Maraan v. Dish Network LLC
Filing
46
OPINION AND ORDER granting in part and denying in part 34 Defendant's Motion for Summary Judgment. That portion of Defendant's Motion for Summary Judgment arguing that Plaintiff lacks both constitutional and statutory standing to bring t his action against it for violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(A)(iii), as amended, is DENIED. That portion that argues that DISH Network is entitled to judgment as a matter of law as to all but five incomi ng calls to the cellular telephone number (513) 448-7023 numberspecifically calls made on 07/01/2012, 08/07/2012, 08/19/2012, 12/05/2012 and 05/07/2013is GRANTED. Finally, that portion that argues that DISH Network did not make the aforementioned fi ve calls "willfully and knowingly" is GRANTED as to the calls made on 07/01/2012 and 08/07/2012 but DENIED as to the remaining three. This matter is set for a status conference on 12/2/2014 at 2:00 p.m., during which both Plaintiff and a r epresentative from Defendant are instructed to either be present or immediately available by telephone. Defendant's representative must be invested with authority to settle this matter on his or her own without additional consultation with any other company representative. Signed by Judge S Arthur Spiegel on 11/18/2014. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BENJAMIN MARAAN,
:
:
:
:
:
:
:
:
:
Plaintiff,
v.
DISH NETWORK, L.L.C.,
Defendant.
No. 1:13-cv-00436
OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for
Summary Judgment (doc. 34), to which Plaintiff has responded
(doc. 38) and Defendant has replied (doc. 43).
For the reasons
that follow, Defendant’s motion is GRANTED IN PART AND DENIED IN
PART.
I.
Background
Plaintiff Benjamin Maraan is a retired physician (doc. 38,
Exh. 8, Maraan dep. at 7:4-15 (PAGEID #: 309)).
By virtue of
his previous affiliation with the Butler County Medical Society
(“BCMS”), Dr. Maraan has, for many years, subscribed to cellular
telephone service provided by AT&T (Maraan dep. at 18:21-19:15,
33:14-34:3 (PAGEID ##: 320-21, 335-36); doc. 34, Exh. E (PAGEID
#:
227)).
Included
in
his
five-member
“family
plan”
is
a
cellular telephone with the number 513-448-7023 that is used—
1
exclusively—by his minor grandson, B.M.M. (see Maraan dep. at
29:9-30:5 (PAGEID ##: 331-32); doc. 38, Exh. 9, Deposition of
Benjamin M. Maraan II at 11:5-24 (PAGEID #: 349)).
The bills
for the Maraan family plan list the BCMS as the “subscriber”,
but they are mailed to Dr. Maraan’s home address, marked “ATTN:
BENJAMIN MARAAN MD” and paid by his wife out of their personal
checking
account.
expense by the BCMS.
The
Maraans
are
not
reimbursed
for
this
Doc. 38, Exhs. 1, 2, 3; Maraan dep. at
20:8-19, 22:9-13, 23:7 to 24:21, 33:14-22 (PAGEID ##: 322, 324,
325-26, 335).
Defendant DISH Network provides direct broadcast satellite
television
customers.1
products
and
services
to
residential
and
business
To assist its customers to remain current with their
financial obligations and to avoid an interruption of service,
DISH has put in place a late payment reminder system.
If a
customer is late in paying his bill, he may receive a telephone
call, at the number he provides to DISH, to advise him of his
arrearage.
Doc. 34, Exh. B, Affidavit of Joey L. Montano ¶¶ 1-4
(PAGEID ##: 211-12).
On March 13, 2012, a new customer, who is
not a party to this litigation, gave DISH express consent to
call him at the telephone number 513-448-7022 for any purpose,
including for account-related purposes (doc. 34, Exh. C, DISH
Plaintiff is not, and has never been, a DISH customer (see
Maraan dep. at 6:13-19 (PAGEID #: 308)).
1
2
Network Service L.L.C. Service Agreement (PAGEID ##: 217, 219)).
