STOOPS v. WELLS FARGO BANK, N.A.
Filing
79
MEMORANDUM OPINION & ORDER. Signed by Judge Kim R. Gibson on 6/24/2016. (krh)
Case 3:15-cv-00083-KRG Document 79 Filed 06/24/16 Page 1 of 38
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MELODY STOOPS,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,
Defendant.
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CIVIL ACTION NO. 3:15-83
JUDGE KIM R. GIBSON
MEMORANDUM OPINION AND ORDER
I.
Introduction
This matter comes before the Court upon cross-motions for summary judgment filed by
Defendant Wells Fargo Bank, N.A. (ECF No. 44) and Plaintiff Melody Stoops (ECF No. 56).
These matters have been fully briefed (see ECF Nos. 44, 54, 55, 56, 61, 64, 65, 67, 68, 70, 76, 77)
and are ripe for disposition. For the reasons that follow, Defendant’s motion for summary
judgment will be GRANTED, and Plaintiff’s motion for summary judgment will be DENIED.
II.
Jurisdiction and Venue
The Court has jurisdiction over the instant action pursuant to 28 U.S.C. § 1331. Venue is
proper under 28 U.S.C. § 1391.
III.
Background
The following facts are not in dispute. In June 2014, Plaintiff bought and activated pre-
paid cell phones that were serviced by Tracfone Wireless (“Tracfone”). (ECF Nos. 56-1 ¶ 1; 65-1
¶ 1.) To activate the cell phones, Plaintiff provided Tracfone with the last four digits of each cell
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phone’s serial number and a zip code of her choosing. (ECF Nos. 56-1 ¶ 2; 65-1 ¶ 2.) Plaintiff
selected Florida zip codes, and Tracfone assigned telephone numbers for each cell phone. (ECF
Nos. 56-1 ¶¶ 3-4; 65-1 ¶¶ 3-4.) Despite residing in Pennsylvania, Plaintiff selected locations in
Florida that she knew to be economically depressed “‘because there is a depression in Florida,’”
where “‘people would be usually defaulting on their loans or their credit cards,’” and because it
is the location with which “‘[she] is most familiar.’” (ECF Nos. 44-1 ¶¶ 8-9 (quoting ECF No. 444 at 16); 54-1 ¶¶ 8-9 (quoting ECF No. 54-7 at 35-36).)
Plaintiff has purchased at least thirty-five cell phones and cell phone numbers with
prepaid minutes for the purpose of filing lawsuits under the Telephone Consumer Protection
Act (“TCPA”). (See ECF Nos. 44-1 ¶¶ 3-4, 7; 54-1 ¶¶ 3-4, 7.) Plaintiff added minutes to her cell
phones by buying “airtime cards” for $19.99 so that the cell phones would receive more calls.
(See ECF Nos. 44-1 ¶¶ 10-11; 54-1 ¶¶ 10-11; 56-1 ¶¶ 15-16; 65-1 ¶¶ 15-16.)
She was not
reimbursed for the purchase of the cell phones or for adding minutes to the cell phones. (ECF
Nos. 56-1 ¶ 17; 65-1 ¶ 17.)
After purchasing and charging the cell phones, Plaintiff waited for them to ring and
sometimes answered the calls to identify the caller. (ECF Nos. 44-1 ¶ 12; 54-1 ¶ 12.) Plaintiff
tracks the incoming calls to her cell phones on a call log sheet. (ECF Nos. 44-1 ¶ 13; 54-1 ¶ 13.)
She carries her cell phones with her when she travels so that she can continue to record the
incoming calls. (ECF Nos. 44-1 ¶ 14; 54-1 ¶ 14.) Although Plaintiff occasionally informed the
caller to stop calling, she intended for the calls to continue because she “‘was hopefully going to
ask [her] lawyers to do trebling with knowing and willful’” violations of the TCPA if they did.
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(ECF Nos. 44-1 ¶¶ 15-16 (quoting ECF No. 44-4 at 23); 54-1 ¶¶ 12, 15-16.) Plaintiff has filed at
least eleven TCPA cases in this jurisdiction, although she “[does not] know how many,” and has
sent at least twenty pre-litigation demand letters, although she “[does not] know” how many.
(ECF Nos. 44-1 ¶ 18 (quoting ECF No. 44-4 at 5-6, 33-34); 54-1 ¶ 18.) Plaintiff’s sister, Taisha
Campbell, has also filed TCPA lawsuits of her own. (ECF Nos. 44-1 ¶ 27; 54-1 ¶ 27.)
In 2014, Plaintiff bought two cell phones that were assigned (863) XXX-6128 and (305)
XXX-4589 as telephone numbers. (ECF Nos. 44-1 ¶ 20; 54-1 ¶ 20.) Plaintiff selected these area
codes because she was familiar with the areas and because she believed that the areas were
economically depressed. (ECF Nos. 44-1 ¶ 21; 54-1 ¶ 21.) Defendant had two delinquent
customers in area codes 863 and 305 who had owned the telephone numbers prior to Plaintiff
and consented to receiving auto-dialed calls or calls with a prerecorded voice. (ECF Nos. 44-1 ¶
22; 54-1 ¶ 22.)
On October 21, 2014, Defendant’s agent, Yolanda Watson, spoke with Plaintiff. (ECF
Nos. 56-1 ¶ 6; 65-1 ¶ 6.) On October 23, 2014, Defendant’s agent, Mariam Aziz, spoke to
Plaintiff. (ECF Nos. 56-1 ¶ 7; 65-1 ¶ 7.) Between September 15, 2014, and November 20, 2014,
Defendant initiated seventy-three telephone calls to the telephone number (863) XXX-6128, and
nineteen of these calls resulted in successful communication. (ECF Nos. 56-1 ¶ 9; 65-1 ¶ 9.)
Collectors in Defendant’s home mortgage group dialed the telephone number in an effort to
reach customers with the last name of “Newman.” (ECF Nos. 56-1 ¶ 11; 65-1 ¶ 11.) Between
September 23, 2014, and November 13, 2014, Defendant initiated twelve telephone calls to the
telephone number (305) XXX-4589, and five of these calls resulted in successful communication.
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(ECF Nos. 56-1 ¶ 10; 65-1 ¶ 10.) Defendant’s collectors dialed the telephone number in an effort
to reach customers with the last name of “Pereira.” (ECF Nos. 56-1 ¶ 12; 65-1 ¶ 12.) Plaintiff
did not provide Defendant with either of these telephone numbers and did not inform
Defendant that it could call her at the telephone numbers. (ECF Nos. 56-1 ¶¶ 18-19; 65-1 ¶¶ 1819.) She does not know Defendant’s previous customers who used the telephone numbers.
(ECF Nos. 56-1 ¶ 20; 65-1 ¶ 20.) Defendant placed the calls to (863) XXX-6128 and (305) XXX4589 in an attempt to reach its customers, not Plaintiff. (ECF Nos. 44-1 ¶ 23; 54-1 ¶ 23.)
Plaintiff filed a complaint in the Court of Common Pleas of Cambria County on March 4,
2015. (ECF No. 1-2.) Defendant removed the matter to this Court on March 31, 2015, (see ECF
No. 1), and filed an answer to the complaint (ECF No. 5). Defendant filed a motion for
summary judgment on December 10, 2015, (ECF No. 44), and Plaintiff filed a cross-motion for
summary judgment on January 21, 2016, (ECF No. 56). After the parties fully briefed their
respective motions, the Court held oral argument on May 23, 2016, (ECF No. 78), and this
matter is now ripe for disposition.
IV.
Applicable Law
A grant of summary judgment is appropriate when 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.’” Heffernan v. City of Paterson, 777 F.3d 147, 151 (3d Cir. 2015) (quoting FED. R.
CIV. P. 56(a)). A genuine issue of material fact is one that could affect the outcome of litigation.
Mahoney v. McDonnell, 616 Fed. Appx. 500, 504 (3d Cir. 2015) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986)). However, “‘[w]here the record taken as a whole could not lead a
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rational trier of fact to find for the non-moving party, there is no genuine issue for trial.’” Id.
