abstract,
weighs in favor ofcharacterizing this relief as penal," but holding that the Truth in Lending
Act is remedial); but see Int'l Cablevision, Inc. v. Sykes, 172 F.R.D. 63, 69 (W.D.N.Y.

1997)(holding that a statute was penal in nature, despite the fact that the first two factors
suggested the statute was "remedial," where there was no effort "on the part of [the]
-26-

plaintiff to demonstrate the actual damages it suffered, [and] the $10,000 minimum
damages prescribed by the statute is disproportionate to the harm caused").

The decisions ofother district courts, including decisions from the same district, are
"relevant and persuasive." Baldanzi v.

WFC Holdings Corp., No. 07 Civ.

9551(LTS)(GWG), 2008 WL 4924987, at *3 (S.D.N.Y. Nov. 14, 2008). However, "the

decisions of district courts, even those located within the same district, are not binding on
other district courts." Arculeo v. On-Site Sales & Mktg., LLC, 321 F. Supp. 2d 604, 609
(S.D.N.Y. 2004), aff'd, 425 F.3d 193 (2d Cir. 2005). Accordingly, the Court declines to
follow the rationale and the conclusion set forth in Hannabury to the extent discussed

above, and holds that a private claim brought pursuant to § 227(b)(3) and § 227(c)(5) of
the TCPA is primarily of a "remedial" nature, and thus, it did not extinguish upon
Plaintiffs death. See Parchman, 896 F.3d at 740-41 (holding that the TCPA is a remedial
statute and simply because it '"allows for accumulated recovery does not convert an

otherwise remedial statutory scheme into a penal one'"(quoting Murphy,560 F.2d at 210)).
Therefore, Defendant's motion for summary judgment is denied insofar as
Defendant argues that the TCPA claim abated upon Plaintiffs death.
II.

Defendant's Motion for Summary Judgment; IIED Claim

A.

There are Questions of Fact Regarding Whether Defendant's Actions
Were "Extreme and Outrageous"

In order to establish a claim of IIED under New York law,"a plaintiff must prove
four elements: '(i) extreme and outrageous conduct;(ii) intent to cause, or disregard of a
substantial probability of causing, severe emotional distress; (iii) a causal connection

-27-

between the conduct and injury; and (iv) severe emotional distress.'" Medcalf v. Walsh,
938 F. Supp. 2d 478, 488 (S.D.N.Y. 2013)(quoting Howell v. N.Y. Post Co., 81 N.Y.2d
115, 121 (1993)). '"Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.'"
Stuto V. Fleishman, 164 F.3d 820, 827(2d Cir. 1999)(quoting Howell, 81 N.Y.2d at 123).

Defendant relies heavily upon Conboy v. AT&T Corp., 241 F.3d 242(2d Cir. 2001),
where the defendant's representatives "telephoned [the] plaintiffs at their unlisted home
telephone number between thirty and fifty times seeking information about [their adult
daughter-in-law]'s whereabouts." Id. at 247. "The telephone calls were made repeatedly,
and some were made at unusual hours." Id. However,the Second Circuit determined that

the plaintiffs "were not physically threatened, verbally abused, or publicly humiliated in
any manner," but were "only harassed with numerous telephone calls from debt collectors."
Id. at 258-59. As a result, the court held that "[t]his conduct is not so outrageous as to 'go

beyond all possible bounds of decency' or to be regarded as 'utterly intolerable in a
civilized society.'" Id. at 259(quoting Stuto, 164 F.3d at 827).