This new customer quickly got behind in his payments and, in
accord
with
the
late
payment
reminder
indeterminate number of calls from DISH.
system,
received
an
Then, on May 4, 2012,
less than two months later, the customer called DISH to change
his number in DISH’s records to 513-448-7023 (see doc. 34, Exh.
D (PAGEID ##: 221, 225)), presumably to avoid receipt of any
additional dunning calls.
Of course, as stated earlier, the
“7023” number was then—and remains now—assigned to the cellular
telephone used by Plaintiff’s grandson.
B.M.M. testified that
he began receiving calls from DISH in January or February of
2012, which obviously predate this May 4 notification, with the
last call coming on May 7, 2013 (see doc. 38, Exh. 1 (Tuesday,
05/07 05:10p INCOMI CL 866-668-8047) & Exh. 10, Deposition of
BMM (minor) at 11:7-9, 12:10-25 (PAGEID ##: 381, 382)).
Outbound account-related calls are made by DISH from what
is referred to as the “Cisco Dialer” and such calls bear the
caller identification number 866-668-8047 (see Montano aff. ¶¶
6, 8).
Defendant maintains, without contest by Plaintiff, that
this device does not have the capacity “to store or produce
telephone numbers to be called, using a random or sequential
number generator[,]” (see id. ¶ 7), and thus does not meet the
statutory definition of an “automatic telephone dialing system”
as defined in the Telephone Consumer Protection Act (“TCPA”), 47
3
U.S.C. § 227(a)(1)(A).
DISH
also
owns
the
In addition to owning the “8047” number,
number
888-337-3474,
receives only inbound telephone calls.
which
it
contends
The Cisco Dialer does
not now use, and has never previously used, the “3474” number to
make outbound calls according to DISH.
See Montano aff. ¶ 9.2
A
“Call
Cycle
–
Detail”
sheet
for
12/22/12”
regarding
the
otherwise,
however.
See
the
“Bill
“7023”
doc.
38,
number
Exh.
Date:
seems
5
11/23/12
to
suggest
(Wednesday,
12/05
06:22p INCOMI CL 888-337-3474) (PAGEID #: 296).
II.
Legal Standard
Although a grant of summary judgment is not a substitute
for trial, it is appropriate "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."
56(a).
Fed. R. Civ. P.
The process of evaluating a motion for summary judgment
Plaintiff appears to contend that a third number, 877-371-3188,
is at issue here as well. DISH disclaims ownership of this
number, and states that it does not use it for any purpose. See
Montano aff. ¶ 10. Plaintiff does not directly challenge Mr.
Montano’s sworn statement. His grandson testified that he
received calls from DISH from “more than one” number other than
the “8047” number. BMM dep. at 15:14-23 (PAGEID #: 385). The
only identifying information he could provide, though, was that
“[t]hey just were usually long, usually started with 8[]” (id.
at 16:10-12 (PAGEID #: 386)). “Call Detail” sheets for the
“Bill Cycle Date: 12/23/12 – 01/22/13” and “Bill Cycle Date:
01/23/13 – 02/22/13” regarding the “7023” number do confirm
receipt of four incoming calls from the “3188” number, but there
is no evidence before the Court that links them specifically to
DISH. See doc. 43, Exh. 4 at 11 (Wednesday, 01/02 11:32a
(PAGEID #: 441)), 14 (Sunday, 02/03 12:28p, Tuesday, 02/05
07:47p & 08:14p (PAGEID #: 444)).
2
4
and the respective burdens it imposes upon the movant and the
non-movant are well-settled.
First, "a party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact[.]"
Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986); see LaPointe v. United
Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993).
This
burden may be satisfied, however, by the movant “pointing out to
the court that the [non-moving party], having had sufficient
opportunity
for
discovery,
has
no
evidence
essential element of his or her case.”
to
support
an
Barnhart v. Pickrel,
Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir.
