COMMUNITY VOCATIONAL SCHOOLS OF PITTSBURGH, INC. v. MILDON BUS LINES INC.
MEMORANDUM OPINION re 93 MOTION for Summary Judgment filed by MILDON BUS LINES INC. For the reasons indicated in the attached memorandum opinion, the motion for summary judgment filed by defendant Mildon Bus Lines, Inc. will be granted. Signed by Chief Judge Joy Flowers Conti on 02/09/2018. (nls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SCHOOLS OF PITTSBURGH, INC., a
corporation, individually and as the
representative of a class of similarly situated
MILDON BUS LINES, INC., a Pennsylvania
Defendant/ Third Party Plaintiff,
CAROLINE ABRAHAM and JOEL
Third Party Defendants.
CIVIL ACTION NO. 09-1572
Conti, Chief District Judge
Plaintiff Community Vocational Schools of Pittsburgh, Inc. (“plaintiff” or “Community
Vocational Schools”) brings this action under the Telephone Consumer Protection Act, as
amended by the Junk Fax Prevention Act of 2005 (“TCPA”), 47 U.S.C. § 227. Presently pending
before this court is the motion for summary judgment filed by defendant Mildon Bus Lines, Inc.
(“defendant” or “Mildon”). (ECF No. 93.) For the reasons fully explained in this opinion,
Mildon’s motion for summary judgment will be granted because Community Vocational Schools
lacks standing and because there is insufficient evidence from which a reasonable jury could find
that Mildon violated the TCPA with respect to Community Vocational Schools.
Community Vocational Schools initiated this action on November 30, 2009, against
Mildon advancing a claim under the TCPA for sending an unlawful facsimile advertisement. (ECF
No. 1.) Mildon filed a motion to dismiss on February 3, 2010, (ECF No. 4), and in response,
Community Vocational Schools filed its first amended class action complaint on February 11,
2010. (ECF No. 7.) Specifically, Community Vocational Schools alleges that Mildon on or about
January 11, 2006, sent one unsolicited advertisement to it by telephone facsimile machine in
violation of the TCPA. (ECF No. 7, ¶¶ 10, 12.) On February 16, 2010, Erie Insurance Exchange
(“Erie”) filed a claim against defendant, in the Court of Common Pleas of Allegheny County at
Erie Ins. Exch. v. Mildon Bus Lines, Inc. & Community Vocational Sch. of Pittsburgh, Alleg. Cty.
Ct. of Common Pleas, Civil Action No. GD-10-003030 (“coverage action”), concerning insurance
coverage with respect to this action. Mildon filed a motion to dismiss the amended complaint filed
in this action on February 18, 2010. The motion to dismiss was denied without prejudice on
August 6, 2010, just prior to Mildon filing for bankruptcy. (Status Conference 8/26/10; ECF Nos.
On July 27, 2010, Mildon filed for bankruptcy in In re Mildon Bus Lines, Ins., Bankruptcy
Action No. 10-25312, in the United States Bankruptcy Court for the Western District of
Pennsylvania. A suggestion of bankruptcy was filed in the instant action on September 22, 2010.
(ECF No. 26.) That same day, this court issued a stay pending resolution of Mildon’s bankruptcy
proceedings. (ECF Nos. 26, 27.) The bankruptcy court, in light of Mildon’s possible insurance
coverage, lifted the automatic stay to permit the coverage action to proceed to the extent of the
coverage. (Bankruptcy Action No. 10-25312, ECF No. 79.) The bankruptcy case was terminated
on October 23, 2012, with the defendant receiving a discharge. (ECF Bankruptcy No. 85.)
After the termination of the bankruptcy action, this court continued the stay of this matter
pending the resolution of the summary judgment motions filed by Erie and Community Vocational
Schools in the coverage action. (ECF No. 64 at 2.) On November 22, 2016, after being advised
that summary judgment was denied in the coverage action, this court held a status conference, at
which point, this court lifted the stay and reopened the case and ordered fact discovery to be
completed on or before February 15, 2017. (ECF No. 49.) Due to the bankruptcy and ensuing
coverage litigation, this case had been stayed for approximately six years and four months and this
matter has been active in this court for only one and a half years.
After the stay was lifted, Mildon filed its answer and affirmative defenses on December
15, 2016. (ECF No. 50.) On December 20, 2016, with leave, Mildon filed a third-party complaint
joining Caroline Abraham and Joel Abraham as third-party defendants. (ECF Nos. 52, 53.) On
January 30, 2017, this court granted Community Vocational Schools’ unopposed motion to extend
fact discovery and ordered that discovery be completed on or before May 15, 2017. (ECF No. 62.)
Erie filed a motion for leave to intervene pursuant to Federal Rule Civil Procedure 24 on February
1, 2017, (ECF No. 64), which was denied on March 27, 2017, with prejudice. (ECF No. 80.) On
April 18, 2017, default was entered against the third-party defendants.1 (ECF Nos. 89-90.)