Defendant seizes upon this language in arguing that because no threats or verbal
abuse was present under the instant facts, as a matter oflaw. Plaintiff cannot prevail on his
IIED claim based upon Defendant's repeated telephone calls. {See Dkt. 26-1 at 5-6

(arguing that Plaintiffs IIED "claim fails as a matter of law because telephone calls from
debt collectors do not rise to the level of outrageousness necessary to support an [IIED]
claim")). Plaintiff responds that Conboy should not be interpreted so expansively and
-28-

offers several cases in support of the proposition that a "planned campaign" of harassing
telephone calls can raise a question offact as to the severity ofthe conduct involved. {See
Dkt.29 at 12-16). Although the federal cases cited by Plaintiffare factually distinguishable
in some respects, the Court finds that Plaintiffhas successfully raised a question of material
fact as to whether Defendant's conduct was "extreme and outrageous."
The Court has jurisdiction to entertain Plaintiffs IIED claim under pendent or
supplemental jurisdiction. iSee 28 U.S.C. § 1367(a). "In applying pendent jurisdiction,

federal courts are bound to apply state substantive law to the state claim." Promisel v. First

Am. Artificial Flowers, Inc., 943 F.2d 251, 257(2d Cir. 1991). Plaintiff points to several
New York decisions that stand for the proposition that a planned campaign of harassing
calls may constitute extreme and outrageous behavior necessary to support an llED claim.
See Gill Farms Inc. v. Darrow,256 A.D.2d 995,997(3d Dep't 1998);Flatley v. Hartmann,

138 A.D.2d 345, 346(2d Dep't 1988); Long v. Beneficial Fin. Co. ofN.Y., 39 A.D.2d 11,
13 (4th Dep't 1972); see also Allam v. Meyers, No. 09 Civ. 10580(KMW), 2011 WL
721648, at *8 (S.D.N.Y. Feb. 24, 2011)("The Appellate Division has also found the

existence of a campaign where a defendant made repeated telephone calls to the plaintiffs
house only to hang up as soon as someone answered, but where no actual threats appear to
have been made."(quotation marks and citations omitted)).

Plaintifftestified that while he received only one call a week during January of2015,
if he did not answer his phone. Defendant's representatives might call back four to eight
times until he answered. {See Dkt. 29-9 at 7:25-26). In February 2015, Plaintiff began to
receive about five to ten calls a day. {Id. at 8:31). The telephone calls continued into the
-29-

subsequent months, and it was only after Plaintiff filed a complaint with the NYSOAG on
June 24, 2015, that the number of calls began to decline. {See id. at 9:34). Plaintiff

confirmed that he filed his NYSAOG complaint because he had received 24 telephone calls
within an 80-minute period on June 19,2015. {See id. at 14-15:79-83; see also Dkt. 29-6).

Notably, Defendant's July 23, 2015, letter did not deny that Plaintiff received a multitude
of calls on June 19, 2015, but instead, indicated Defendant's "regret that [Plaintiff] was
subjected to multiple calls by a[]... representative." (Dkt. 29-7).

Plaintiff has also submitted a log oftelephone calls, purporting to demonstrate that

he received at least 331 calls from Defendant between January 2015 and June 2015. {See
Dkt. 29-8; Dkt. 29-10 at ^ 3). Although it is undisputed that Defendant's representatives
did not threaten, humiliate, or otherwise verbally abuse Plaintiff during these phone calls.
Defendant was on notice ofPlaintiffs vulnerable condition—stage four esophageal cancer
that had metastasized to his brain. {See Dkt. 29-9 at 6-1, 19:125). Despite Defendant's

awareness of Plaintiffs medical condition. Defendant's representatives continued to call
Plaintiff with persistent regularity. Plaintiff testified that he was told that if he could not

make his payments, he would lose his automobile, which he relied upon to reach his cancer
treatment. {Id. at 5:17, 8:30). Plaintiff also testified that he found these calls to be
harassing and emotionally disturbing, which only made his struggle with cancer that much
more difficult. {Id. at 7:27, 9:33-36).