1993).
Faced with such a motion, the opposing party must submit
evidence in support of any material element of the claim or
defense at issue in the motion on which it would bear the burden
of proof at trial.
Celotex, 477 U.S. at 331-32.
As “the
requirement [of the Rule] is that there be no genuine issue of
material fact,” the Supreme Court has made clear that “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.”
242,
248
(1986)
Anderson v. Liberty Lobby, Inc., 477 U.S.
(emphasis
in
original).
5
Ancillary
factual
disputes, those “that are irrelevant or unnecessary[,] will not
be
counted.”
Id.
Furthermore,
"[t]he
mere
existence
of
a
scintilla of evidence in support of the [non-movant’s] position
will be insufficient; there must be evidence on which the jury
could
reasonably
find
for
the
[non-movant]."
Id.
at
252.
Instead, the opposing party must present "significant probative
evidence"
demonstrating
that
"there
is
[more
than]
some
metaphysical doubt as to the material facts” to survive summary
judgment and proceed to trial on the merits.
Moore v. Philip
Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993) (applying
Anderson, 477 U.S. at 249-50; Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
At this summary judgment stage, it is not our role “to
weigh the evidence and determine the truth of the matter but
[rather]
to
determine
trial.”
Anderson,
evidence
of
the
whether
477
there
is
U.S.
at
249.
non-movant
is
to
a
genuine
In
be
so
issue
doing,
believed,
justifiable inferences are to be drawn in [her] favor.”
for
“[t]he
and
all
Id. at
255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59
(1970) (citing United States v. Diebold, Inc., 369 U.S. 654, 655
(1962))).
Adherence to this standard, however, does not permit
us to assess the credibility of witnesses.
See Adams v. Metiva,
31 F.3d 375, 378 (6th Cir. 1994) (citing Anderson, 477 U.S. at
255)).
6
III. Discussion
Plaintiff
brings
this
action
claiming
violations
of
the
following section of the TCPA, which reads in relevant part:
It shall be unlawful for any person within the United
States or any person outside the United States if the
recipient is within the United States . . . to make any
call (other than a call for emergency purposes or made with
the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or
prerecorded voice . . . to any telephone number assigned
to a . . . cellular telephone service, . . . or any service
for which the called party is charged for the call[.]
47 U.S.C. §227(b)(1)(A)(iii) (emphasis added).
Defendant argues
that it is entitled to summary judgment as to all of the alleged
telephone calls because Plaintiff lacks both Article III and
statutory standing.
Alternatively, should the Court find that
Plaintiff has standing to proceed, Defendant argues that it at
least is entitled to summary judgment as to any calls made from
numbers other than the “8047” number, with particular reference
to the “3474” and “3188” numbers.
As a second alternative,
Defendant argues in its reply that it is entitled to summary
judgment as to all but four calls from the “8047” number and all
but one call alleged to have been made from the “3474” number.
A. Standing
Defendant argues that Dr. Maraan lacks both Article III
standing
and
standing
under
premises
are
essentially
the
TCPA,
identical.
but
DISH
its
supporting
maintains
that,
because Plaintiff never personally received any of the dunning
7
calls or was not present when his minor grandson did, he has not
suffered the requisite “injury in fact” required by Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), construed in
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S.
167, 180-81 (2000).
observe
that
statute
designed
to
eliminate
calls.
Within
it,
Congress
protected
interests,
injury
the
On the issue of constitutional standing, we
whenever
TCPA,
as
and
there
is
amended,
a
a
is
a
intrusive
has
consumer-protection
nuisance
defined
plaintiff
violation
suffers
of
certain
an
these
telephone
legally
Article
rights.
III
An
allegation by Dr. Maraan, as the subscriber to the cellular
telephone number called, that Defendant’s conduct has violated
Section 227(b)(1)(A)(iii) of the TCPA is enough to confer upon
him standing under Article III, and concomitantly jurisdiction
upon this Court to hear the controversy.