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The initial burden is on the moving party to adduce evidence illustrating a lack of
genuine issues. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once the moving
party satisfies its burden, the non-moving party must present sufficient evidence of a genuine
issue, in rebuttal. Id. (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). When considering the
parties’ arguments, the Court is required to view all facts and draw all inferences in the light
most favorable to the non-moving party. Id. (citing Armbruster v. Unisys Corp., 32 F.3d 768, 777
(3d Cir. 1994)). Further, the benefit of the doubt will be given to allegations of the non-moving
party when in conflict with the moving party’s claims. Bialko v. Quaker Oats Co., 434 Fed. Appx.
139, 141 n.4 (3d Cir. 2011) (citing Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir. 1995)).
Nonetheless, a well-supported motion for summary judgment will not be defeated
where the non-moving party merely reasserts factual allegations contained in the pleadings. Id.
(citing Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)). The non-moving
party must resort to affidavits, depositions, admissions, and/or interrogatories to demonstrate
the existence of a genuine issue. Connection Training Servs. v. City of Philadelphia, 358 Fed. Appx.
315, 318 (3d Cir. 2009) (citing Celotex Corp., 477 U.S. at 324).
V.
Discussion
A.
Defendant’s Motion for Summary Judgment
Defendant makes four arguments in support of its motion for summary judgment. First,
Defendant argues that it did not “make any call” to Plaintiff because she manufactured the calls.
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(ECF No. 44 at 12-14.) Second, Defendant contends that Plaintiff consented to receive the calls.
(Id. at 14-17.)
Third, Defendant asserts that Plaintiff’s claim is barred by the doctrine of
assumption of the risk. (Id. at 17-20.) Finally, Defendant contends that Plaintiff lacks Article III
standing to assert her claim because she is not a member of the class that the TCPA was
designed to protect and did not suffer the type of harm that the TCPA was designed to prevent.
(Id. at 20-25.) The Court will separately address each of Defendant’s arguments.
1.
Defendant’s Argument that It Did Not “Make Any Calls”
Defendant argues that summary judgment must be granted in its favor because Plaintiff
manufactured the TCPA claim for which she has filed suit.
(Id. at 12-14.)
Specifically,
Defendant states that the TCPA makes it unlawful “‘to make any call’” to a cell phone using an
automatic telephone dialing system (“ATDS”). (Id. at 12 (quoting 47 U.S.C. § 227(b)(1)(A)).)
Because Plaintiff “caused the calls to happen,” “invited them,” and “willed them into
existence,” Defendant asserts that she intentionally “made” the calls at issue. (Id. at 12-14.)
In response, Plaintiff asserts that Defendant has stipulated that it “initiated/made” the
telephone calls to cell phone numbers (863) XXX-6128 and (305) XXX-4589. (ECF No. 54 at 15.)
Plaintiff further argues that she did not “make” the calls because she “made no ‘affirmative
choice’ that caused [Defendant] to call her number.” (Id. at 16.) Specifically, Plaintiff states that
her actions did not “effectively program” a dialer, “upload data” to Defendant, or “make” any
calls. (Id. at 16-17.) Rather, Defendant called the cell phone numbers “without any influence,
inducement, or any prior contact whatsoever from Plaintiff.” (Id. at 17.) In reply, Defendant
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reiterates that Plaintiff “caused the calls to exist for TCPA purposes” because she took “crucial
steps” to incite the phone calls. (ECF No. 61 at 12.)
In a joint stipulation of facts, filed by the parties on November 24, 2015, Defendant
“agree[d] and stipulate[d] that all of the telephone calls [it] initiated/made to cell phone
numbers (305) XXX-4589 and (863) XXX-6128 . . . were made with an [ATDS] as defined under
the [TCPA].” (ECF No. 44-9 ¶ 1.) In an attempt to explain away its stipulation, Defendant
claims that it has only admitted that “calls existed” and that “[t]he fact that the calls were placed
does not answer the question of who ‘made’ the calls.” (ECF No. 61 at 12.) Defendant further
asserts that “[t]he point of that stipulation was to alleviate the need for discovery on the use of
regulated technology; it was not intended to — and did not on its face — stipulate away the
foundational issue that Plaintiff ‘made’ the calls in the first place.” (Id.)
The TCPA makes it unlawful “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 [ATDS] or an
artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone
service[.]” 47 U.S.C. § 227(b)(1)(A)(iii). Defendant stipulated that it “initiated/made” telephone
calls to cell phone numbers (305) XXX-4589 and (863) XXX-6128. (ECF No. 44-9 ¶ 1.) As
Defendant acknowledged during oral argument on May 23, 2016, no court has addressed the
difference between “initiate” and “make.” Moreover, Defendant concedes that the cases to
which it cited in support of its argument that Plaintiff “made” the calls “are not a perfect fit”
because they involve third parties inciting phone calls. (ECF No. 61 at 12.) Indeed, the legal
authority to which Defendant has cited — McKenna v. WhisperText, No. 5:14-CV-424, 2015 U.S.
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Dist. LEXIS 120090 (N.D. Cal. Sept. 9, 2015), and Huricks v. Shopkick, Inc., No. C-14-2464, 2015
U.S. Dist. LEXIS 112596 (N.D. Cal. Aug. 24, 2015) — is factually inapplicable to the instant
matter and is not binding upon the Court. (See ECF No. 44 at 13.) In McKenna, the court
concluded that the defendant was not the maker or initiator of calls using an ATDS because the
application “sends text invitations only at the user’s affirmative direction.” 2015 U.S. Dist.
LEXIS 120090, at *9, 14. Similarly, in Huricks, the court found that the defendant had not
violated the TCPA because the user was required to take affirmative steps to cause the
invitational text messages to be sent. 2015 U.S. Dist. LEXIS 112596, at *10-11. The cases to
which Defendant cites from the July 10, 2015, declaratory ruling and order of the Federal
Communications Commission (“FCC”) also relate to users making “affirmative choices,” such
as inviting friends to install an application and programming a cloud-based dialer, before
receiving calls. See In re Rules Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961,
7986, 7982-84 (F.C.C. July 10, 2015). Here, Plaintiff did not make an “affirmative” choice to
cause Defendant to call the telephone numbers by tapping buttons or by uploading data. See
McKenna, 2015 U.S. Dist. LEXIS 120090, at *14-15.
Accordingly, having concluded that
Defendant’s argument that Plaintiff “made” the calls is not persuasive, the Court cannot grant
Defendant’s motion for summary judgment on this basis.
2.
Defendant’s Argument that Plaintiff Consented to Receive the Calls
Defendant argues that Plaintiff consented to receiving the calls because she
“gratuitously created circumstances that would support a legal claim.” (ECF No. 44 at 14
(internal quotations omitted).)
Specifically, Defendant asserts that Plaintiff intentionally
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solicited the harm from which she claims to suffer. (Id. at 16.) Defendant also argues that
Plaintiff expressly consented to receiving the calls because she testified that she was “‘okay
with’” her cell phones ringing from calls from creditors. (Id. at 17 (quoting ECF No. 44-4 at 25).)
In response, Plaintiff asserts that Defendant has failed to demonstrate that it obtained
her consent before placing the calls. (ECF No. 54 at 17-18.) Plaintiff notes that Defendant was
attempting to reach its customers, not her, when it placed the calls. (Id. at 18.) She further states
that Defendant had constructive knowledge that the telephone numbers of its customers had
been reassigned. (Id.) In reply, Defendant argues that Plaintiff’s affirmative conduct was
“designed to create the calls” and therefore constitutes her express consent. (ECF No. 61 at 14.)
In her sur-reply, Plaintiff contends that Defendant has failed to establish that she released her
number to it or had any contact with it prior to Defendant’s placement of the calls. (ECF No. 64
at 4.)
It is well settled that when a defendant invokes the affirmative defense of express
consent, the defendant “bears the burden of establishing that [it] applies.” Daubert v. NRA
Group, LLC, No. 3:15-CV-718, 2016 U.S. Dist. LEXIS 69630, at *51 (M.D. Pa. May 27, 2016). “The
FCC has ‘conclude[d] that the creditor should be responsible for demonstrating that the
consumer provided express consent’ because the creditor is ‘in the best position to have records
kept in the usual course of business showing such consent, such as purchase agreements, sales
slips, and credit applications.’” Id. (quoting In re Rules Implementing the Tel. Consumer Prot. Act
of 1991, 23 FCC Rcd. 559, 565 (F.C.C. Jan. 4, 2008)).