Plaintiff cites to Hamlett v. Santander Consumer USA Inc., 931 F. Supp. 2d 451
(E.D.N.Y. 2013) for the proposition that not all telephone harassment IIED claims are
barred by Conboy^^ holding. (Dkt. 29 at 15-16). In Hamlett, the court distinguished
-30-

Conboy because the number of telephone calls experienced by the plaintiff—9,500 calls
within 11 months—far surpassed the 30 to 50 calls that occurred within a month's time in
Conboy. Hamlett, 931 F. Supp. 2d at 457. While these calls involved "threats including

false threats of arrest," the court emphasized that the plaintiff also suffered from "mental
disabilities" and that the defendant was aware of these disabilities. Id.

The instant facts are distinguishable from Hamlett since Defendant's representatives
did not use obscene or threatening language and the number of calls in Hamlett far
exceeded the number observed in this case. Plaintiff also cites to two cases from this

District, but these decisions are distinguishable for similar reasons. In Strom v. Nat7Enter.
Sys., Inc., No. 09-CV-0072A (F), 2011 WL 1233118 (W.D.N.Y. Mar. 30, 2011), the

plaintiff suffered from a "malignant brain tumor" and "advised [the d]efendant that its calls
to [him] were stressful and caused [him] to have seizures." Id. at *12. However, unlike

this case, the phone calls in Strom involved abusive rhetoric. See id. at *13 ("[T]he court

finds that a reasonable jury could conclude [the d]efendant's continued conduct, including
calls in which [the p]laintiff was threatened with legal seizure of her [Social Security
Disability Insurance] benefits and falsely advised [the p]laintiff of a required court
appearance, despite knowledge of[the p]laintiffs brain tumor condition, arises to 'extreme

or outrageous conduct.'"). Likewise, in Herman v. Nat'I Enter. Sys., Inc., No. 07-CV337S, 2009 WL 1874202(W.D.N.Y. June 29, 2009), the plaintiff experienced "multiple

insults regarding her fitness as a mother, insults directed at her son's military service, false
representations concerning her criminal liability, unauthorized withdrawals from the

-31 -

checking account, and other false representations." Id. at *2. Such verbal abuse simply
did not occur in this case.

Lundstedt v. Deutsche BankNat'l Tr. Co., No. 3:13-CV-001423(JAM), 2016 WL
3101999(D. Conn. June 2, 2016)is instructive. The plaintiff argued that he suffered from
negligent infliction of emotional distress after receiving "'hundreds if not thousands of
phone calls'" from his debt collectors. See id. at *1. The plaintiff alleged that he suffered
from various manifestations of mental and emotional distress as a result of these phone

calls.

Id.

Furthermore, the plaintiff also allegedly suffered fi-om "physical and

psychological injuries as a result of his service in the military, and that [the] defendants
nonetheless engaged in harassing debt collection practices that would foreseeably

exacerbate these injuries and cause plaintiff significant distress." Id. at *3. The plaintiff
claimed that defendant J.P. Morgan Chase Bank ("Chase") had "engaged in an

unreasonable, abusive practice of calling him repeatedly" and that this campaign of
harassment continued even after "he informed Chase of his existing infirmities and that the

calls had damaging psychological effects." Id. at *4. The district court stated that "[wjhile

it may be an unusual plaintiff who would suffer severe distress as a result of these phone
calls,[the] plaintiff here has alleged that Chase had enough information that it should have
known him to be vulnerable." Id. As a result, the court held that it "cannot conclude, as a

matter of law, that making hundreds or thousands of debt-collection phone calls could not
lead to an unreasonable risk of serious distress." Id.

The Court recognizes that the procedural posture of the instant matter is different
from Lundstedt, which addressed the defendants' motion to dismiss. However,New York
-32-

law recognizes that a "campaign of harassing telephone calls" may raise a question of fact
as to whether a defendant's conduct was sufficiently "outrageous" to support an IIED
claim, even without the use of abusive language. See Allam,2011 WL 721648, at *8; Gill
Farms Inc., 256 A.D.2d at 997; Flatley, 138 A.D.2d at 346. Accordingly, the Court finds

the rationale in Lundstedt to carry equal force in the context of the instant motion for
summary judgment.
Here, the Court cannot conclude as a matter of law that Defendant's actions fall

outside the scope of"extreme and outrageous conduct" where Defendant called Plaintiff
hundreds oftimes over five months, allegedly with the knowledge ofPlaintiffs stage four
cancer and the effect the telephone calls were having on Plaintiffs mental and emotional
condition. See Lundstedt, 2016 WL 3101999, at *3-4; Gill Farms Inc., 256 A.D.2d at 997;