See Palm Beach Golf
Center-Boca, Inc. v. Sarris, -- F.3d --, No. 13-14013, 2014 WL
5471916, at *3-5 (11th Cir. Oct. 30, 2014)3; Manno v. Healthcare
Revenue Recovery Group, LLC, 289 F.R.D. 674, 682 (S.D. Fla.
In support of its position, Defendant had relied on the lower
court’s determination that a plaintiff which “d[id] not see,
know about, or otherwise become aware of an unsolicited fax
advertisement” lacked Article III standing to bring a TCPA
action. See Palm Beach Golf Center-Boca, Inc. v. Sarris, 981 F.
Supp. 2d 1239, 1256 (S.D. Fla. 2013).
The Eleventh Circuit’s
decision reversing the ruling below obviously was not issued
until after the briefing of this motion was complete. While the
Court’s own research would have uncovered the appellate opinion,
it nevertheless compliments defense counsel for bringing it to
our attention (see doc. 45).
3
8
2013); Smith v. Microsoft Corp., 2012 WL 2975712 (S.D. Cal. July
20, 2012).
Plaintiff’s status as subscriber4 of the “7023” number also
is sufficient for purposes of statutory standing.
Earlier in
this litigation, Plaintiff moved to amend his complaint.
Among
other things, he sought the Court’s permission to add his son
(Benjamin M. Maraan II) individually and as next friend of his
minor grandson (B.M.M.).
Defendant opposed this amendment on
the following basis:
Here, Plaintiff explicitly alleges that DISH called ‘one of
Plaintiff’s mobile (“cellular”) phone numbers.’ Plaintiff
further alleges that Plaintiff pays for the cellular
telephone line. Taking Plaintiff’s allegations as true,
which DISH must for purposes of the Motion, Plaintiff is
the subscriber to the telephone line that DISH is alleged
to have called. As such, Plaintiff—and only Plaintiff—has
standing to sue under the TCPA for the alleged telephone
calls.
Defendant’s contention that the Butler County Medical Society is
instead the “subscriber” is a red herring. Plaintiff testified
that he chose AT&T as his provider because of the “good deal”
that the BCMS negotiated on behalf of its contingent (see Maraan
dep. at 19:6-9 (PAGE ID#: 321)). The “Butler Co Medical So”
obviously is associated with the promotional rate that AT&T
charges its members, but, as recited earlier, the “credit
address” to which the monthly bills are sent is Dr. Maraan’s
home, marked to his attention and paid by his wife with funds he
deposits in their joint account:
4
Q.
A.
Q.
You supply the money - That’s right.
- - and she pays the bills?
Mr. Zalud: All right. . . .
Maraan dep. at 23:15-18 (PAGEID #: 325).
9
To permit Plaintiff to triple-dip under the TCPA by
adding his son (individually and as next friend to
Plaintiff’s grandson)—who are not subscribers and who are
not charged for any call made to the line at issue—as
plaintiffs is legally baseless and would be futile.
Doc.
27
at
13-14
(citations
to
other
pleadings
omitted)
(emphasis added).
The Court denied Plaintiff’s motion, except
as
withdrawal
it
related
to
several reasons.
of
the
class
allegations,
for
It clearly was untimely filed, and we found
that it would cause undue delay and would unfairly prejudice
Defendant.
Doc. 32 at 3-6.
We were persuaded by Defendant’s
argument that only Plaintiff as the “subscriber” had standing to
bring
suit,
amended
particularly
complaint
given
depicted
Dr.
that
review
Maraan’s
of
son
and
the
proposed
grandson
as
third-party beneficiaries of his cellular telephone subscription
with neither being the intended recipient of the alleged illegal
calls (id. at 10).
On summary judgment, however, Defendant has reversed course
on this issue, and now maintains that Plaintiff, because he is
merely the subscriber, lacks standing as well.