After the close of discovery, on July 7, 2017, Mildon filed its motion for summary
judgment, (ECF No. 93), brief in support thereof, (ECF No. 94), and concise statement of material
Presently pending before this court is Mildon’s motion for default judgment against third-party
defendants Caroline Abraham and Joel Abraham. (ECF No. 83.) Because of this court’s ruling
on the motion for summary judgment and the allegations in the motion for default judgment, the
court will deny the motion for default judgment without prejudice and permit a renewed motion to
be filed after the court holds a status conference.
facts. (ECF No. 95.) On August 7, 2017, Community Vocational Schools filed its response in
opposition to Mildon’s motion for summary judgment, (ECF No. 105), and to Mildon’s concise
statement of material facts. (ECF No. 106.) Mildon filed a reply brief on August 28, 2017, (ECF
No. 107), along with a reply to Community Vocational Schools’ concise statement of material
facts. (ECF No. 108.) The parties filed their combined statement of material facts (“CCSMF”) on
September 7, 2017, as required by this court’s Chamber Rule 3.F.c.ii. (ECF No. 110.) A hearing
on the motion for summary judgment was held on September 19, 2017, and the parties were
ordered to file supplemental briefs. (Minute Entry & Order 9/20/2017.) Community Vocational
Schools filed its supplemental brief on September 26, 2017. (ECF No. 112.) Mildon filed its
response in opposition on October 3, 2017. (ECF No. 113.) This matter is now ripe for
In January 2006, Caroline and Joel Abraham d/b/a as Business to Business Solutions
(“B2B”) contacted Mildon about hiring B2B to write, design, and transmit a facsimile
advertisement on Mildon’s behalf.4 (CCSMF ¶ 1.) On January 10, 2006, Mildon sent a check in
the amount of $268.00 to B2B as consideration for 5,000 faxed advertisements. (Id. ¶ 2.) Mildon,
Plaintiff also filed a motion to certify the class. (ECF No. 97.) Because of this court’s ruling on
the motion for summary judgment, the motion to certify the class will be denied without prejudice
by separate order.
Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2). See (ECF No. 7, ¶ 7.) The
factual background is taken from the undisputed evidence of record, including the parties’
Combined Statement of Material Facts, which synthesizes Mildon’s Concise Statement of Material
Facts with Community Vocational Schools’ responses stated in his opposition, (ECF No. 110);
evidence not properly disputed on the record; and the disputed evidence of record viewed in the
light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
B2B ran multiple phone lines for faxing into the Abrahams’ residential home, approximately
twenty-eight to twenty-nine lines, which were connected to various modems so that multiple
facsimile advertising campaigns could be run simultaneously daily for multiple clients. (Id. ¶ 34.)
however, never received any documentation from B2B that the fax campaign had occurred. (Id.
As part of a separate litigation action in the United States District Court for the District of
New York (“New York action”), to which Community Vocational Schools was not a party, present
counsel for Community Vocational Schools obtained in discovery a DVD and a hard drive
belonging to B2B. (Id. ¶ 7; ECF No. 98-3.) On the hard drive, Community Vocational Schools
located what it believes to be a copy of a facsimile advertisement sent to it and which it attached
as Exhibit A to its first amended complaint. (CCSMF ¶¶ 4, 6-7.) Its counsel provided the DVD
and the hard drive to Robert Biggerstaff (“Biggerstaff”) for purposes of this action.5 (CCSMF ¶
8.) Community Vocational Schools filed this action though the counsel that obtained the DVD
and hard drive in the New York action and is using the same expert, Biggerstaff.
As part of this case, Biggerstaff was asked to review and analyze the DVD and hard drive
with respect to records and any recorded fax transmissions related to Mildon. (CCSMF ¶¶ 8, 15.)
In response, Biggerstaff located two archived directories on the DVD dated January 11, 2006, that
contained an image file and xferfaxlogs from HylaFAX software. (Id. ¶ 16.) Biggerstaff found
no additional logs related to Mildon. (Id. ¶ 17.) Biggerstaff testified that the xferfaxlogs were
created by the HylaFAX software used by B2B for facsimile advertising campaigns and reflect
how many pages had been confirmed as faxed/sent/received by the positive confirmation process
in the T.30 fax transmission standard. (Id. ¶ 18.)
Biggerstaff has been the expert in numerous cases involving this hard drive and DVD and has
been an expert in over 100 cases involving B2B. (ECF No. 96-3, at 9-10.)
Biggerstaff describes the five-phase confirmation process as follows: (1) Call
establishment; (2) Pre-message procedure; (3) In-message procedure and message transmission,
(4) Post-message procedure, and (5) Call release. (ECF No. 98-4). He explains:
Because a record of a successful transmission by a computer based facsimile
transmission system capable of sending standard T.30 fax transmissions, reflects
the successful completion of all 5 phases of the T.30 fax transmission to a device
with a fax-modem, and every device with a fax-modem capable of receiving a T.30
fax transmission has the capacity to print the contents of that transmission, a record
of a successful transmission by computer based facsimile transmission is a record
that such a transmission was sent to and received by “equipment which has the
capacity to transcribe text or images (or both) from an electronic signal received
over a regular telephone line onto paper.”
Biggerstaff admitted, however, that the logs by their nature do not show what was sent and,
therefore, the logs do not show whether or not the alleged fax attached as Exhibit A to the Amended
Complaint was sent or whether there was an image rendering issue. (ECF No. 96-3, 189.) The
only way to determine what actually was sent, if anything, would be to review the Doc Q file,
which was not found on Biggerstaff’s review of the DVD and hard drive.6 (Id. at 190.) According
to Biggerstaff, Doc Q files are routinely erased because they take up an enormous amount of space
on a computer’s hard drive. (ECF No. 96-3, 190-91.) Plaintiff does not, however, provide any
forensic evidence through Biggerstaff or otherwise that a Doc Q file has been erased or even
existed on the DVD or hard drive with respect to Mildon. The fax logs indicate that Community
Vocational Schools’ phone line was occupied for one minute and sixteen seconds on January 11,
2006, by a facsimile transmission from B2B on behalf of Mildon. (ECF No. 98-4.)
There is nothing to indicate that Mildon or B2B would have erased a Doc Q file with respect to
the Mildon campaign.
Notably, Community Vocational Schools does not have a copy of a facsimile log/report or
transmission history from Community Vocational Schools’ facsimile machine that identifies the
date and time at which it allegedly received the facsimile transmission/advertisement from Mildon.
(Id. ¶ 5.) Community Vocational Schools does not have the physical copy of the facsimile that it
purportedly received, even though it was collecting faxes for the purpose of bringing an action,
and did not keep its facsimile machine either. (CCSMF ¶¶ 4, 5.)