Flatley, 138 A.D.2d at 346. Although Defendant's representatives did not use threatening

or vulgar language. Plaintiff was advised that he would lose his automobile if he did not
make timely payments. (Dkt. 29-9 at 8:30). In other words. Defendant's representatives
threatened to seize Plaintiffs means of travel for the necessary treatment of his terminal

cancer. {Id. at 5:17). Defendant was allegedly aware of Plaintiffs vulnerable condition

and ofthe emotional impact its calls were having upon Plaintiff, and yet it continued to call
Plaintiff numerous times a day. Lundstedt, 2016 WL 3101999, at *4;see Hamlett, 931 F.

Supp. 2d at 457; Strom, 2011 WL 1233118, at *12-13. The Court recognizes that the
telephone calls in the instant matter were not so numerous or as egregious as those observed
in Hamlett. However, the Court finds the Hamlett and Strom courts' discussion of the

plaintiffs' respective mental and physical well-being to be relevant in the disposition ofthe
-33 -

instant motion. Given the severity of Plaintiffs terminal condition and Defendant's
knowledge thereof, this consideration distinguishes the instant matter from the run-of-themill debt collector calls addressed in Conboy.
Therefore,the Court concludes that material issues offact as to whether Defendant's

conduct was sufficiently "extreme and outrageous" prevent granting judgment in favor of
Defendant on the IIED claim on this ground.
B.

Defendant's Motion is Denied Without Prejudice on the Ground that
Plaintiff Has Failed to Establish "Severe Emotional Distress"

Defendant focuses its IIED summary judgment arguments on the element of
"extreme and outrageous conduct." (See Dkt. 26-1 at 5-6 (arguing that Plaintiffs IIED
"claim fails as a matter of law because telephone calls from debt collectors do not rise to

the level of outrageousness necessary to support an [IIED] claim")). However, in a onesentence assertion. Defendant also claims that Plaintiff cannot satisfy the element of

"severe emotional distress" because "he admitted in his deposition that he never discussed
[Defendant] with his doctors nor sought psychiatric help as a result of[Defendant]'s phone
calls." (Id. at 7).

Under New York law, a plaintiff alleging a claim for IIED is "required to establish
that severe emotional distress was suffered, which must be supported by medical evidence,

not the mere recitation of speculative claims." Walentas v. Johnes, 257 A.D.2d 352, 353

(1st Dep't 1999)(citations omitted); see, e.g., James Biggs v. City ofNew York, No. 08
Civ. 8123(PGG), 2010 WL 4628360, at *9(S.D.N.Y. Nov. 16, 2010)("Courts routinely
grant summary judgment against plaintiffs where they have failed to present medical

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evidence demonstrating severe emotional injury."). Plaintiff defends against this argument
by stating that he has "yet to depose witnesses to [his own] emotional distress (his

children)," and that he "anticipates obtaining a medical expert to link [his] emotional
distress, and some of his physical symptoms to the harassing telephone calls he received."
(Dkt. 29 at 16).

"[T]here is no requirement that, before a motion for summary judgment may be
granted, all discovery must be complete." Segreto v. Kirschner,977 F. Supp. 553,556(D.
Conn. 1997). Nevertheless,"[wjhile Federal Rule of Civil Procedure 56 allows a party to

move for summary judgment before discovery is complete, such a motion is successful
'[ojnly in the rarest of cases' because '[t]he nonmoving party must have had the

opportunity to discover information that is essential to [its] opposition to the motion for
summary judgment.'" Great Wall De Venezuela C.A. v. Interaudi Bank, 117 F. Supp. 3d
474, 492-93 (S.D.N.Y. 2015)(quoting Hellstrom v. U.S. Dep't of Veterans Affairs, 201
F.3d 94,97(2d Cir. 2000)).