Instead, only
the intended recipient—which Defendant conflates with the phrase
“called party” as it appears in the statute—can sue.
that
interpretation,
Defendant
proffers
yet
a
Failing
different
restriction, one that limits standing to the actual recipient of
the calls so long as he answers them on a cell phone that he
regularly uses and carries.
Either scenario quite obviously
10
excludes Plaintiff.
DISH’s
delinquent
The intended recipient of the calls was
customer,
who
is
not
a
party
to
this
litigation and whose identity remains concealed under protective
order,
the
Discovery
irony
of
revealed
which
the
is
actual
not
lost
recipient
upon
to
be
this
Court.
B.M.M.,
who
regularly uses and carries “his” cell phone courtesy of the
subscription
paid
for
by
his
grandfather.5
DISH
seeks
the
proverbial “Get Out of Jail Free” card here, apparently hoping
this Court will decide that, in this particular circumstance, no
one has standing to sue under the TCPA.
We find Defendant’s arguments unavailing, as did Judge Groh
in
Moore
v.
DISH
Network,
L.L.C.,
No.
3:13-CV-36,
2014
WL
5305960 (N.D. W.Va. Oct. 15, 2014).
She opined, as do we, that
“status
cell
as
standing.
the
subscriber
Id. at *10.
of
the
phone
alone”
confers
See Gutierrez v. Barclay’s Group, No.
10cv1012 DMS (BGS), 2011 WL 579238, at *5 (S.D. Cal. Feb. 9,
2011)
(“[T]he
TCPA
is
intended
to
protect
the
telephone
subscriber, and thus it is the subscriber who has standing to
sue for violations . . . .”).
allows
a
statute.
“person
or
entity”
The plain language of the TCPA
to
bring
See 47 U.S.C. § 227(b)(3).
an
action
under
Clearly a subscriber falls
Plaintiff himself did not receive any calls from DISH on the
cell phone that he regularly uses and carries, nor was he
present when his grandson received such calls on the “7023”
number. Maraan dep. at 32:17-22, 33:9-13 (PAGE ID ##: 334,
335).
5
11
the
within this ambit, and, just as clearly, there is no restriction
to,
or
even
(intended
or
mention
of,
otherwise)
a
in
“called
this
party”
or
subsection
of
a
“recipient”
the
statute.
Therefore, “because it has no support in the statute’s plain
terms[,]” we join the Moore court, and several others, that
reject the notion that only the “called party”—again defined by
DISH as the intended recipient of the call—has standing to sue.
See Moore, 2014 WL 5305960, at *7-8 (citing, inter alia, Manno,
supra, 289 F.R.D. at 682; Page v. Regions Bank, 917 F. Supp. 2d
1214, 1217 (N.D. Ala. 2012); Harris v World Fin. Network Nat’l
Bank, 867 F. Supp. 2d 888, 894 (E.D. Mich. 2012); Swope v.
Credit Mgmt., L.P., No. 4:12CV832, 2013 WL 607830, at *3 (E.D.
Mo. Feb. 19, 2013)).
Defendant cites Fini v. DISH Network, L.L.C., 955 F. Supp.
2d 1288 (M.D. Fla. 2013) for the alternative proposition that
only the actual recipient of the call—on a cell phone that he
regularly uses and carries—has standing to sue.
Fini so narrowly.
We do not read
There, plaintiff’s husband was listed as the
“service subscriber” for her cell phone and thus technically
responsible for their “joint” bill.
well,
the
same
defendant,
DISH,
Id. at 1290.
indeed,
the
same
There as
counsel,
Messrs. Zalud and Kern, argued that the “called party” should be
limited to the “subscriber” of the cell phone service, meaning
(as is the very case here) the one who contracted to pay the
12
bills,
thus
excluding
Mrs.
Fini.