Richard Gans (“Gans”), Vice President of Community Vocational Schools and Community
Vocational Schools’ representative in this matter, testified at his deposition that Community
Vocational Schools had a policy of collecting the junk faxes it received and forwarding them to its
attorney. (ECF No. 97-1, at 19.) From 2005-2006, Community Vocational Schools collected all
the junk faxes that it received each day and sent them along to the corporate office once a week,
and the corporate office would forward them along to its attorney for the purpose of filing a lawsuit.
(Id. at 19-20.) Specifically, Gans testified:
Q: Is that how you came to be aware of Mildon Bus Lines, from Attorney Max
A: Well, I sent faxes to him that were received in all of our schools, approximately,
at one point, 250 a week, and among the faxes that I provided him may have been
a Mildon fax.
Q: And you provided these faxes to Mr. Margulis when?
Q: In what year?
A: From 2001 to present. . . . .
Q: What direction, for instance, would you have given to John Casablancas
Modeling & Career Centers in Pittsburgh,7 regarding what they should do with
faxes that came across their machine?
A: They should put them in a pile and send them to the corporate office once a
Q: Was John Casablancas Modeling & Career Centers, in 2005, 2006, complying
with your direction?
A: Yes. . . .
Q: And you would take those faxes and turn them all over to Attorney Margulis?
(Id. at 19-20.) Gans testified that he could not recall the fax claimed to be sent here or identify
any employee or representative of Community Vocational Schools who would have knowledge
about the actual receipt of the alleged fax. 8 (ECF No. 94, Ex. E.)
Biggerstaff was able to identify Exhibit A attached to Community Vocational Schools’
first amended complaint as a portable document format (“PDF”) image found on the B2B hard
drive. (CCSMF ¶ 9.) Biggerstaff testified that as part of the process of faxing an advertising
campaign, any actually faxed document would have been converted to a bitmap file prior to
sending. (ECF No. 96-3, 86.) Biggerstaff admitted that he has never seen a printout of any
advertisement actually faxed as part of the Mildon campaign, and that an actual bitmap of the PDF
file that would have been created by the conversion of a bitmap file for transmission was not found
on the hard drive. (CCSMF ¶ 11.)
Community Vocational Schools used Jack Casablancas Modeling & Career Centers as a trade
name. (ECF No. 98-2, 10-11.)
Gans testified that he has been deposed or has verified complaints or answers to discovery in
twenty to fifty TCPA cases, (ECF No. 97-1, 5-6), although not all the cases involve Community
Vocational Schools, (Id. at 5.)
Biggerstaff testified that the hard drive provided to him by Community Vocational
Schools’ counsel does not contain any files showing an image that was rendered by the faxing
software, HylaFAX, for Mildon. (Id. ¶ 12.) Biggerstaff explained that files that would show an
actually faxed document were typically erased and deleted as part of the ordinary conduct of
business in the industry and by inference by B2B. (ECF No. 96-3, 189-90.) Caroline Abraham
testified that the images found on the hard drive were not an actual image of any completed
received fax because the receiving fax machines would have included date and time stamps as part
of the fax number. (CCSMF ¶ 13.)
Biggerstaff indicated that he “believes” that the fax advertisement was successfully
transmitted based on the source code and logs contained on the hard drive that confirm through a
positive-confirmation process that a one-page fax went through with no error detected or recorded.
(Id. ¶ 19.) Biggerstaff testified that in order to limit the possibility that a wrong file would be sent
to the wrong list, the files were named by B2B using the client or customer name. (ECF No. 96-3
at 144.) Mildon’s campaign files and folders found on the disk were named “Esther” or “Mildon
Bus Lines.” (Id. at 144-45.) Biggerstaff infers that a TCPA violative fax was sent because the fax
logs reflect an error-free fax transmission occurred and he found a pdf of an advertisement on the
DVD. (ECF No. 96-3 at 64-65.)
Caroline Abraham, who along with Joel Abraham did business as B2B, provided testimony
at a deposition in a separate matter that the Mildon advertising campaign had rendering problems,
(CCSMF ¶ 22), meaning the faxes were going out blank “or something”, and she did not know
what was wrong, but during this time they were showing up like they had been delivered, (ECF
No. 96-11, 153.). She testified that they had resent everything after the rendering problem was
discovered, (ECF No. 96-11, 153.)9 Biggerstaff testified that he could not find any reason why
Caroline Abraham said there had been a rendering problem during the Mildon campaign, (ECF
No. 96-3 at 179), but also admitted that he could not eliminate the possibility of rendering problems
having occurred outside of the one he had identified with respect to the Veranda font. (Id. at 199.)
Biggerstaff testified that the Veranda font was not used in the fax purported to be sent in this case.
(Id. at 96-3 at 174.) After discovering the rendering problem with the Mildon fax campaign, B2B
began regularly using verification faxes beginning January 12, 2006, the day after the purported
fax was sent to Community Vocational Schools. (CCSMF ¶ 32; ECF No. 96-3 at 171-72.) During
the week of January 11, 2006, after the purported advertisement was already sent, B2B instead of
using a PDF began using a tagged image file format (which itself was a bitmapped image).
(CCSMF ¶ 33; ECF No. 96-3 at 184, 191.)
