Morgan v. Branson Vacation & Travel LLC et al

Filing 23

ORDER granting 14 Plaintiff's Motion for Partial Summary Judgment; denying 18 Defendant's Motion to Strike Plaintiff's Motion for Partial Summary Judgment. Signed by Honorable Robin J. Cauthron on 10/4/13. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JOHN MORGAN,
Plaintiff,
vs.
BRANSON VACATION & TRAVEL,
LLC; and DOES 1-10, inclusive,
Defendants.

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Case Number CIV-13-188-C

MEMORANDUM OPINION AND ORDER
Plaintiff filed the present action, asserting that Defendant Branson Vacation &
Travel, LLC (“Branson”) violated provisions of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii). According to Plaintiff, Defendant repeatedly
called his cell phone number using an automatic dialing system. Plaintiff argues that such
actions are violations of the TCPA and that he is entitled to statutory damages under that
Act. Plaintiff has filed a Motion for Partial Summary Judgment, asserting that the
undisputed material facts demonstrate he is entitled to relief on his claims.*
The following facts are undisputed. Plaintiff has a telephone with the last four
digits being 6743. Beginning in 2012, Plaintiff began receiving calls to his 6743 number
from a telephone number ending in 0780. The 0780 number is owned by Defendant

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Defendant has moved to strike the Motion for Partial Summary Judgment, arguing that it
was untimely filed. However, as Plaintiff noted in his response, the deadline for filing summary
judgment fell on a weekend and the next Monday was a holiday. Therefore, Plaintiff’s filing on the
following day the Court was opened for business was timely under the Scheduling Order. See
Fed. R. Civ. P. 6; LCvR 6.1. Accordingly, Defendant’s Motion to Strike will be denied.

Branson. Between June 28, 2012, and January 23, 2013, Branson called the 6743 number
37 times. Each of those calls were made with a dialing software called “VICIdial Call
Center Suite.” That calling software places calls and only if those calls are answered are
the calls routed to a live person. Morgan did not offer his 6743 number to Branson or
provide consent for Branson to call him. Plaintiff asserts that the 6743 number is his TMobile cellular phone. Defendant argues this fact is disputed, as the evidentiary material
it has is so redacted that it is impossible to determine if the number is in fact a cellular
number. However, in seeking summary judgment, Plaintiff provided an affidavit wherein
he testified under oath that the number in question, 6743, was indeed his cellular number.
Defendant has failed to come forward with any evidentiary material from which a
reasonable jury could find that the 6743 number is not Plaintiff’s cellular phone number.
Therefore, the Court finds that Plaintiff has established that 6743 is in fact his cellular
phone.
The relevant section of the TCPA provides:
It shall be unlawful for any person within the United States . . .
(A) to make any call (other than a call made 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 . . .
....
(iii) to any telephone number assigned to a . . . cellular
telephone service . . .

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47 U.S.C. § 227(b)(1)(A)(iii).
It is undisputed that Branson placed at least 37 calls to the 6743 number and that
those calls were made with an automatic dialing system subject to the TCPA.
Accordingly, the Court finds that Plaintiff has established the elements of his claim for
violation of the TCPA by Branson. The only defense available to Branson at law is that
Plaintiff had provided consent to receive calls at the 6743 number. However, the
undisputed evidence before the Court demonstrates that Plaintiff did not provide his
consent.
Defendant argues that it has offered evidence showing good faith measures to
ensure it was in compliance with the TCPA. However, Defendant has offered no legal
authority to establish the existence of a good faith defense. Defendant’s good faith is
immaterial as the statute imposes strict liability for violations. See Alea London Ltd. v.
Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011), cert. denied, ___ U.S. ___,
132 S.Ct. 553 (2011); Branham v. ISI Alarms, Inc., No. 12-CV-1012 (ARR) (MDG),
2013 WL 4710588, *8 (E.D.N.Y. 2013).
As Plaintiff notes, § 227(b)(3)(B) provides that a plaintiff may “recover for actual
monetary loss from . . . a violation, or . . . receive $500 in damages for each . . . violation,
whichever is greater.” Here, the undisputed facts demonstrate that Defendant called
Plaintiff 37 times. Plaintiff has offered no evidence of actual damages and requests

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statutory damages. Based on the provisions of the statute and the undisputed facts, the
Court finds that Plaintiff is entitled to recover $18,500.00 in statutory damages.
Plaintiff also requests treble damages, noting that the statute states, “[i]f the court
finds that the defendant willfully or knowingly violated this subsection . . . the court may,
in its discretion, increase the amount of the award to an amount equal to not more than 3
times the amount available under subparagraph (B) of this paragraph.” 47 U.S.C.
§ 227(b)(3). Plaintiff argues because there is no evidence that Branson attempted to
secure his consent or make any other effort to comply with the law, that he has
demonstrated Branson’s actions were willful and/or knowing. In response, Branson sets
forth a number of steps it took which it claims demonstrated its good faith and attempts
to comply with customers’ Do Not Call requests, such as obtaining copies of Do Not Call
lists and purchasing its call lists from third-party vendors who asserted that the telephone
numbers listed were only landlines.
Unlike liability under the statute, the issue of treble damages hinges on intent.
Alea London Ltd., 638 F.3d at 776. On the evidence before the Court, it is impossible to
determine whether or not Branson’s actions were willful or knowing. Accordingly, to the
extent Plaintiff seeks treble damages in his summary judgment, that portion of the motion
will be denied. If Plaintiff wishes to pursue a claim for treble damages through trial, he
must file notice with the Court no later than Wednesday, October 16, 2013. Otherwise,
judgment will enter only for the amounts noted herein.

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Plaintiff named John Does 1-10 in his Complaint. There is no evidence that
Plaintiff has made any effort to identify those Defendants or serve process on them.
Fed. R. Civ. P. 4(m) requires service within 120 days of filing the Complaint.
Accordingly, Plaintiff shall, no later than Wednesday, October 16, 2013, show cause why
his claims against the John Doe Defendants should not be dismissed.
For the reasons set forth herein, Defendant’s Motion to Strike Plaintiff’s Motion
for Partial Summary Judgment (Dkt. No. 18) is DENIED. Plaintiff’s Motion for Partial
Summary Judgment (Dkt. No. 14) is GRANTED. Plaintiff is entitled to damages in the
amount of $18,500.00. As set forth herein, Plaintiff is to notify the Court of his intent to
further pursue treble damages and establish grounds for his failure to serve Defendants
Does 1-10 no later than Wednesday, October 16, 2013. A separate judgment will issue
at the close of this matter.
IT IS SO ORDERED this 4th day of October, 2013.

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