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Defendant has failed to meet its burden of establishing that Plaintiff expressly consented
to receiving the calls. “Prior express consent is deemed to be granted only if the wireless
number is provided by the consumer to the creditor, and the number was provided during the
transaction that resulted in the debt owed.” Wattie-Bey v. Stephen & Michaels Assocs., No. 1:13CV-396, 2014 U.S. Dist. LEXIS 4463, at *7 (M.D. Pa. Jan. 14, 2014) (denying the plaintiff’s motion
for summary judgment because there was evidence that he provided the number when
applying for a T-Mobile account and therefore consented to contact about any debt in
connection with that account). Because Defendant has not produced any evidence that Plaintiff
provided the cell phone numbers to it, the Court cannot conclude that she expressly consented
to receiving the calls. See, e.g., Stuart v. AR Res., Inc., No. 10-CV-3520, 2011 U.S. Dist. LEXIS
27025, at *18 (E.D. Pa. Mar. 15, 2011) (permitting the plaintiff’s TCPA claim to proceed because
she maintained that she was not the debtor and therefore did not consent to receiving the calls).
While the Court recognizes that the facts presented in this matter are unique, the cases
upon which Defendant relies in support of its argument that Plaintiff consented to receiving the
calls — Beyond Systems, Inc. v. Kraft Foods, Inc., 777 F.3d 712 (4th Cir. 2015), and Ryabyshchuck v.
Citibank N.A., No. 11-CV-1236, 2012 U.S. Dist. LEXIS 156176 (S.D. Cal. Oct. 30, 2012) — are
inapposite. First, the Fourth Circuit Court of Appeals in Beyond Systems, Inc. concluded that the
plaintiff consented to the harm at issue because it: (1) created fake e-mail addresses, solely for
the purpose of gathering spam; (2) embedded the addresses in websites so that they were
undiscoverable except to computer programs; (3) increased its e-mail storage capacity; and (4)
intentionally routed spam e-mails between California and Maryland to increase its exposure to
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spam. 777 F.3d at 718. Similarly, Ryabyshchuck is distinguishable because the plaintiff received
one inactionable text message, responded with a one-word, opt-out request, and received a
response confirming receipt of the opt-out request.
2012 U.S. Dist. LEXIS 156176, at *7.
Although Defendant has correctly stated that consent “is nothing more than ‘a willingness in
fact for conduct to occur,’” (ECF No. 61 at 13 (quoting Gager v. Dell Fin. Servs., LLC, 727 F.3d 265,
271 (3d Cir. 2013)), it has failed to establish that Plaintiff expressly consented to receiving the
calls. See, e.g., Stuart, 2011 U.S. Dist. LEXIS 27025, at *18; see also Daubert, 2016 U.S. Dist. LEXIS
69630, at *56 (explaining that although “express consent can be found even where the plaintiff
did not directly provide consent to the defendant . . . it must be shown that the plaintiff had
given express consent to someone at some point” and concluding that the defendant “has failed
to adduce sufficient evidence to establish this”); Paradise v. Commonwealth Fin. Sys., No. 3:13-CV01, 2014 U.S. Dist. LEXIS 132814, at *6 (M.D. Pa. Sept. 22, 2014) (rejecting the defendant’s
argument that the plaintiff consented to receiving the calls because it had previously obtained
consent from the debtor it was attempting to contact). Accordingly, having concluded that
Defendant has failed to satisfy its burden to demonstrate that Plaintiff consented to receiving
the calls, the Court cannot grant Defendant’s motion for summary judgment on this basis.
3.
Defendant’s Argument that Plaintiff’s Claim is Barred by the Doctrines
of Assumption of the Risk and Volenti non fit Injuria
Defendant argues that the doctrine of assumption of the risk applies to actions filed
under the TCPA because Pennsylvania law applies the doctrine to strict liability statutes and to
negligence claims. (ECF No. 44 at 18-19.) Defendant contends that the doctrine is applicable to
Plaintiff’s action because she testified that she assumed the risk of receiving calls to her cell
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phones and because Plaintiff bought the cell phones to receive calls from creditors. (Id. at 19.)
Defendant further asserts that Plaintiff’s claim is barred by the principle of volenti non fit injuria
because she consented to the harm from which she allegedly suffered. (Id. at 15-16.)
In response, Plaintiff argues that the doctrine of assumption of the risk is inapplicable
because federal substantive law, rather than Pennsylvania law, applies to the TCPA. (ECF No.
54 at 19-21, 24-26.) Plaintiff also asserts that the principle of volenti non fit injuria is inapplicable
because she “[has] not done anything deceptive or conducted falsity.” (Id. at 22.)
In reply, Defendant argues that common law applies to federal statutes. (ECF No. 61 at
15-16.) In support of its argument, Defendant notes that other common law doctrines, such as
the revocation of consent and vicarious liability, have been applied to the TCPA. (Id. at 17-19.)
Because the doctrines of assumption of the risk and volenti non fit injuria are well settled and
because the TCPA does not directly abrogate the doctrines, Defendant contends that they are
both applicable. (Id. at 19-22.) Defendant requests that summary judgment be granted in its
favor because it has presented uncontested evidence that “Plaintiff invited her own harm” and
sought out “a known or obvious danger” by intentionally purchasing the cell phones. (Id. at 2223 (internal quotations omitted).) In her sur-reply, Plaintiff argues that her intent is irrelevant
because bad-faith defenses are inapplicable to the TCPA. (ECF No. 64 at 4-5, 7-9.) She also
asserts that the doctrines of assumption of the risk and volenti non fit injuria do not apply
because Defendant’s calls were not a known or obvious danger when she purchased the cell
phones. (Id. at 6-7.)
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Initially, the Court finds that the affirmative defenses of assumption of the risk and
volenti non fit injuria do not apply to the TCPA. Defendant is correct that courts have applied
common law principles to the TCPA. See, e.g., Gager, 727 F.3d at 270 (finding that the common
law principle of revocation applied because “[a]lthough the TCPA does not expressly grant a
right of revocation to consumers who no longer wish to be contacted on their cellular phones by
autodialing systems, the absence of an express statutory grant of this right does not mean that
the right to revoke does not exist”); Thomas v. Taco Bell Corp., 879 F. Supp. 2d 1079, 1084 (C.D.
Cal. 2012) (holding that the common law principle of vicarious liability applied to the TCPA
because “[a]bsent a clear expression of Congressional intent to apply another standard, the
Court must presume that Congress intended to apply the traditional standards of vicarious
liability with which it is presumed to be familiar”).
However, courts have not yet addressed whether the common law affirmative defenses
of assumption of the risk and volenti non fit injuria apply to the TCPA. The Court will therefore
follow the FCC’s July 10, 2015, rules and regulations implementing the TCPA. See Morse v.
Allied Interstate, LLC, No. 3:13-CV-625, 2014 U.S. Dist. LEXIS 171178, at *13 (M.D. Pa. 2014)
(holding that a district court may not disregard the FCC’s final orders “simply because
Congress did not specifically grant the FCC express authority to regulate a specific subsection
of the TCPA”). See also Leyse v. Clear Channel Broad., Inc., 545 F. App’x 444, 453 (6th Cir. 2013)
(“In sum, the [TCPA] is replete with evidence that Congress intended the FCC to promulgate
rules carrying the force of law that determine what kinds of prerecorded calls are permissible
and what kinds are not.”); Sook v. Nielsen Co., LLC, No. 8:15-CV-264, 2015 U.S. Dist. LEXIS 76362,
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at *3 (M.D. Fla. June 12, 2015) (declining to determine “whether there is an affirmative, bad-faith
defense that vitiates TCPA where the plaintiff acts (or fails to act) unreasonably or
intentionally” and staying the case pending the FCC’s rules and regulations); Balschmiter v. TD
Auto Fin. LLC, 303 F.R.D. 508, 512 n.4 (E.D. Wis. 2014) (“The Court is bound by all of the FCC’s
final orders relating to the TCPA.”).