Mildon specifically asserts that 1) Community Vocational Schools lacks standing because
Community Vocational Schools cannot prove that it sustained a concrete injury that falls within
the zone of interest sought to be protected by the TCPA; and 2) it is entitled to summary judgment
because there is insufficient evidence that Mildon sent a fax advertisement to Community
Vocational Schools in violation of the TCPA. Mildon points out that Community Vocational
Schools has no record of receiving the fax, businesses have no privacy interest in being left alone,
and there is no concrete proof that the alleged fax interrupted Community Vocational Schools’
business. Mildon argues that the lack of evidence to show a fax was received demonstrates
No evidence was adduced demonstrating that a Mildon fax was resent to Community Vocational
Schools after the rendering problem. Caroline Abraham testified on numerous occasions that a
rendering problem had occurred. (ECF Nos. 96-7 at 183, 96-8 at 111; 96-9 at 80-82; 96-10 at 7176; 96-11 at 153; 96-12 at 165-167.)
Community Vocational Schools lacks standing, i.e., Community Vocational Schools failed to
adduce sufficient evidence to find that it suffered an injury in fact. Mildon asserts that Community
Vocational Schools did not suffer an injury in fact because: 1) Community Vocational Schools’
representative, Gans, has no recollection of receiving the fax; and 2) Community Vocational
Schools’ expert, Biggerstaff, cannot demonstrate that an unsolicited advertisement was indeed
transmitted to it.
Community Vocational Schools, citing Palm Beach Golf Center-Boca, Inc. v. John G.
Sarris, D.D.S., 781 F.3d 1245 (11th Cir. 2015), responds that other courts have found standing
where the plaintiff failed to retain or could not recall having received a fax sent by B2B.10 Mildon,
in its reply, argues that it is undisputed that rendering issues occurred during the time frame of the
alleged Mildon campaign, from January 11, 2006, through January 16, 2006; that HylaFAX logs
would record successful transmissions despite rendering issues; that there is no way to know what
was actually transmitted, if anything; and that the hard drive contains no proof that an
“advertisement” was sent.
With respect to an unsolicited faxed advertisement sent by B2B on December 13, 2005, the
United States Court of Appeals for the Eleventh Circuit stated:
While the record does not demonstrate that the fax advertising Defendant’s dental
practice was printed or seen by any of Palm Beach Golf’s employees, there is
unrefuted record evidence that the fax information was successfully transmitted by
B2B’s fax machine and that the transmission occupied the telephone line and fax
machine of Palm Beach Golf during that time.
Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., 781 F.3d 1245, 1251 (11th Cir.
2015) (emphasis added). The unrefuted evidence was an expert report that confirmed “the
successful fax transmission. . . . .” Id. at 1249. Here, Mildon contests the expert’s opinions by
pointing to, among other things, the insufficiency of the evidence and the rendering problem that
occurred during the Mildon fax campaign.
During the hearing on September 19, 2017, the parties were ordered to file supplemental
briefs with respect to the effect on this case of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), and
its progeny. Community Vocational Schools argues that since Spokeo, numerous courts have
addressed standing under the TCPA and have been nearly uniform in finding that a transmission
that is a violation of the TCPA confers standing because it illegally occupies the plaintiff’s phone
line. Community Vocational Schools argues that it has standing under Spokeo because the TCPA
elevated the “nuisance” of having one’s phone line occupied by an unsolicited fax advertisement
to a “legally cognizable injury” and its fax line was occupied for one minute and sixteen seconds.
Mildon responds that Community Vocational Schools failed to adduce sufficient evidence to show
that the occupation of its fax machine was based on an “unsolicited advertisement” as defined
under the TCPA, or that the fax provided as Exhibit A to the amended complaint was sent on
behalf of Mildon. Mildon argues that Community Vocational Schools has no evidence that a fax
was received or that Community Vocational Schools’ fax machine was tied up by a fax
advertisement within the meaning of the TCPA.
Standards for Standing and Summary Judgment
Standard for Standing11
“Article III of the Constitution limits the federal judiciary’s authority to exercise its
‘judicial Power’ to ‘Cases’ and ‘Controversies.’” Plains All Am. Pipeline L.P. v. Cook, 866 F.3d
534, 538-39 (3d Cir. 2017) (quoting U.S. CONST. art. III, § 2)). “This case-or-controversy
limitation, in turn, is crucial in ‘ensuring that the Federal Judiciary respects the proper—and
Although the parties do not address statutory standing, it bears mentioning that in Leyse v. Bank
of American National Association, 804 F.3d 316, 322-23 (3d Cir. 2015), the Court of Appeals for
the Third Circuit determined that a plaintiff who actually receives an automated telemarketing call,
even though not the intended recipient, has statutory standing. Thus, the actual receipt of the call
was determinative for statutory standing.
properly limited—role of the courts in a democratic society.’” Plains All Am. Pipeline L.P. v.
Cook, 866 F.3d 534, 539 (3d Cir. 2017) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
341 (2006)). Standing is one of the justiciability doctrines rooted in the case-or-controversy
provision and affects the subject-matter jurisdiction of the court by limiting who can pursue their
claims in federal court. Cottrell v. Alcon Labs, 874 F.3d 154, 162 (3d Cir. 2017); Hamilton v.
Bromley, 862 F.3d 329, 334 (3d Cir. 2017); Leyse v. Bank of Am. Nat. Assoc., 804 F.3d 316, 321
(3d Cir. 2015). Standing “limits the category of litigants empowered to maintain a lawsuit in
federal court to seek redress for a legal wrong.” Spokeo, 136 S. Ct. at 1547. Because constitutional
standing implicates this court’s subject-matter jurisdiction, it is addressed as a threshold matter.
Taha v. County of Bucks, 862 F.3d 292, 301 n.4 (3d Cir. 2017).
Constitutional standing must exist at all stages of litigation. Knick v. Twp. of Scott, 862
F.3d 310, 318-19 (3d Cir. 2017). The plaintiff bears the burden of proof on standing. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 561 (1992). Depending on the stage of litigation, the plaintiff’s
burden of proof on standing varies because each element of standing “must be supported in the
same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of the litigation.” Id. (emphasis added).