Not
wanting
to
limit
so
absolutely those who could sue, in light of the “plethora of
contractual arrangements available to wireless customers,” Judge
Conway opined:
“Without expressing an opinion as to whether it
is actually necessary to be a ‘subscriber’ to have standing
under the TCPA, this Court finds that Plaintiff has standing
because she is the regular user and carrier of the phone at
issue in this case.”
Id. at 1296.
We agree with the Moore
court that Fini “stands only for the proposition that a regular
user and carrier of a cell phone who is not the subscriber has
standing
under
(emphasis
the
TCPA.”
added).
Here
Moore,
2014
Plaintiff
is
WL
5305960,
at
indisputably
*10
the
“subscriber” and, as in Moore, we need not opine as to “which,
if any, other types of relationships to a cell phone give rise
to standing under the TCPA.”
See id. at *7 (emphasis added).
That Dr. Maraan did not answer the calls does not rob him of
standing in this Court’s view.
He subscribed to a cellular
telephone service on behalf of himself and other family members,
a
fairly
typical
and
provider-encouraged
scenario,
and
that
status alone permits him to bring suit under the TCPA.
See
Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265 (11th Cir. 2014)
(subscriber brings suit individually and as next friend to her
minor son, the exclusive user of the cell phone that received
the calls).
13
B. Particular Calls at Issue
As the Court understands the “Call Detail” sheets attached
to the memoranda we have considered, in question are a total of
nine documented6 calls to the “7023” number:
one
from
“3474”
and
four
from
“3188”.
four from “8047”,
While
not
conceding
liability as to any of these calls, DISH asks this Court to
determine as a matter of law that it cannot be held liable for
any calls other than those from the “8047” number.
In support,
it
to
argues
that
its
“3047”
number
is
used
only
receive
Without specific elaboration, Plaintiff takes the position
that more than nine calls were made to the “7023” number. No
paper record of them exists, though, purportedly because his
grandson “recognize[d] the incoming call to his cell phone as
coming from DISH Network and he would not answer the call.”
Doc. 38 at 9 & Exh. 9, Deposition of Benjamin M. Maraan, II at
15:11-20, 21:25 to 22:14, 26:25 to 27:12 (PAGEID ##: 354, 36061, 365-66); BMM dep. at 13:3-11 (PAGEID #: 383). At this
summary judgment stage, it is our obligation to determine
“whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Moore, supra, 8
F.3d at 340 (quoting Anderson supra, 477 U.S. at 251-52). So
measured, we conclude that such vague testimony is insufficient
to create a genuine issue of material fact as to the number of
calls. See id. (“‘[S]ummary judgment will not lie if the
dispute about a material fact is “genuine,” that is, if the
evidence is such that a reasonable jury could return a verdict
for the non-moving party.’ Anderson [v. Liberty Lobby, Inc.,],
477 U.S. at 248 []. Thus, ‘[t]he inquiry performed is the
threshold inquiry of determining whether there is the need for
trial—whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party.’ Anderson, 477 U.S. at 250 []; Stein v. Nat’l City Bank,
942 F.2d 1062, 1064 (1991).”)
6
14
incoming calls and that it does not own, and its Cisco dialer
has never used, the “3188” number.
Upon
consideration,
we
find
Defendant’s
taken, but only as to the “3188” number.
position
well-
While, according to
DISH, the “3474” number is used only for incoming calls, a “Call
Detail” sheet for the “Bill Cycle Date:
11/23/12 – 12/22/12”
quite clearly indicates that an outbound call was made from that
number to B.M.M.’s cell phone on December 5.
number
and,
illegal
call
thus,
made
has
potential
therefrom.
liability
The
presents a different circumstance.
“3188”
DISH owns that
for
any
number,
alleged
however,
Plaintiff has not offered
even a “scintilla” of evidence to contradict the testimony of
DISH’s Business Operations Manager.
U.S. at 252.
See Anderson, supra, 477
B.M.M. averred that he received calls from DISH
from more than one number besides the “8047” number, “usually
long, [and] usually start[ing] with 8[.]”