In its July 10, 2015, rules and regulations implementing the TCPA, the FCC addressed
Rubio’s Restaurant, Inc.’s argument that the FCC “should add an affirmative, bad-faith defense
that vitiates liability upon a showing that the called party purposefully and unreasonably
waited to notify the calling[]party of the reassignment in order [to] accrue statutory penalties.”
In re Rules Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. at 8011 (internal
quotations omitted).
The FCC rejected Rubio’s Restaurant, Inc.’s request, explaining that
“[n]either the TCPA nor our related rules place any affirmative obligation on the user of a
wireless number to inform all potential callers when that number is relinquished or reassigned”
and that “uninvolved new users of reassigned numbers are not obligated under the TCPA or
our rules to answer every call, nor are they required to contact each caller to opt out in order to
stop further calls.” Id.; see also id. at 8091 (“In fact, the order expressly rejects a bad faith defense
against call and text message recipients that intentionally deceive the caller or sender in order to
induce more liability.”) (O’Rielly, M., dissenting in part and approving in part). Thus, in
accordance with the FCC’s rules and regulations implementing the TCPA, the Court cannot
conclude that the common law affirmative defenses of assumption of the risk and volenti non fit
injuria are applicable to the TCPA.
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Even if, assuming arguendo, the common law affirmative defenses of assumption of the
risk and volenti non fit injuria applied to the TCPA, Defendant would still not be entitled to
summary judgment. Assumption of the risk is an affirmative defense under the Restatement
(Second) of Torts. Reott v. Asia Trend, Inc., 55 A.3d 1088, 1095 (Pa. 2012). It is only relevant
“‘where there would otherwise be a breach of some duty owed by the defendant to the plaintiff.
It is then a defense, which relieves the defendant of the liability to which he would otherwise be
subject.
The burden of proof is therefore upon the defendant.’”
Id. at 1096 (quoting
RESTATEMENT (SECOND) OF TORTS § 496G cmt. c). To meet the burden of proof, “the defendant
must produce evidence that the plaintiff fully understood the specific risk, and yet voluntarily
chose to encounter it.” Childers v. Power Line Equip. Rentals, 681 A.2d 201, 208 (Pa. Super. Ct.
1996) (internal quotations omitted). “Voluntary assumption of the risk involves a subjective
awareness of the risk inherent in an activity and a willingness to accept it. A plaintiff has
voluntarily assumed the risk where he fully understands it and voluntarily chooses to
encounter it.” Id. (internal quotations omitted).
In support of its argument that Plaintiff assumed the risk of receiving calls, Defendant
cites to Plaintiff’s deposition testimony wherein she responded affirmatively to the question,
“So are you -- you're assuming the risk that these phones will ring. Is that correct?” (ECF No.
44 at 19 (citing ECF No. 44-4 at 25).) Defendant asserts that it should be granted summary
judgment “on this admission alone.” (Id.) However, Plaintiff’s counsel objected to Defendant’s
question as a legal conclusion.
(ECF No. 44-4 at 25.)
The Court cannot grant summary
judgment to Defendant on the basis of a question that elicited a legal conclusion. See, e.g.,
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Cordance Corp. v. Amazon, 631 F. Supp. 2d 477, 483-84 (D. Del. 2009) (explaining that
“conclusions on what [the plaintiff] asserts as legal principles are not within [the witness’s]
particularized knowledge he has by virtue of his position in the Internet technology industry”);
Borough of Lansdale v. PP&L, Inc., 426 F. Supp. 2d 264, 306 (E.D. Pa. 2006) (finding that the
witness’s answers in a deposition were “unsubstantiated legal conclusions [that] are not
sufficiently probative to enable the plaintiffs to defeat summary judgment”).
Moreover, it is well settled that “[a]ssumption of the risk requires a factual analysis of
the plaintiff’s subjective understanding of the risks involved.” McKenzie v. Dematic Corp., No.
3:12-CV-250, 2015 U.S. Dist. LEXIS 81166, at *9 (W.D. Pa. June 18, 2015). Therefore, “[t]he
question of assumption of the risk typically remains for the jury, and it is only where the
evidence reveals a scenario so clear as to void all questions of material fact concerning the
plaintiff’s own conduct that the court can enter summary judgment.” Id. Defendant’s argument
that “[t]he sole purpose of purchasing so many phones with recycled phone numbers was to
receive as many calls from creditors as possible and bring TCPA lawsuits” is insufficient. (ECF
No. 44 at 19.) Defendant has therefore failed to meet its burden of proof required to establish its
affirmative defense of assumption of the risk.
Similarly, Defendant has failed to meet its burden of proof required to establish its
affirmative defense of volenti non fit injuria. The affirmative defense of volenti non fit injuria
means “he who consents cannot receive an injury.” Schelin v. Goldberg, 146 A.2d 648, 651 (Pa.
Super. Ct. 1958); see also Smith v. Piper Aircraft Corp., 18 F.R.D. 169, 178 (M.D. Pa. 1955)
(explaining that the affirmative defense of volenti non fit injuria is applicable when “in a legal
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sense, [the plaintiff] consented to the injuries suffered”) (internal quotations omitted). Thus,
“[b]efore the maxim, volenti non fit injuria, can be invoked, it must be shown that the plaintiff
not only knew, or had full opportunity to know, the circumstances, but that he appreciated, or
should have appreciated, the extent of the danger, and that he voluntarily exposed himself to
it.” Madden v. Lehigh Valley R.R. Co., 84 A. 672, 673 (Pa. 1912). As discussed in detail above,
Defendant has failed to satisfy its burden to demonstrate that Plaintiff consented to receiving
the calls. See supra Part V.A.2. Accordingly, even if the common law affirmative defenses of
assumption of the risk and volenti non fit injuria applied to the TCPA, Defendant would still not
be entitled to summary judgment.
4.
Defendant’s Argument that Plaintiff Lacks Standing
Defendant argues that Plaintiff lacks standing because she is not a member of the class
of persons that the TCPA was designed to protect and because she did not suffer the type of
harm that the TCPA was designed to prevent. (ECF No. 44 at 20.) Specifically, Defendant
asserts that the TCPA was enacted to protect consumers from unwanted, intrusive telephone
calls. (Id. at 21-22.) Because Plaintiff’s only use of her cell phones is to receive calls from
creditors “to turn a profit,” Defendant argues that she waived the privacy interests that the
TCPA protects. (Id. at 22-24.) Defendant further contends that Plaintiff cannot establish an
injury-in-fact because “[h]er entire purported injury is premised upon a bare statutory violation
for which she seeks statutory damages.” (Id. at 24.)
In response, Plaintiff argues that Congress “has empowered individuals and entities to
act as private attorneys general to pursue claims for well defined statutory damages.” (ECF No.
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54 at 27 (internal quotations omitted).) She therefore asserts that “[i]t does not matter whether a
plaintiff actively seeks out opportunities to bring TCPA claims or is motivated by the significant
damage awards available under the TCPA.” (Id. at 28.) Plaintiff contends that she suffered an
injury-in-fact because she bought the cell phones and added minutes to them. (Id. at 29.)
In its reply, Defendant argues that Plaintiff does not have prudential standing because
she is not within the zone of interest that is protected by the TCPA. (ECF No. 61 at 27.)
Specifically, Defendant asserts that the zone of interest protected by the TCPA is personal
privacy. (Id. at 28.) Because Plaintiff “collect[ed] a shoe box full of cell phones to fish for
accidental wrong number calls,” Defendant contends that her personal privacy was not
invaded. (Id.) Defendant further argues that Plaintiff lacks Article III standing because she has
not suffered an injury-in-fact. (Id. at 29-30.) In her sur-reply, Plaintiff claims that she is within
the zone of interest that is protected by the TCPA because she “has an irrefutable interest in her
own privacy.” (ECF No. 64 at 10.) She further argues that she did not cause her own harm
because she did not cause Defendant to make the phone calls. (Id.) She asserts that she has
suffered an injury-in-fact because minutes were deducted from her cell phones as a result of
Defendant’s calls. (Id. at 11.)