Where standing is raised on summary judgment, the plaintiff must “‘set forth’ by affidavit or other
evidence ‘specific facts’” that establishes its standing. Id. (quoting Fed. R. Civ. P. 56(e). Thus,
Community Vocational Schools bears the burden of proving the minimal constitutional
requirements for standing: injury in fact, causation, and redressability. Knick, 862 F.3d at 317.
Standard for Summary Judgment
Summary judgment may be granted where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the court must enter summary
judgment against a party who fails to make a showing sufficient to establish an element essential
to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 332 (1986). In evaluating the evidence, the court must interpret the evidence
in the light most favorable to the nonmoving party, drawing all reasonable inferences and doubts
in the nonmoving party’s favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007);
Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001). In doing so,
however, a court cannot make credibility determinations. Simpson v. Kay Jewelers, Div. of
Sterling, Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998).
The burden on a motion for summary judgment is initially on the moving party to
demonstrate that the evidence contained in the record does not create a genuine issue of material
fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004); Aman v. Cort
Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996). A dispute is “genuine” if the evidence
is such that a reasonable trier of fact could render a finding in favor of the nonmoving party.
McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the nonmoving party will bear the
burden of proof at trial, the moving party may meet its burden by showing that the admissible
evidence contained in the record would be insufficient to carry the nonmoving party’s burden of
proof or that there is an absence of evidence to support the nonmoving party’s case. Celotex Corp.,
477 U.S. at 322, 325; Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007).
Once the movant meets its burden, the burden shifts to the nonmoving party to “set forth
specific facts showing that there is a genuine issue for trial” and to present sufficient evidence
demonstrating that there is indeed a genuine and material factual dispute for a jury to decide. FED.
R. CIV. P. 56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48; Celotex, 477 U.S. at
323-25. The nonmoving party must go beyond his or her pleadings and designate specific facts
by the use of affidavits, depositions, opposing party admissions or answers to interrogatories
showing that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 324. The
nonmoving party cannot defeat a well-supported motion for summary judgment by simply
reasserting unsupported factual allegations contained in his or her own pleadings. Williams v.
Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
One of the principal purposes of summary judgment is to isolate and dispose of factually
unsupported claims or defenses. Celotex, 477 U.S. at 323-24. The summary judgment inquiry
asks whether there is a 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.” Liberty Lobby, 477 U.S. at 250. In ruling on a motion for
summary judgment, the court’s function is not to weigh the evidence, make credibility
determinations or to determine the truth of the matter, but only to determine whether the evidence
of record is such that a reasonable jury could return a verdict for the nonmoving party. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000) (citing decisions); Liberty Lobby,
477 U.S. at 248-49; Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.3 (3d
Cir. 1998). The mere existence of a factual dispute, however, will not necessarily defeat a motion
for summary judgment. Only a dispute over a material fact—that is, a fact that would affect the
outcome of the suit under the governing substantive law—will preclude the entry of summary
judgment. Liberty Lobby, 477 U.S. at 248.
A defendant who moves for summary judgment is not required to refute every essential
element of the plaintiff’s claim; rather, the defendant must only point out the absence or
insufficiency of plaintiff’s evidence offered in support of one or more of those elements. Celotex,
477 U.S. at 322-23. If the evidence the nonmovant produces is “merely colorable, or is not
significantly probative,” the moving party is entitled to judgment as a matter of law. Liberty
Lobby, 477 U.S. at 249. The nonmoving party must “do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). To survive summary judgment, the nonmoving party must “make a
showing sufficient to establish the existence of [every challenged] element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
Furthermore, “[w]hen opposing summary judgment, the nonmovant may not rest upon mere
allegations, but rather must ‘identify those facts of record which would contradict the facts
identified by the movant.’” Corliss v. Varner, 247 F. A’ppx 353, 354 (3d Cir. 2007) (quoting Port
Auth. of N.Y. & N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002)). Inferences
based upon speculation or conjecture do not create a material factual dispute sufficient to defeat a
motion for summary judgment. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir.
The TCPA and its Junk Fax Provisions
The TCPA is a remedial consumer protection statute.12 Gager v. Dell Financial Servs.,
LLC, 727 F.3d 265, 271 (3d Cir. 2013). As a result, the court must construe the TCPA’s statutory
language “broadly to effect its purpose.” Klein v. Commerce Energy, Inc., 256 F.Supp.3d 563,
577 (W.D. Pa. 2017). If proposed interpretations of the TCPA, including its Junk Fax provisions,
The Federal Communications Commission (“FCC”) is authorized by Congress to “prescribe
regulations to implement the requirements of [the TCPA].” § 277(b)(2).
are equally plausible, the scales tip in favor of the plaintiff consumer. Leyse v. Bank of America
Nat. Ass’n, 804 F.3d 316, 327 (3d Cir. 2015).
The TCPA creates a private cause of action and makes it unlawful for any person “to use
any telephone facsimile machine, computer, or other device to send, to a telephone facsimile
machine, an unsolicited advertisement” unless the sender and recipient of the unsolicited
advertisement are in an established business relationship, the number was provided voluntarily to
the recipient by the sender, or the unsolicited advertisement contains a notice meeting the TCPA’s
enunciated requirements in § 227(b)(2)(D). 47 U.S.C. §§ 227(b)(1)(C) & (b)(3). An unsolicited
advertisement is “any material advertising the commercial availability or quality of any property,
goods, or services which is transmitted to any person without that person’s prior express invitation
or permission, in writing or otherwise.” Id. § 227(a)(5). “Importantly, Congress intended that
non-commercial faxes fall outside the TCPA’s prohibition.” Physicians Healthsource, Inc. v.
Janssen Pharm., Inc., Civ. Act. No. 12-2132, 2013 WL 486207, at *2 (D. N.J. Feb. 6, 2013).