Here, discovery was not complete when Defendant moved for summary judgment,
and, in fact, it has been stayed pending the disposition of Defendant's motion. {See Dkt.
23 at 2; Dkt. 37). The Court also notes that while Plaintiff did not submit medical evidence
of severe emotional distress, he was being treated for various symptoms relating to his

stage four cancer during the period he received Defendant's telephone calls. {See Dkt. 299 at 6-7:23-27). Plaintiff also testified that the calls caused him distress and amplified his
symptoms. {See id. at 7:27, 9:33-36). While Plaintiffs own emotional distress would
normally be within Plaintiffs control and not necessarily something to be pursued in
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discovery, this case is arguably different because of Plaintiffs death. Plaintiffs counsel

suggests that be would be able to secure a medical expert who could "link Plaintiffs
emotional distress, and some of bis physical symptoms to the harassing telephone calls be

received." (Dkt. 29 at 16). Such evidence would be relevant to Plaintiffs opposition to
Defendant's motion for summary judgment as it pertains to bis IIED claim.
As a result, the Court concludes that Defendant's one-sentence argument that
Plaintifffailed to sufficiently support bis claim of"severe emotional distress" with medical
evidence has been prematurely raised, and thus. Defendant's motion for summary
Judgment is denied on this ground, without prejudice.
III.

Plaintiffs Motion to Substitute

A.

Legal Standard

As noted above,"[i]f a party dies and the claim is not extinguished, the court may
order substitution ofthe proper party." Fed. R. Civ. P. 25(a)(1). "A motion for substitution
may be made by any party or by the decedent's successor or representative," but the motion
must be made "within 90 days after service of a statement noting the death" or the action

will be dismissed. Id. In other words. Rule 25 provides for "substitution by another for a
deceased party to a civil action if(1)the claim of a deceased plaintiffsurvives that party's
death;(2) the individual seeking to be substituted is a 'proper party;' and (3) the party

requesting substitution moves 'within 90 days after service of a statement noting the
death.'" Worrell v. Co/vm,No. l:12-CV-3386(ENV),2013 WL 3364373,at *1(E.D.N.Y.

July 3, 2013) (citation omitted). "The language of Rule 25 is permissive, and '[t]he
decision whether to substitute parties lies within the discretion ofthe trialjudge and he may
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refuse to substitute parties in an action even if one of the parties so moves.'" Fishman v.
County ofNassau, No. lO-CV-3231 (MKB),2013 WL 1339466, at *15 (E.D.N.Y. Apr. 1,
2013)(quoting Aato/e v. Country Ford Ltd., 287 F.R.D. 135, 137(E.D.N.Y. 2012)).
B.

Plaintiffs IIED and TCPA Claims Do Not Abate

Under New York law,"[n]o cause of action for injury to person or property is lost
because of the death of the person in whose favor the cause of action existed." N.Y. Est.
Powers & Trusts Law § ll-3.2(b). As such. Plaintiffs IIED claim does not extinguish

upon Plaintiffs death because this cause of action alleges an "injury to person." See

Spagnuolo v. Suffolk County, No. 12-CV-4327(JS)(AKT), 2017 WL 4326510, at *6
(E.D.N.Y. Sept. 28,2017)(finding that various state law claims, including "intentional and
negligent infliction of emotional distress," did not abate upon the plaintiffs death because