There are three types of standing: statutory, constitutional, and prudential. “Statutory
standing is simply statutory interpretation:
the question it asks is whether Congress has
accorded this injured plaintiff the right to sue the defendant to redress his injury.” Graden v.
Conexant Sys. Inc., 496 F.3d 291, 295 (3d Cir. 2007) (emphasis in original). “Constitutional and
prudential standing are about, respectively, the constitutional power of a federal court to
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resolve a dispute and the wisdom of so doing.” Id. The parties do not dispute that Plaintiff has
statutory standing under the TCPA. (See ECF No. 61 at 27.) The Court will separately address
constitutional and prudential standing.
a.
Constitutional Standing
Under Article III, constitutional standing requires a plaintiff to show that: (1) he or she
suffered an injury-in-fact, that is “concrete and particularized” and “actual or imminent,” and
not merely “conjectural or hypothetical;” (2) the defendant’s complained of conduct caused that
injury; and (3) it is likely, “as opposed to merely speculative,” that a favorable decision by the
court will redress the injury. Winer Family Trust v. Queen, 503 F.3d 319, 325 (3d Cir. 2007) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The plaintiff bears the burden of
establishing constitutional standing. Id.
The Supreme Court recently explained that “[f]or an injury to be particularized, it must
affect the plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548
(2016) (internal quotations omitted). The injury-in-fact must also be “concrete,” which means
“real” and “not abstract.” Id. at 1556. However, “concrete” is not necessarily synonymous with
“tangible.” Id. “[B]ecause Congress is well positioned to identify intangible harms that meet
minimum Article III requirements, its judgment is also instructive and important.” Id. at 1555.
The Supreme Court emphasized 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
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sue to vindicate that right.” Id. at 1549. Thus, the Supreme Court made clear that “Article III
standing requires a concrete injury even in the context of a statutory violation.” Id.
To have standing to pursue her TCPA claim, Plaintiff must allege that Defendant
violated her “legally protected interest.”
Lujan, 504 U.S. at 560.
Plaintiff contends that
Defendant violated her privacy interests when she received the calls and that Defendant
violated her economic interests because she purchased airtime minutes for her cell phones. To
address Plaintiff’s argument that her privacy interests were invaded, the Court must first
examine the purpose of the TCPA.
Congress enacted the TCPA to protect consumers from “the proliferation of intrusive,
nuisance [telemarketing] calls to their homes.” Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 745
(2012) (internal quotations omitted). Although most states had enacted legislation restricting
telemarketing, members of Congress believed that federal law was necessary because
telemarketers could evade state law through interstate operations. See id. The TCPA therefore
prohibits “any person within the United States, or any person outside the United States if the
recipient is within the United States,” from using prerecorded messages to call residential
phone lines without prior consent, “unless the call . . . is exempted by rule or order by the
Commission under paragraph 2(B).” 47 U.S.C. § 227(b)(1)(B). Paragraph 2(B) provides that the
FCC may exempt noncommercial calls, see id. § 227(b)(2)(B)(i), and commercial calls if they “will
not adversely affect the privacy rights that this section is intended to protect” and “do not
include the transmission of any unsolicited advertisement,” see id. § 227(b)(2)(B)(ii)(I)-(II).
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In enacting the TCPA, Congress’s intent “was to protect consumers from the nuisance,
invasion of privacy, cost, and inconvenience that autodialed and prerecorded calls generate.” In
re Rules Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. at 7979-80. Specifically,
“Congress found that consumers consider these kinds of calls, regardless of the content or the
initiator of the message, to be a nuisance and an invasion of privacy.” Id. at 7980 (internal
quotations omitted). Congress therefore concluded that “banning such calls, except when made
for an emergency purpose or when the called party consents to receiving the call, is the only
effective means of protecting telephone consumers from this nuisance and privacy invasion.”
Id. (internal quotations omitted). Senator Fritz Hollings, the sponsor of the TCPA, stated that
“[c]omputerized calls are the scourge of modern civilization. They wake us up in the morning;
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.” Mims, 132 S. Ct. at 752.
Initially, the Court notes that several district courts, including district courts within the
Third Circuit Court of Appeals, have held that a plaintiff demonstrates a violation of privacy
interests, and therefore an injury-in-fact, after receiving automated calls. See, e.g., Schumacher v.
Credit Prot. Ass’n, No. 4:13-CV-164, 2015 U.S. Dist. LEXIS 132752, at *15 (S.D. Ind. Sept. 30, 2015)
(holding that the plaintiff had constitutional standing because he received over fifty calls over
three months from an automated caller); Ikuseghan v. Multicare Health Sys., No. 14-CV-5539, 2015
U.S. Dist. LEXIS 99175, at *5-6 (W.D. Wash. July 29, 2015) (holding that the plaintiff had
standing because the defendant violated her privacy by making unsolicited, automated calls to
her cell phone); De Los Santos v. Millward Brown, Inc., No. 13-CV-80670, 2014 U.S. Dist. LEXIS
21
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88711, at *8 (S.D. Fla. June 29, 2014) (“[B]ecause Defendant has invaded Plaintiff’s legally
protected interest in being free from autodialed calls, Plaintiff has standing to sue.”); Martin v.
Leading Edge Recovery Solutions, LLC, No. 11-CV-5886, 2012 U.S. Dist. LEXIS 112795, at *10 (N.D.
Ill. Aug. 10, 2012) (concluding that the plaintiffs’ privacy interests were violated because “they
were forced to tend to unwanted calls”); Anderson v. AFNI, Inc., No. 10-CV-4064, 2011 U.S. Dist.
LEXIS 51368, at *16 (E.D. Pa. May 11, 2011) (finding that the plaintiff demonstrated an injury-infact because she received nearly fifty calls over eight months from an automated caller). As the
parties recognize, however, the facts of the instant case have not arisen in other TCPA actions
because Plaintiff has admitted that she files TCPA actions as a business. At her deposition,
Plaintiff testified as follows:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
[W]hat prompted you to bring this lawsuit?
Wells Fargo was calling me a phone -- on a phone.
Okay. Did anyone suggest to you to bring this lawsuit?
Suggest to bring a lawsuit? Yes.
Who?
Randy Miller.
Who is Randy Miller?
My best friend from Lincoln, Nebraska.
Okay. Any why did Randy Miller suggest that?
Well, he was the first to mention the possibility of me doing TCPA
violations as a business.
Okay. So are you bringing these lawsuits as a business?
Yes, I am.
(ECF No. 44-4 at 4-5.) When questioned about the number of lawsuits she has filed, Plaintiff
testified:
Q.
A.
Q.
A.
Have you -- you’ve filed other TCPA lawsuits, correct?
Yes, ma’am.
How many?
Approximately, nine, I believe. I don’t know how many.
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Q.
A.
Q.
A.
Q.
A.
Against whom?
Comenity, Credit One, Navient, Wells Fargo.
Why did you file so many lawsuits?
Because I’m allowed to.
What do you mean by you’re allowed to?
They’re calling my number as a wrong party, and I’ve told people that -I’ve told them not to call and they continue to call.
(Id. at 5.) When questioned about her cell phones, Plaintiff testified:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
More than 40 cell phone numbers? Getting up there.
Yes. Yes. Yes. Can I tell you how they fit when I brought them here?
Sure.
They fit in a shoebox.
Okay.
Does that give you a . . .
Not really.
Okay.
I don’t know how big they are. Okay.
So at the point of 40 would you say that you can’t estimate? Do you have
more then 40 cell phone numbers or you cannot say?
I don’t know.
You don’t know. Okay. But you have more than 35?
I do.
And you don’t know if you have more than 40?
I don’t. I’m sorry.
Okay.
I don’t count them. I haven’t counted them.
(Id. at 12-13.) In discussing her business, Plaintiff testified:
Q.
A.
Q.
A.
Q.
A.
Why do you have so many cell phone numbers?
I have a business suing offenders of the TCPA business -- or laws.
And when you say business, what do you mean by business?
It’s my business. It’s what I do.
So you’re specifically buying these cell phones in order to manufacture a
TCPA? In order to bring a TCPA lawsuit?