The legislative history of the TCPA reflects that “[b]usinesses also [ ] complained to the
Congress and the Federal Communications Commission that automated or prerecorded telephone
calls are a nuisance, are an invasion of privacy, and interfere with interstate commerce.” Pub. L.
No. 102-243, § 14. In enacting the TCPA, Congress intended to remedy the telemarketer’s
attempts to “shift some of the costs of advertising from the sender to the recipient” like ink and
paper and the telemarketer “occup[ying] the recipient’s facsimile machine so that it is unavailable
for legitimate business messages while processing and printing the junk fax.” H.R. Rep. No. 102317, at *10 (1991) (emphasis added); see Missouri ex rel. Nixon v. Am. Blast Fax, Inc., 323 F.3d
649, 654-55, 657 (8th Cir. 2003). If a defendant violates the TCPA, a plaintiff is entitled to have
the violation enjoined, recover damages for the violation, or both. 47 U.S.C. § 227(b)(3). If a
defendant willfully or knowingly violates the TCPA, the court may award treble damages. Id.
The Standing of Community Vocational Schools
Of paramount importance in this case is standing’s “injury in fact” requirement. The
Supreme Court of the United States most recently clarified the injury in fact requirement necessary
to establish standing in Spokeo, Inc. v. Robins, 136 S. Ct. at 1548-49. The plaintiff in Spokeo
brought an action under the Fair Credit Reporting Act of 1970, 15 U.S.C. § 1681 et seq. (the
“FCRA”), after the plaintiff discovered that inaccurate information about him could be obtained
through the website of Spokeo, Inc. (“Spokeo”). Id. at 1544. Specifically, Spokeo’s website
contained statements that the plaintiff was married, had children, was in his “50s”, had a job, was
relatively affluent, and held a graduate degree; all of which was untrue. Id. at 1546.
The Supreme Court began its discussion of the injury in fact requirement by stating that
“Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue
to a plaintiff who would not otherwise have standing.” Id. at 1547-48 (quoting Raines v. Byrd,
521 U.S. 811, 820 n.3 (1997)). A “bare procedural violation, divorced from any concrete harm”
will not confer standing. Spokeo, 136 S. Ct. at 1549. The Court explicated that “[t]o establish
[an] injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560).
An injury is “particularized” if it “‘affect[s] the plaintiff in a personal and individual way.’”
Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560 n.1). For an injury to be “concrete”,
it “must be ‘de facto’; that is, it must actually exist”. Spokeo, 136 S. Ct. at 1548. Concrete injuries
include tangible and intangible injuries. Id. at 1549. Where an injury is intangible, in order for it
to rise to the level of an injury in fact, “both history and the judgment of Congress play important
roles.” Id. With respect to history, “it is instructive to consider whether an alleged intangible harm
has a close relationship to a harm that has traditionally been regarded as providing a basis for a
lawsuit in English or American Courts.” Id. Congress’ judgment is also instructive and “Congress
may ‘elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were
previously inadequate in law.’” Id. (quoting Lujan, 504 U.S. at 578).
“Congress is well positioned to identify intangible harms that meet minimum Article III
requirements,” Spokeo, 136 S. Ct. at 1548; however, the Court cautioned specifically that
Congress’ role in identifying and elevating intangible harms does not mean that a
plaintiff automatically satisfies the injury-in-fact requirement whenever a statute
grants a person a statutory right and purports to authorize that person to sue to
vindicate that right[;] Article III standing requires a concrete injury even in the
context of a statutory violation.
Id. The Court explained that although “Congress plainly sought to curb the dissemination of false
information” with its enactment of the FCRA, a bare procedural violation would be insufficient to
satisfy Article III’s standing requirement. Id. at 1550. The Supreme Court remanded the case
because the Court of Appeals for the Ninth Circuit had failed to address this concreteness
requirement. Id. at 1544-45.
In In re Nickelodeon Consumer Privacy Litigation, 827 F.3d 262 (3d Cir. 2016), the Court
of Appeals for the Third Circuit explained that the Supreme Court’s holding in Spokeo did not
alter prior Third Circuit precedent. Id. at 272-73. Additionally, the court noted that “in some cases
an injury-in-fact ‘may exist solely by virtue of statutes creating legal rights, the invasion of which
creates standing.’” Id. at 273 (quoting In re Google Inc. Cookie Placement Consumer Privacy
Litig., 806 F.3d 125, 134 (3d Cir. 2015)). In fact, standing may exist “even absent evidence of
actual monetary loss.” In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 636
(3d Cir. 2017). Nonetheless, “there are some circumstances where the mere technical violation of
a procedural requirement of a statute cannot, in and of itself, constitute an injury in fact.” Id. at
638. Because a technical violation was not before the court, it declined to address “the full reach
of congressional power to elevate a procedural violation into an injury in fact.” Id.
In In re Horizon Healthcare Services Inc. Data Breach Litigation, the Third Circuit Court
of Appeals described the concreteness test in Spokeo as follows:
There are thus two tests for whether an intangible injury can (despite the obvious
linguistic contradiction) be “concrete.” The first test, the one of history, asks
whether “an alleged intangible harm” is closely related “to a harm that has
traditionally been regarded as providing a basis for a lawsuit in English or American
Courts.” . . . . If so, it is likely to be sufficient to satisfy the injury-in-fact element
of standing. . . . But even if an injury was “previously inadequate in law,” Congress
may elevate it “to the status of [a] legally cognizable injur[y].” The second test
therefore asks whether Congress has expressed an intent to make an injury
Id. (quoting Spokeo, 1366 S. Ct. at 1549)) (internal citations and quotations omitted) (final two
alterations in original).