"they set forth claims of injury to person or property" (quotation marks and citation

omitted)), appeal dismissed. No. 17-3563, 2018 WL 2072494 (2d Cir. Mar. 9, 2018);
Regalado v. Kohl's Dep't Stores, Inc., No. 13-CV-5624(JS)(AKT), 2015 WL 8481881, at
*1 (E.D.N.Y. Dec. 8, 2015)(holding that various state law claims, including "intentional
infliction ofemotional distress[,]... set forth claims of'injury to person or property,'" and
thus, do not abate). Furthermore, for the reasons discussed above. Plaintiffs TCPA claim
does not abate because the TCPA claim is primarily "remedial" in nature. See Colucci,

603 F. Supp. 2d at 680("Unless a statute directly addresses the issue, courts are generally
guided by principles of federal common law, which prescribe that claims characterized as

'penal' abate upon a party's death, while claims characterized as 'remedial' survive.");
Hardy v. Kaszycki & Sons Contractors, Inc., 842 F. Supp. 713, 718 (S.D.N.Y. 1993)
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("Pursuant to federal common law, actions that are penal in nature do not survive the death
of a party. Conversely, actions that are remedial in nature generally do survive."(citation
omitted)).

C.

Majewski is a "Proper Party" for Substitution

"It is well established that a proper party under Rule 25 is either a representative of
the decedent's estate or the successor of the deceased." Shapiro v. United States, No. 07

Civ. 161 (PKL), 2008 WL 4302614, at *1 (S.D.N.Y. Sept. 17, 2008) (citing cases).

"Whether a person is a proper 'successor or representative' of the decedent is determined
by New York law." Natale,287 F.R.D. at 137(quotation marks and citation omitted). "To

qualify as the representative of the decedent's estate under New York law, the individual
seeking substitution must have received letters to administer the estate of the decedent."

Shapiro, 2008 WL 4302614, at *1. Under New York law, a "personal representative is a
person who has received letters to administer the estate of the decedent." See N.Y. Est.
Powers & Trusts Law § 1-2.13.

Here, Majewski has filed the letters ofadministration appointing her as the personal

representative ofPlaintiffs Estate. (Dkt. 30-3). Accordingly, Majewski is a "proper party"
for substitution. See Natale, 287 F.R.D. at 138 (finding that the "Petition for Probate and
Letters of Testamentary" sufficiently established the substitute plaintiff as a proper party
for substitution).
D.

The Motion to Substitute is Timely

Finally, Majewski's motion is timely. The Suggestion ofDeath was filed on August
23, 2016. (Dkt. 28). Majewski's motion to substitute was filed on August 30, 2016,just
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one week later. (Dkt. 30). Accordingly,the motion to substitute was made "within 90 days
after service of a statement noting the death" of Plaintiff in satisfaction of Rule 25(a)(l)'s
timeliness requirement. Fed. R. Civ. P. 25(a)(1).

Therefore, Majewski's motion to substitute is granted, and Majewski will be
substituted, in her capacity as the Administratrix of the Estate of William J. Sharp, as the
party plaintiff in the above-captioned action.
IV.

Defendant's Argument in its Supplemental Memorandum is Prematurely
Asserted, and PlaintifPs Supplemental Response is Not Properly Before this
Court

On July 24, 2017, Defendant filed a motion for leave to submit supplemental
briefing addressing the Second Circuit's intervening decision m Reyes v. Lincoln Auto. Fin.
Servs., 861 F.3d 51 (2d Cir. 2017). (Dkt. 40). In Reyes, the Second Circuit held that "the

TCPA does not permit a party who agrees to be contacted as part of a bargained-for

exchange to unilaterally revoke that consent." Reyes, 861 F.3d at 56; of. ACA Int'l v.
F.C.C.,No. 15-1211, 2018 WL 1352922, at *18(D.C. Cir. Mar. 16, 2018)(upholding that

part of a Federal Communications Commission ruling "under which a party may revoke
her consent through any reasonable means clearly expressing a desire to receive no further

messages from the caller," but noting that "[t]he ruling precludes unilateral imposition of
revocation rules by callers; it does not address revocation rules mutually adopted by