Yeah.
(Id. at 13-14.) Plaintiff also described the process of activating her cell phones:
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Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
When you purchase these phones, walk me through the process of how
these cell phones get activated?
I use my cell phone and I dial the number, and they ask me what ZIP
code I want to put it in, and they also ask me the serial number.
Okay. And so you -- do you select the ZIP code?
Yes, I do.
And what ZIP code did you select or do you select?
Normally, Florida number -- Florida ZIP codes.
And why is that?
Because there’s a depression in Florida.
Okay. So you’re -- what do you mean by there’s a depression in Florida?
Why are you selecting a Florida number?
I knew that people had hardships in Florida, that they would be usually
defaulting on their loans or their credit cards.
(Id. at 15-16.) When questioned about her TCPA lawsuits, Plaintiff testified:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
So is there another purpose that you use these cell phones for other than -No.
-- to -- no.
So the purpose is to bring a TCPA lawsuit?
Correct.
Does anyone you know ever call you at these phone numbers?
No, ma’am.
Did you ever use any of these phone numbers to call anyone?
No, ma’am.
*
*
*
How did you use this phone number after it was activated, if at all?
For my business.
Okay. When you say for your business, what do you mean?
Suing clients like yours, Wells Fargo, for violating the TCPA.
Okay. So would you keep -- you mentioned a shoe box. Would you just
keep the phone in a shoe box?
No. No. No. No. You have to -- you have to plug them in to keep them
active, batteries active.
Okay. And then what would you do with these phones? Would you
wait for them to ring?
Yes.
Okay. And then when they ring, what would you do?
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A.
Q.
A.
I would -- different -- different ways. I would initially pick it up to see
who it was and document that or I would -- if I had already told them not
to call, I would just document it on a log that you’ve -- I believe you have.
Did you -- was it your practice to pick up each of the phones when they
rang the first time?
I would try to, yes.
(Id. at 16-17, 20-21.) When questioned regarding whether she requested that the callers stop
calling, Plaintiff testified:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Did you also indicate to those callers to stop calling?
Yes. Some of the times. Not all of the times. I would have to look at my
logs.
Okay. And when you picked up the phone -- do you know if you picked
up the phone ever with regard to Wells Fargo?
Yes.
And do you know if you spoke with someone?
Yes.
*
*
*
If it was your intention for calls to continue, because as you’ve indicated
you believe this is a business to bring a TCPA lawsuit, why would you
tell the caller to stop calling?
I was hopefully going to ask my lawyers to do trebling with knowing and
willful.
Can you explain to me what that means?
From my understanding is if a debt collector or a telemarketer continues
to call and they knowingly and willingly continue to do it, it can be a fine
of trebling.
(Id. at 22-24.)
As her testimony establishes, Plaintiff’s privacy interests were not violated when she
received calls from Defendant. Indeed, Defendant’s calls “[did] not adversely affect the privacy
rights that [the TCPA] is intended to protect.” 47 U.S.C. § 227(b)(2)(B)(ii)(I)-(II). Because
Plaintiff has admitted that her only purpose in using her cell phones is to file TCPA lawsuits,
the calls are not “a nuisance and an invasion of privacy.” In re Rules Implementing the Tel.
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Consumer Prot. Act of 1991, 30 FCC Rcd. at 7980. Thus, Plaintiff was not required to “tend to
unwanted calls,” Martin, 2012 U.S. Dist. LEXIS 112795, at *10, and the calls did not constitute
“the nuisance, invasion of privacy, cost, and inconvenience” from which Congress intended to
protect consumers, In re Rules Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. at
7979-80. The Court therefore must reject Plaintiff’s argument that she suffered an injury-in-fact
because her privacy interests were violated.
Regarding Plaintiff’s argument that she suffered an injury-in-fact because her economic
interests were violated, Defendant asserts that Plaintiff has not suffered an injury-in-fact
because “Plaintiff does not allege or seek any actual damages in this case.” (ECF No. 44 at 23.)
The Court initially notes that “an injury-in-fact may be satisfied by the invasion of a legal right
that Congress created even in the absence of monetary damages.” Schumacher, 2015 U.S. Dist.
LEXIS 132752, at *14, 16 n.4 (rejecting the defendant’s argument that the plaintiff did not have
standing because he did not seek actual damages); see also Martin, 2012 U.S. Dist. LEXIS 112795,
at *14 (“Plaintiffs need not allege monetary loss in order to bring suit for violations of the
TCPA.”). Additionally, several courts have held that a plaintiff demonstrates a violation of
economic interests, and therefore an injury-in-fact, after suffering monetary loss. See, e.g.,
Ikuseghan, 2015 U.S. Dist. LEXIS 99175, at *5 (explaining that “[e]conomic injury is a sufficient
basis for Article III standing” and holding that the plaintiff suffered an economic injury because
calls were charged against the cell phone minutes she purchased); Martin, 2012 U.S. Dist. LEXIS
112795, at *11 (finding that the plaintiffs “were directly injured by defendants’ violations of the
TCPA because they had to spend time tending to unwanted calls and their cell phone minutes
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were depleted”); Torres v. Nat’l Enter. Sys., No. 12-CV-2267, 2012 U.S. Dist. LEXIS 110514, at *5-6
(N.D. Ill. Aug. 7, 2012) (concluding that the plaintiff suffered a “monetary harm” because the
calls “used up [her] cellular phone minutes”). However, as discussed above and as the parties
recognize, the facts of the instant case have not arisen in other TCPA actions. When questioned
about the purchase of her cell phones, Plaintiff testified:
Q.
A.
Q.
A.
Are you purchasing these phones purposefully to cause them to ring?
Yes.
Okay. And you understand that the phones ringing is -- is with -- is it
your intention that these phone calls are going to result then in some sort
of a demand whether it’s pre-litigation or an actual lawsuit?
I believe so.
(ECF No. 44-4 at 26.) In discussing the two cell phones at issue in the instant matter, Plaintiff
testified:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
[D]o you know where you bought these two specific ones?
No, I don’t.
Did you have to purchase a coverage plan?
No. They’re prepaid.
Okay. Any they’re prepaid for how many minutes?
Initially, 60 minutes. Sixty minutes. No. No. No. No. Ten minutes for
60 days. I’m sorry.
Okay. And did you ever add minutes to these phones?
Yes, I did.
Do you know if you added minutes specifically to the two phone
numbers at issue here?
Yes, I did.
Okay. How many minutes did you add?
I have no way of knowing.
How much does it cost to add minutes?
I use a 19.99 airtime card.
And how many times have you added minutes to the various -I have no way of knowing.
Okay. Have you added minutes to almost all of the 35 phones?
Yes, ma’am.
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Case 3:15-cv-00083-KRG Document 79 Filed 06/24/16 Page 28 of 38
Q.
A.
Okay. And the purpose of adding minutes is so that they will -- these
phones will receive more calls?
Correct.
(Id. at 17-19.)
Plaintiff’s testimony once again establishes that she has not suffered an injury-in-fact. It
is well settled that a plaintiff “cannot manufacture standing by choosing to make expenditures
based on hypothetical future harm that is not certainly impending.” Clapper v. Amnesty Int’l
USA, 133 S. Ct. 1138, 1143, 1151 (2013) (finding that “Respondents’ contention that they have
standing because they incurred certain costs as a reasonable reaction to a risk of harm is
unavailing--because the harm respondents seek to avoid is not certainly impending” and
holding that “respondents cannot manufacture standing merely by inflicting harm on
themselves based on their fears of hypothetical future harm that is not certainly impending”);
see also Reilly v. Ceridian Corp., 664 F.3d 38, 46 (3d Cir. 2011) (“[The plaintiffs’] alleged time and
money expenditures to monitor their financial information do not establish standing, because
costs incurred to watch for a speculative chain of future events based on hypothetical future
criminal acts are no more ‘actual’ injuries than the alleged ‘increased risk of injury’ which forms
the basis for [the plaintiffs’] claims.”); Crisafulli v. Ameritas Life Ins. Co., No. 13-CV-5937, 2015
U.S. Dist. LEXIS 56499, at *10 (D.N.J. Apr. 29, 2015) (holding that the plaintiff “may not rely on
expenses for identity theft protection as a basis for standing”); In re Horizon Healthcare Servs.