The Court notes that
the only long number beginning with an “8” appearing in the
“Call Detail” records other than the “3474” number is the “3188”
number.
B.M.M.’s testimony, however, clearly falls short of the
“significant
judgment.
probative
evidence”
necessary
to
avoid
summary
See Moore, supra, 8 F.3d at 340 (citing Anderson, 477
U.S. at 249-50).
For these reasons, then, Defendant is entitled
to summary judgment as to all but the following five incoming
calls to the “7023” number:
15
Sunday,
Tuesday,
Sunday,
Wednesday,
Tuesday,
07/01/12,
08/07/12,
08/19/12,
12/05/12,
05/07/13,
Defendant
also
10:40a
10:52a
11:59a
06:22p
05:10p
seeks
(“8047”)
(“8047”)
(“8047”)
(“3474”)
(“8047”)
summary
judgment
on
the
issue
of
whether these calls were “willfully or knowingly” made by DISH.
Recovery under the TCPA is limited to “actual monetary loss . .
. or . . . $500 in damages for each such violation, whichever is
greater[.]”
47 U.S.C. § 227(b)(3)(B).
The Court has discretion
to increase the award to “not more than 3 times the amount
available under subparagraph (B)” if it finds that a defendant
“willfully
or
227(b)(3).
knowingly”
In
the
violated
typical
TCPA
this
subsection.
case,
Id.
tripling
amount
the
§
equates to an award of $1,500 per call.
Defendant argues that it legitimately was trying to reach
its customer to pay his past due bill, calling the number that
said
customer
mistake
that
provided.
It
maintains
Plaintiff’s
grandson
that
received
it
the
was
simply
calls,
accordingly, an award of treble damages is not warranted.
a
and,
Based
on the evidence before us, it does appear to the Court that—
initially—DISH was, for lack of a better word, “duped” by its
delinquent client, with the aggravation he avoided being borne
instead by Plaintiff’s grandson.
Nevertheless, Plaintiff’s son
testified that, on August 7, 2012, he spoke with a DISH Network
representative, who, having been told of the mix-up, assured him
16
that
his
son’s
cell
phone
internal DO-NOT-CALL list.
number
would
be
placed
on
their
See doc. 38, Exh. 7, Affidavit of
Benjamin M. Maraan, II ¶¶ 13, 14 & Exh. 9 Deposition of Benjamin
M. Maraan II at 16:14 to 17:25 (PAGEID ##: 355-56).
The “Call
Detail” sheets confirm that three calls came after the August 7
notification,
part.
suggesting
far
more
culpability
on
Defendant’s
Thus, we conclude that, of the five calls to the “7023”
number, only three were made “willfully or knowingly” by DISH.
IV.
Conclusion
That
portion
of
Defendant’s
Motion
for
Summary
Judgment
arguing that Plaintiff lacks both constitutional and statutory
standing to bring this action against it for violations of the
Telephone
Consumer
Protection
Act,
47
227(b)(1)(A)(iii), as amended, is DENIED.
U.S.C.
§
That portion that
argues that DISH Network is entitled to judgment as a matter of
law as to all but five incoming calls to the cellular telephone
number
(513)
448-7023
number—specifically
calls
made
on
07/01/12, 08/07/12, 08/19/12, 12/05/12 and 05/07/13—is GRANTED.
Finally, that portion that argues that DISH Network did not make
the
aforementioned
five
calls
“willfully
and
knowingly”
is
GRANTED as to the calls made on 07/01/12 and 08/07/12 but DENIED
as to the remaining three.
This matter is set for a status
conference on December 2, 2014 at 2:00 p.m., during which both
Plaintiff and a representative from Defendant are instructed to
17
either
be
present
or
immediately
available
by
telephone.
Defendant’s representative must be invested with authority to
settle
this
matter
on
his
or
her
own
without
additional
consultation with any other company representative.
SO ORDERED.
Dated:
November 18, 2014
s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
18
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