contracting parties"). Defendant argues that Plaintiff consented to receive the subject
communications as part of the credit applications he signed when he incurred the
automobile loan. (Dkt. 40-2 at 3). Defendant argues that these credit applications are

considered binding contracts under New York law,and thus.Plaintiffcould not unilaterally
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revoke that consent by simply telling Defendant that he did not wish to receive any more
calls. {Id. at 2-4).
In his July 31,2017,opposition memorandum.Plaintiffargues that this Court should

not consider the Reyes decision because it may be reversed en banc by the Second Circuit,

or the Supreme Court may overturn it. (Dkt.42 at 2-3). However,the petition for rehearing
en banc was denied on October 20, 2017,Reyes v. Lincoln Auto. Fin. Servs., No. 16-2104,
Docket 126, and review was not sought before the Supreme Court. Thus, any suggestion
that judicial economy would be better served by staying the case is moot.

Plaintiff also argues that the Court should not apply Reyes until discovery has been

completed. As noted above, discovery did not reach a conclusion before Defendant moved
for summary judgment. {See Dkt. 23 at 2; Dkt. 37). In contrast, it appears discovery was

complete when the defendant in Reyes moved for summary judgment. See Reyes,861 F.3d
at 54.

Furthermore, Defendant makes its argument regarding Reyes for the first time in a

supplemental brief. (Dkt. 40-2). Of course. Defendant could not have relied upon the

Reyes decision before it was decided.^ However, Plaintiff was similarly unaware that
Defendant could assert this argument—even while discovery had been taking place. In
other words, before discovery was stayed. Plaintiff did not face the prospect ofconfronting

^

The Court notes that the district court came to the same decision before Defendant

filed its motion for summary judgment. See Reyes v. Lincoln Auto. Fin. Servs., No. CV
15-0560, 2016 WL 3453651, at *2-3 (E.D.N.Y. June 20, 2016). Thus, while Defendant
could not have relied on the Second Circuit's holding before filing its summary judgment
motion, it certainly could have raised the argument in its initial motion papers.
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binding Second Circuit precedent on the consent issue now raised by Defendant. Indeed,
at least two district court have noted that the Second Circuit's decision in Reyes "reflects a
potential sea-change in the area of TCPA-litigation." McBride v. Ally Fin., Inc., No. CV
15-867, 2017 WL 3873615, at *2(W.D. Pa. Sept. 5, 2017);see Ammons v. Ally Fin., Inc.,
No. 3:17-CV-00505,2018 WL 3134619, at *14(M.D. Tenn. June 27,2018)("[T]he Court

finds that the adoption of Reyes by other Circuits would represent a sea change in TCPA
litigation in this country.").

Despite Plaintiffs arguments to the contrary, the Court is not convinced that the
plaintiff in Reyes was not subject to "the sheer volume of calls that [Plaintiff] in this case

is believed to have received." (Dkt. 42 at 4); see Reyes, 861 F.3d at 54 (noting that the
plaintiff had received 141 calls from a customer representative, and 389 calls from pre
recorded messaging systems). However,the Court finds that it would be improper to grant

summary judgment at this stage of this litigation without permitting Plaintiff the
opportunity to discover information necessary to oppose this newly formed argument. See,
e.g.. Great Wall De Venezuela C.A., 117 F. Supp. 3d at 492-93. Therefore, Defendant's

supplemental argument for the application ofReyes is denied without prejudice.