Data Breach Litig., No. 3:13-CV-7418, 2015 U.S. Dist. LEXIS 41839, at *18 n.5 (D.N.J. Mar. 31, 2015)
(holding that the plaintiffs did not have standing because they “may not rely on the expense of
credit monitoring and other preventative measures for standing”).
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Because Plaintiff has admitted that her only purpose in purchasing her cell phones and
minutes is to receive more calls, thus enabling her to file TCPA lawsuits, she has not suffered an
economic injury. See, e.g., Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d 316, 323 (3d Cir. 2015)
(explaining that “only certain plaintiffs will have suffered the particularized injury required to
maintain an action in federal court for a [TCPA] violation” and that “[s]omeone with a
generalized interest in punishing telemarketers, for example, would not qualify on that basis
alone”); Schumacher, 2015 U.S. Dist. LEXIS 132752, at *13 (explaining that “an interest in
statutory damages cannot be the sole injury to satisfy Article III requirements”); Cellco P’ship v.
Wilcrest Health Care Mgmt., 2012 U.S. Dist. LEXIS 64407, at *23-25 (D.N.J. May 8, 2012) (in
concluding that the plaintiffs lacked standing, noting the significance that “Plaintiffs have
abandoned any claim to actual damages, but solely seek statutory damages of $500 per call” and
stating that “[t]he TCPA . . . anticipates damages on an individual basis because the
contemplated plaintiff is an individual natural person or business with a limited number of phone
lines on which it might receive telemarketing calls”) (emphasis added). The Court therefore must
reject Plaintiff’s argument that she suffered an injury-in-fact because her economic interests
were violated.
The Court finds unavailing Plaintiff’s argument that well-settled law provides that she
has constitutional standing. Specifically, Plaintiff contends that “Article III standing can exist
even where the plaintiff purposefully chose to interact with a defendant engaged in illegal
misconduct.” (ECF No. 54 at 26 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).) In
Coleman, the United States Supreme Court determined that “testers,” or “individuals who,
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without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the
purpose of collecting evidence of unlawful steering practices,” had standing. 455 U.S. at 373.
Coleman is distinguishable from the instant matter because the tester was not collecting evidence
as a business.
Rather, the tester collected evidence to establish that she was told that
apartments were not available, while white testers were informed that apartments were
available. Id. at 374. The tester suffered an injury-in-fact because the purpose of the Fair
Housing Act was to “prohibit[] discriminatory refusals to sell or rent.” Id. Therefore, unlike
Plaintiff, the tester in Coleman suffered the very harm that the Fair Housing Act was designed to
prevent. Similarly, Plaintiff’s reliance upon Fitzhenry v. ADT Corp., No. 14-CV-80180, 2014 U.S.
Dist. LEXIS 166243 (S.D. Fla. Nov. 3, 2014), is inapposite. In Fitzhenry, the District Court held
that the plaintiff, who was a “professional plaintiff” and “pursue[d] TCPA claims as a source of
income,” had standing. Id. at *11-12. The Court disagrees with and is not bound by the
Fitzhenry decision.
Moreover, the District Court in Fitzhenry did not conduct an in-depth
analysis of constitutional and prudential standing. See id. Additionally, the evidentiary record
in Fitzhenry did not contain the extensive and undisputed admissions present in this case.
Finally, the Court notes that Defendant has argued that Plaintiff failed to respond to its
requests for admission, which were served upon Plaintiff on November 5, 2015. (ECF No. 44 at
11 n.4.) Defendant contends that, as a result of Plaintiff’s failure to respond, the requests for
admission are deemed admitted. (Id.) Defendant’s requests for admission included several
topics related to Plaintiff’s business of filing TCPA lawsuits. (See ECF No. 44-5.) In response to
Defendant’s argument, Plaintiff asserts that she did not respond to the requests for admission
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because “[she] was required to respond on December 5, 2015, well after the close of discovery
on December 1, 2015.” (ECF No. 54 at 30.)
The Court’s initial scheduling order, which was issued on June 30, 2015, included a
discovery deadline of December 1, 2015, and stated that “[a]ll interrogatories, notices of
deposition, requests for admissions and requests for production shall be served within
sufficient time to allow responses to be completed and filed prior to the close of discovery.”
(ECF No. 16 at 2.) A party must respond to requests for admission within thirty days after
being served. FED. R. CIV. P. 36(a)(3). Thus, because Defendant did not serve Plaintiff with its
requests for admission until November 5, 2015, the Court must reject its argument that the
requests are deemed admitted. See, e.g., Allen v. DeRose, No. 1:07-CV-1720, 2009 U.S. Dist. LEXIS
63335, at *3 n.1 (M.D. Pa. July 23, 2009) (noting that the plaintiff’s discovery request was
untimely because he served it only two weeks before the close of discovery); Tech. Dev. Co. v.
Onischenko, No. 05-CV-4282, 2009 U.S. Dist. LEXIS 9288, at *6-7 (D.N.J. Feb. 9, 2009) (holding
that the defendant’s discovery requests were untimely because they were not served in time for
the responses to be due before the discovery deadline); Nesselrotte v. Allegheny Energy, No. 06CV-1390, 2008 U.S. Dist. LEXIS 36100, at *4-5 (W.D. Pa. Apr. 30, 2008) (finding that the plaintiff’s
discovery requests were untimely because the defendant’s deadline to respond was three days
after the expiration of the discovery period). The Court therefore finds that it is not in the
interest of justice to consider Defendant’s requests for admission as part of the record.
Nonetheless, the admissions contained in Plaintiff’s deposition testimony, as delineated above,
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amply support the Court’s conclusion that Plaintiff has not suffered an injury-in-fact and
therefore lacks constitutional standing to assert her claim against Defendant.
b.
Prudential Standing
Even if, assuming arguendo, Plaintiff had suffered an injury-in-fact, Plaintiff would still
lack standing because she does not have prudential standing. See UPS Worldwide Forwarding v.
United States Postal Serv., 66 F.3d 621, 625 (3d Cir. 1995) (“Standing has constitutional and
prudential components, both of which must be satisfied before a litigant may seek redress in the
federal courts.”). Prudential standing requires that: (1) “a litigant assert his or her own legal
interests rather than those of third parties;” (2) “courts refrain from adjudicating abstract
questions of wide public significance which amount to generalized grievances;” and (3) “a
litigant demonstrate that her interests are arguably within the zone of interests intended to be
protected by the statute, rule or constitutional provision on which the claim is based.” Id. at 626
(internal quotations and alterations omitted).
To satisfy the first element of prudential standing, “the litigant [must] demonstrate that
it has asserted its ‘own legal interests rather than those of third parties.’” Id. at 627 (quoting
Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d Cir. 1994)). Specifically, “[t]he first element only
mandates that litigants assert their own legal rights, not those of others.”
Id.
“This test
generally comes into play in those cases in which a party seeks to challenge agency action that
affects another party.” Id. at 627-28. Thus, Plaintiff has satisfied the first element of prudential
standing because she is asserting her own legal interests.
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The second element of prudential standing “admonishes courts to ‘refrain from
adjudicating abstract questions of wide public significance which amount to generalized
grievances.’” Id. at 628 (quoting Wheeler, 22 F.3d at 538). Examples of generalized grievances
include cases in which plaintiffs sued to protest the Vietnam War and to challenge the legality
of the Central Intelligence Agency. Id. (citing Schlesinger v. Reservists Comm. to Stop the War, 418
U.S. 208, 220 (1974), and United States v. Richardson, 418 U.S. 166, 175 (1974)). Plaintiff’s action is
therefore not the type of “generalized grievance” that precludes prudential standing. See, e.g.,
Robins, 136 S. Ct. at 1548 n.7 (“The fact that an injury may be suffered by a large number of
people does not of itself make that injury a nonjusticiable generalized grievance.”); Anderson,
2011 U.S. Dist. LEXIS 51368, at *17 (finding that the plaintiff’s TCPA action did not amount to
generalized grievances because “she assert[ed] a specific grievance against [the defendant]”).