In Susinno v. Work Out World Inc., 862 F.3d 346 (3d Cir. 2017), a recent TCPA case, the
Third Circuit Court of Appeals considered, inter alia, whether the plaintiff had sustained a
sufficiently concrete injury for Article III standing. Id. at 348. The plaintiff in Susinno alleged
that defendant, a fitness company, violated the TCPA when it called her cell phone without her
prior expressed permission and left a one-minute voicemail that was a prerecorded promotional
offer. Id. at 348.
The court of appeals explained the rule it set forth in Horizon:
When one sues under a statute alleging “the very injury [the statute] is intended to
prevent,” and the injury “has a close relationship to a harm . . . traditionally . . .
providing a basis for a lawsuit in English or American courts,” a concrete injury
has been pleaded. . . . We do not, and need not, conclude that intangible injuries
falling short of this standard are never concrete . . . . Rather, we simply observe that
all intangible injuries that meet this standard are concrete.
Id. at 351 (quoting In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d at 638-40)
(emphasis in original) (first three alterations in original). Applying this test, the court of appeals
found plaintiff’s injuries in Susinno were concrete. Id.
First, the court found that a single prerecorded phone call was the type of “nuisance and
invasion of privacy” that Congress sought to prevent with the TCPA. Id. Second, the court of
appeals turned to the historical inquiry and explained that this test requires that the cause “of action
protect essentially the same interests that traditional causes of action sought to protect.” Id. The
court of appeals concluded that in enacting the TCPA, Congress had elevated a harm, a single
phone call, that, while previously inadequate at law, was of the same character as previously
existing legally cognizable injuries. Id. at 351-52.
Unlike courts in other jurisdictions, the Court of Appeals for the Third Circuit in reaching
its decision in Susinno, did not declare that a mere TCPA violation is always an injury that is
sufficiently concrete for purposes of standing but rather engaged in the two-part analysis that it set
forth in Horizon. Compare Susinno, 862 F.3d at 350-351 (explaining “we hold that the TCPA
provides Susinno with a cause of action, and that her injury satisfies the concreteness requirement
for constitutional standing”) (emphasis added); with, e.g., Palm Beach Golf Ctr.-Boca, Inc. v. John
G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1252 (11th Cir. 2015) (explaining that the TCPA creates a
cognizable right), and Swetlic Chiropractic & Rehab. Ctr., Inc., 235 F.Supp.3d 882, 888 (S.D.
Ohio 2017) (providing that “the receipt of an impermissible fax constitutes a concrete and
particularized injury”) (emphasis added).
In fact, in a decision post-Spokeo, one judge in this district found that a professional
plaintiff did not have standing even in the presence of a clear TCPA violation where the plaintiff
had purchased thirty-five cell phones and cell phone numbers with the “hope” of being able to file
numerous TCPA claims. Stoops v. Wells Fargo Bank, N.A., 197 F.Supp.3d 782, 788, 800 (W.D.
Pa. 2016). In Stoops, the district court found that the professional plaintiff could not establish an
injury in fact “[b]ecause [p]laintiff ha[d] admitted that her only purpose in using her cell phones
[was] to file TCPA lawsuits, the calls [were] not ‘a nuisance and an invasion of privacy’” from
which Congress in enacting the TCPA intended to protect consumers. Id. at 800 (quoting In re
Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7890
(2015)). While it is arguable that as a matter of policy the mere use of a fax line for one minute
and sixteen seconds without anything further is the sort of nuisance that Congress was trying to
prevent in enacting the TCPA, this case does not turn on that issue.13
Even applying the more lenient standard that other jurisdictions have adopted, i.e., that a
mere TCPA violation is sufficient for Article III standing, Community Vocational Schools did not
proffer sufficient evidence to meet its burden to show that is has standing. It did not advance
sufficient evidence to show that it actually received a faxed advertisement or that a faxed
advertisement was sent and tied up its fax line, i.e., it sustained an injury by receiving or being
sent an unsolicited advertisement fax, which is the very injury Congress was seeking to prevent in
enacting the TCPA. See Susinno, 862 F.3d at 351; Broking v. Green Brook Buick GMG Suzuki,
Civ. Act. No. 15-1847, 2017 WL 3610490, at *8 (D. N.J. Aug. 22, 2017); City Select Auto Sales,
Inc. v. David Randall Assocs., Inc., 296 F.R.D. 299, 310 (D. N.J. 2013).
The evidence does not reveal that Community Vocational Schools was only capable of receiving
one fax at a time, and thus was unable to receive faxes during a transmission. Indeed, the evidence
is that Community Vocational Schools could receive at least six communications at a time due to
it having six lines. (ECF No. 97-1, at 26.) It is not clear from this evidence whether a phone line
would have actually been tied up by an incoming fax. Even though the plaintiff bears the burden
on standing, it provided no evidence that it was unable to receive faxes during the one minute and
sixteen second transmission, any paper was used, or any ink was lost.
There is insufficient evidence to demonstrate that Exhibit A in the Amended Complaint
was sent or received. Community Vocational Schools had a specific procedure set up to collect
junk faxes that might give rise to a TCPA junk fax claim. Community Vocational Schools’
representative could not recall receiving a Mildon advertisement fax and was not aware of anyone
who would be able to recall receiving that kind of fax. Indeed, there is no evidence that
Community Vocational Schools perceived that any injury may have occurred until after someone
contacted it for purposes of this lawsuit.14 Additionally, there is no verification fax; there is no
bitmap file, there is no fax with a fax header indicating whether the fax was sent or received;
Community Vocational Schools does not have a copy of the facsimile log/report or transmission
history from its fax machine, and it no longer has its fax machine. There is no Q file to explain
exactly what was sent to Community Vocational Schools. To compound the issue, Caroline
Abraham, who was responsible for sending the fax as part of a fax advertisement campaign,
testified that a rendering problem occurred during the Mildon campaign.15
This case is distinguishable from Palm Beach Golf Center-Boca v. John G. Sarris, D.D.S.
due, among other things, to the rendering problem that occurred during the purported Mildon
campaign. Caroline Abraham testified that there was a rendering problem during the Mildon
campaign. Biggerstaff was not able to explain why that problem occurred, but asserts that Caroline
Abraham’s recollection must have been mistaken because the only rendering problem that he was
able to identify was one relating to the Veranda font, which was not used in the Mildon
advertisement. He admitted, however, that he cannot eliminate the possibility that another
rendering problem may have occurred.