Lastly, Plaintiff raises new arguments in his motion for leave to file a supplemental
response that could have been raised in his initial opposition memorandum. It is wellestablished in this Circuit that new arguments raised in successive briefing papers will not
be considered where those arguments could have been raised in a previous submission. See
Patterson v. Balsamico,440 F.3d 104, 114 n.5 (2d Cir. 2006)("This [cjourt generally will
not consider arguments raised for the first time in a reply brief."); The Res. Mine, Inc. v.
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Gravity Microsystem LLC, No. 09-CV-0573 (DRH)(SIL), 2015 WL 8665444, at *3
(E.D.N.Y. Dec. 11, 2015)("The [c]ourt will not consider any new arguments defendants
raised in their supplemental brief... because those arguments could have and should have

been made at the time of the filing of the original motion papers."); United States v.
Maciejewski, 70 F. Supp. 2d 129, 137 (N.D.N.Y. 1999)("Even if the [c]ourt considered

these submissions as part of the supplemental papers or as a Reply Brief,'new arguments
may not be made in a reply brief.'"(quoting The Ernst Haas Studio, Inc. v. Palm Press,

Inc., 164 F.3d 110, 112(2d Cir. 1999))), aff'd sub nom. United States v. Best, 219 F.3d 192
(2d Cir. 2000);see also Freidus v. ING Groep, N. V., 543 F. App'x 92,93 n.l (2d Cir. 2013)

("In supplemental briefing,[the plaintiff] raises [an] entirely new argument.... We do not
entertain this argument because [the plaintiff] could have raised it in the district court, or
certainly in his initial brief on appeal and failed to do so.").
The Court agrees with Plaintiffs initial argument that the dismissal of the TCPA

claims based upon the holding in Reyes would be premature without additional discovery.'^

The Court notes that the court in Few v. Receivables Performance Mgmt.,No. 1:17CV-2038-KOB, 2018 WL 3772863(N.D. Ala. Aug. 9, 2018)found that, while discovery

had not yet concluded, there was "little merit in forcing [the defendant] to bear the costs of
discovery given that [the plaintiff] does not dispute the existence of the contract that
precludes her claims under the TCPA." Id. at *3. However, as noted above, the Second
Circuit has instructed that "[o]nly in the rarest ofcases may summary judgment be granted
against a plaintiff who has not been afforded the opportunity to conduct discovery."
Hellstrom, 201 F.3d at 97. Given that Plaintiff disputes the viability of any contractuallyderived consent in this case, and since Defendant raised its Reyes argument for the first
time in supplemental briefing before the close ofdiscovery,the Court declines Defendant's
invitation to reach the merits ofthis contention at this time. Defendant's reliance on Harris

V. Navient Sols., LLC, No. 3:15-CV-564 (RNC), 2018 WL 3748155 (D. Conn. Aug. 7,
2018) does not warrant a different result. See id. CM/ECF Docket No. 39 (ordering that
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Plaintiffs assertion that Reyes does not apply to the facts of this case due to the nature of
the credit applications and the retail installment contract raises new arguments that touch
upon the merits ofDefendant's Reyes contention. {See Dkt.47-1; Dkt. 49;Dkt. 50). These
new contentions could have and should have been raised in Plaintiffs initial memorandum

in opposition to Defendant's supplemental memorandum. Accordingly, the Court denies
Plaintiffs motion to file supplemental briefing, and Plaintiffs motion to seal is also denied

as moot. Of course. Plaintiff may raise these arguments in opposition to any subsequent
motion filed by Defendant that seeks to apply Reyes to the instant facts.
CONCLUSION

For the foregoing reasons. Defendant's motion for summary judgment(Dkt. 26) is
denied. Plaintiffs motion to substitute (Dkt. 30) is granted. Plaintiffs motion for leave to

file a supplemental response (Dkt. 47) is denied. Plaintiffs motion to seal (Dkt. 48) is
denied. Plaintiffs motion for leave to cite additional authority (Dkt. 51) is granted, and

Defendant's motion for leave to file supplemental authority(Dkt. 53)is granted. The Clerk
of Court is directed to substitute Kathleen J. Majewski, in her capacity as Administratrix
ofthe Estate of William J. Sharp, as the party plaintiff in the above-captioned action.

fact discovery would be completed by April 19,2016),Docket No.56(motion for summary
judgment filed on September 23, 2016).
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so ORDERED.

ETH

tates District Judge
Dated:

September 10, 2018
Rochester, New York

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