The parties dispute whether Plaintiff’s interests are arguably within the zone of interests
intended to be protected by the TCPA. “‘[T]he zone of interest test is a guide for deciding
whether, in view of Congress’ evident intent to make every agency action presumptively
reviewable, a particular plaintiff should be heard to complain of a particular agency decision.’”
Chem Serv., Inc. v. Envtl. Monitoring Sys. Lab.-Cincinnati, 12 F.3d 1256, 1262 (3d Cir. 1993)
(quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)). “‘[T]he test denies a right of review
if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit
in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’”
Id. (quoting Clarke, 479 U.S. at 399). In addressing a statute’s purpose, a court “’[is] not limited
to considering the statute under which [the plaintiff] sued, but may consider any provision that
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helps us to understand Congress’ overall purposes in the [statute].’” Id. at 1264 (quoting Clarke,
479 U.S. at 401).
There must be an “‘integral relationship’” between the statutory provisions that a
plaintiff claims have been violated and the provisions under which the plaintiff claims standing.
Davis by Davis v. Philadelphia Hous. Auth., 121 F.3d 92, 98 n.8 (3d Cir. 1997) (quoting Air Courier
Conference v. Am. Postal Workers Union, 498 U.S. 517, 530 (1991)). “This ‘integral relationship’
requirement, however, only necessitates that ‘the plaintiff must establish that the injury he
complains of . . . falls within the ‘zone of interests’ sought to be protected by the statutory
provision whose violation forms the legal basis for his complaint.” Id. (quoting Bennett v. Spear, 520
U.S. 154, 176 (1997) (emphasis in original)).
“In applying the zone of interest test, the Court has focused its inquiry on the
Congressional intent of the statute and whether the complainant’s interests were ‘among the
sorts of interests those statutes were specifically designed to protect.’” Chem Serv., Inc., 12 F.3d
at 1262 (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 886 (1990)). A court therefore must
“determine, using traditional tools of statutory interpretation, whether a legislatively conferred
cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1387 (2014).
In discussing constitutional standing above, the Court examined in depth Congress’s
intention to protect consumers from “the proliferation of intrusive, nuisance [telemarketing]
calls to their homes” by enacting the TCPA. Mims, 132 S. Ct. at 745 (internal quotations
omitted); see also supra Part V.A. In addition to its above analysis, the Court notes that the Third
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Circuit Court of Appeals has addressed the zone of interests protected by the TCPA. See Leyse,
804 F.3d 316. Specifically, the Third Circuit Court of Appeals explained that “[i]n passing the
Act, Congress was animated by outrage over the proliferation of prerecorded telemarketing
calls to private residences, which consumers regarded as an intrusive invasion of privacy and a
nuisance.” Id. at 325-26 (concluding that “a regular user of the phone line who occupies the
residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that
Congress intended to protect”) (internal quotations and alterations omitted); see also Gager, 727
F.3d at 271 (stating that “[t]he TCPA is a remedial statute that was passed to protect consumers
from unwanted automated telephone calls”) (emphasis added).
As discussed above, Plaintiff has not suffered an injury-in-fact because her privacy and
economic interests were not violated when she received calls from Defendant. See supra Part
V.A. Similarly, Plaintiff’s interests are not within the zone of interests intended to be protected
by the TCPA. Plaintiff’s interests, which include purchasing cell phones with the hope of
receiving calls from creditors for the sole purpose of collecting statutory damages, are not
“among the sorts of interests [the TCPA was] specifically designed to protect.” Chem Serv., Inc.,
12 F.3d at 1262 (internal quotations omitted). Given her admissions, which are described above,
the Court finds that Plaintiff’s interests “‘are so marginally related to or inconsistent with the
purposes implicit in the [TCPA] that it cannot reasonably be assumed that Congress intended to
permit the suit.’” Id. (quoting Clarke, 479 U.S. at 399). Indeed, it is unfathomable that Congress
considered a consumer who files TCPA actions as a business when it enacted the TCPA as a
result of its “outrage over the proliferation of prerecorded telemarketing calls to private
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residences, which consumers regarded as an intrusive invasion of privacy and a nuisance.”
Leyse, 804 F.3d at 325 (internal quotations and alterations omitted).
Because Plaintiff does not have “the sort of interest in privacy, peace, and quiet that
Congress intended to protect,” id. at 326, the Court finds that she has failed to establish that the
injury she complains of “falls within the zone of interests sought to be protected by the
statutory provision whose violation forms the legal basis for [her] complaint,” Davis by Davis,
121 F.3d at 98 n.8 (internal quotations and emphasis omitted). See, e.g., Maiden Creek Assocs., L.P.
v. United States DOT, 123 F. Supp. 3d 638, 649 (E.D. Pa. 2015) (noting that courts have held that
plaintiffs “whose sole motivation . . . was their own economic self-interest and welfare” were
not within the zone of interests to be protected by the National Environmental Policy Act)
(internal quotations omitted); Cellco P’ship, 2012 U.S. Dist. LEXIS 64407, at *17, 23 (holding that
the plaintiffs did not fall within the zone of interests protected by the TCPA because “they
attempt[ed] to use the statute in a way not intended or contemplated by Congress” and because
“[t]heir damages are not of the vexatious and intrusive nuisance nature sought to be redressed
by Congress in enacting the TCPA”); cf. Anderson, 2011 U.S. Dist. LEXIS 51368, at *17 (holding
that the plaintiff had prudential standing because “her interests in avoiding harassment via the
telephone line installed in her home are not so marginally related to or inconsistent with the
purposes implicit in the statute that they fail to fall within the TCPA’s zone of interests”)
(internal quotations omitted) (emphasis added).
Accordingly, not only does Plaintiff lack
constitutional standing, but she also lacks prudential standing. Because both constitutional and
prudential standing must be established “before a litigant may seek redress in the federal
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courts,” UPS Worldwide Forwarding, 66 F.3d at 625, the Court will grant Defendant’s motion for
summary judgment.
As a final matter, the Court notes that “[t]he district courts are coping with large
volumes of litigation, and parties with real losses frequently are delayed in obtaining
adjudications on the merits.” Wheeler, 22 F.3d at 539. “The mission of the federal courts best
can be fulfilled if the courts recognize and enforce the constitutional and prudential limitations
on the exercise of their jurisdiction.” Id. at 539-40. Enforcing constitutional and prudential
standing ensures that “the courts will have time to devote to claims by parties who actually
have been injured and may be entitled to relief on their own behalf.” Id. at 540.
B.
Plaintiff’s Cross-Motion for Summary Judgment
Plaintiff has filed a cross-motion for summary judgment, arguing that she has
established each element of the TCPA and is entitled to judgment. (See ECF No. 56.) Having
concluded that Plaintiff lacks standing to assert her claim against Defendant, the Court need not
address Plaintiff’s cross-motion for summary judgment.
VI.
Conclusion
For the foregoing reasons, Plaintiff has not established that she has constitutional or
prudential standing to assert her claim against Defendant. Accordingly, Defendant’s motion for
summary judgment is GRANTED. Plaintiff’s cross-motion for summary judgment is DENIED.
An appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MELODY STOOPS,
CIVIL ACTION NO. 3:15-83
Plaintiff,
JUDGE KIM R. GIBSON
v.
WELLS FARGO BANK, N.A.,
Defendant.
ORDER
AND NOW, tills 24th day of June, 2016, upon consideration of Defendant Wells Fargo
Bank, N.A.'s motion for summary judgment (ECF No. 44) and Plaintiff Melody Stoops' crossmotion for summary judgment (ECF No. 56), and for the reasons set forth in the accompanying
memorandum, IT IS HEREBY ORDERED as follows:
(1) Defendant Wells Fargo Bank, N.A.'s motion for summary judgment is GRANTED.
(2) Plaintiff's Melody Stoops' cross-motion for summary judgment is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in favor of
Defendant Wells Fargo Bank, N.A. and against Plaintiff Melody Stoops and shall mark this case
closed.
BY THE COURT:
~~
KIM R. GIBSON
UNITED ST A TES DISTRICT JUDGE
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