Exactly how this lawsuit came to fruition is not explained by the record.
This court could locate no other case involving a rendering problem that interfered with an
The only evidence Biggerstaff suggests that indicates that Mildon’s advertisement was sent
to Community Vocational Schools are the HylaFAX records demonstrating that B2B sent
something to Community Vocational Schools. Intent to send a facsimile advertisement is not the
same thing as actual sending an unsolicited advertisement a/k/a a violative fax. Biggerstaff
identified a PDF file on the B2B hard drive that was created for the purpose of being converted
into a file format that would be sent as part of the Mildon campaign, but there is no further evidence
to show that the campaign successfully sent the faxed advertisement to Community Vocational
Schools. Biggerstaff speculates that the Mildon campaign did occur because in other B2B cases
he found “additional records” that demonstrated that the advertisement in those cases had actually
been sent. (ECF No. 96-3, at p. 42-43.) For example, in other cases, Biggerstaff explains that the
receiving party had the original fax, there was a verification fax, there were telephone-company
records, or other things extrinsic to the records to show that an advertisement was sent. (ECF No.
96-3, at p. 42-43.) In this case, no extrinsic evidence was submitted; yet, Biggerstaff is still willing
to conclude that Mildon’s advertisement was sent. Mere speculation is not evidence. See
Schneider ex Rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003); FED. R. EVID.
702. Said another way, there is insufficient evidence to determine that what was actually sent was
a fax that violated the TCPA or that an unsolicited fax was received. Even considering the facts
in the light most favorable to Community Vocational Schools, Community Vocational Schools
failed to proffer sufficient evidence demonstrating that a Community Vocational Schools’
telephone line was in fact occupied by an advertisement in violation of the TCPA. Accordingly,
this court is constrained to conclude that Community Vocational Schools did not sustain a concrete
Similarly, the issue whether the injury is particularized is somewhat intertwined with the
cause of action. See Barett Computer Servs., Inc. v. PDA, Inc., 884 F.2d 214, 219 (5th Cir. 1989).
Community Vocational Schools’ injury can be said to be particularized if Community Vocational
Schools was affected in a personal and individual way. See Cottrell, 874 F.3d at 167. Although
the parties did not brief this issue, the court concludes that because Community Vocational Schools
cannot show that it was sent or received a TCPA violative fax, Community Vocational Schools
also cannot show that it sustained a particularized injury.
Insufficient Evidence to Establish a Junk Fax Act Claim
Even assuming for the sake of argument that Community Vocational Schools has standing,
to survive a motion for summary judgment the plaintiff must point to specific evidence in the
record sufficient to establish: “(1) the defendant utilized a ‘telephone facsimile machine’ to send
‘one or more faxes;’ (2) that the transmission constituted ‘advertisements’; and (3) that the
defendant sent the transmissions without the recipient’s consent, absent application of one of the
statutory exceptions.” City Select Auto Sales, Inc. v. David/Randall Assocs., Inc., 96 F.Supp.3d
403, 416 (D. N.J. 2015). Here, Community Vocational Schools cannot establish that it was an
unsolicited advertisement sent by B2B on behalf of Mildon that “tied up” Community Vocational
Schools’ telephone line. As previously stated with respect to standing, there is insufficient
evidence to establish that what was sent was an unsolicited advertisement in violation of the TCPA.
There is likewise insufficient evidence for a reasonable jury to determine what was sent; especially
considering Mildon’s unresolved rendering problems, the volume of business B2B engaged in and
Community Vocational Schools’ policy of collecting TCPA violative faxes but not being able to
produce a fax sent by B2B on behalf of Mildon. Under those circumstances, a reasonable jury
could not render a verdict in favor of Community Vocational Schools. To find in plaintiff’s favor,
a jury would have to speculate that an unsolicited advertisement was sent or received by
Community Vocational Schools. Speculation cannot create a material factual dispute. Robertson,
914 F.2d at 382 n.12.
By way of example, one way to show that a violative fax was sent to Community
Vocational Schools on behalf of Mildon would be to produce a document with a fax header either
in the sender’s documents or in the hands of the recipient. There is no such evidence here. Another
way would be through testimony from the recipient that it received such a fax, but perhaps did not
retain the fax. Here, Community Vocational Schools’ representative testified that he did not know
if the fax was received despite Community Vocational Schools having specific procedures to retain
such faxes. Alternatively, the existence of a bitmap file or a Doc Q file might suffice. The court
does not suggest that this is an exhaustive list of what would be required for plaintiff to make out
its case, but provides it by way of example to show the kind of evidence that would be sufficient.
The court must conclude that there is insufficient evidence for a reasonable jury to find that B2B’s
facsimile machine was used on behalf of Mildon to send one or more faxes of an unsolicited
advertisement to Community Vocational Schools’ telephone fax machine or to find that a
transmission constituting an unsolicited advertisement was received by Community Vocational
Schools in violation of the TCPA.
Even considering the facts in the light most favorable to Community Vocational Schools,
Community Vocational Schools does not have standing and, even if it did, a reasonable jury could
not render a verdict in favor of Community Vocational Schools. Accordingly, summary judgment
will be granted in favor of Mildon Bus Lines and against Community Vocational Schools. An
appropriate order will be entered.
February 9, 2018
BY THE COURT:
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
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