Huffman v. Dish Network, LLC
Filing
35
ORDER granting 25 Motion for Summary Judgment. Signed by Judge Jon Phipps McCalla on 7/14/2016. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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RODNEY B. HUFFMAN,
Plaintiff,
v.
DISH NETWORK, LLC,
Defendant.
No. 2:15-cv-02274-JPM-tmp
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before
Judgment,
the
filed
Court
April
is
29,
Defendant’s
2016.
Motion
(ECF
No.
for
25.)
Summary
For
the
following reasons, the Motion is GRANTED.
I.
BACKGROUND
A.
Factual Background
Plaintiff Rodney B. Huffman is a former customer of Dish
Network,
LLC
(“Dish”),
having
executed
a
DISH’n
It
Up
Plan
Agreement (“Service Agreement”) with Defendant on June 30, 2012.
(Ex. A, Montano Aff. at PageID 124-25, ECF No. 25-3; Ex. B,
Service
Agreement
Undisputed
Facts
at
PageID
(“SUF”)
¶
128,
3,
ECF
ECF
No.
No.
25-4;
25-2;
Statement
Pl.’s
Resp.
of
to
Statement of Undisputed Facts (“Resp. to SUF”) ¶ 3, ECF No. 272.)
Plaintiff used a cellular telephone with the number 901-
830-6255 (“the 6255 number”) as part of a paid subscription to
AT&T cellular service.
PageID
131,
ECF
No.
(Ex. C, AT&T Subscriber Information at
25-5;
Ex.
D,
Pl.’s
Resp.
to
Def.’s
Interrogatories at PageID 134, ECF No. 25-6; SUF ¶ 5, ECF No.
25-2; Resp. to SUF ¶ 5, ECF No. 27-2.)
In executing the Service
Agreement, Plaintiff granted Defendant permission to contact him
at 901-385-9002; the 6255 number does not appear in the Service
Agreement.
(Ex. B, Service Agreement at PageID 128-129, ECF No.
25-4; Resp. to SUF ¶¶ 18-19, ECF No. 27-2; Def.’s Reply to Pl.’s
Resp. to SUF ¶¶ 5-6, ECF No. 28-1.)
During a phone call between
the parties on January 5, 2015 (“January 5 call”), Plaintiff
provided
Defendant
disconnected.”
with
the
6255
number
“[i]n
case
we
get
(Ex. J, Audio Recording: January 5 call (on file
with the Court), ECF No. 25-12; Tr. of January 5 call at PageID
756, ECF No. 25-13; Resp. to SUF ¶¶ 20-21, ECF No. 27-2; Def.’s
Reply to Pl.’s Resp. to SUF ¶¶ 7-8, ECF No. 28-1.)
A telephone number used by Defendant, 800-333-3474 (“the
3474 number”), appears only twice in Plaintiff’s AT&T cellular
phone service call records between January 1, 2015, and March
30, 2015.
(Ex. E, Pl.’s Production of AT&T Records at PageID
150-51, ECF No. 25-7; Ex. F, AT&T Records (DISH Subpoena) at
PageID 329-30; Ex. G, AT&T Records Key at PageID 737; SUF ¶¶ 79, ECF No. 25-2; Min. Entry, ECF No. 32.)
In both of these
instances, the call records reflect that Plaintiff initiated the
call from the 6255 number to Dish’s 3474 number.
2
(Ex. E, Pl.’s
Production of AT&T Records at PageID 150-51, ECF No. 25-7; Ex.
F, AT&T Records (DISH Subpoena) at PageID 329-30; Ex. G, AT&T
Records Key at PageID 737; SUF ¶¶ 7-9, ECF No. 25-2; Min. Entry,
ECF No. 32.) 1
Plaintiff nevertheless maintains that he received
automated telephone calls from an entity Dish Network between
January 1, 2015, and March 30, 2015.
(Ex. A, Huffman Decl.
¶¶ 2-7, ECF No. 27-3.) 2
B.
Procedural Background
Plaintiff
filed
a
Complaint
pursuant
to
the
Telephone
Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”) on
April 24, 2015.
(Compl., ECF No. 1.)
Answer on July 3, 2015.
Defendant filed its
(Answer, ECF No. 13.)
With leave of
the Court, Plaintiff filed an Amended Complaint on August 28,
2015.
(Am. Compl., ECF No. 21.)
Defendant filed an Answer to
Plaintiff’s Amended Complaint on September 14, 2015.
(Answer to
Am. Compl., ECF No. 22.)
Defendant filed a Motion for Summary Judgment on April 29,
2016.
(ECF No. 25.)
Plaintiff filed a Response to Defendant’s
1
Although Dish Network’s internal call records also do not show any
outgoing calls to Plaintiff’s 6255 number, the Court declines to consider
these records as they were not properly authenticated. See Fambrough v. WalMart Stores, Inc., 611 F. App’x 322, 326 (6th Cir. 2015).
2
At the hearing on the instant motion, Plaintiff’s counsel conceded
that Plaintiff only HAS personal knowledge that an entity purporting to be
Dish Network called him at the 6255 number, and that Plaintiff stored the
inbound number in the native contacts database on his cellular phone as “Dish
Network.” Thus, to the extent that Plaintiff states in his affidavit that he
knew the entity dialing him “was Dish each time as its name would appear on
the caller ID,” the caller identification merely reflects Plaintiff’s belief
that the entity calling him was Dish Network. (Ex. A, Huffman Decl. ¶ 5, ECF
No. 27-3.)
In other words, Plaintiff does not have personal knowledge that
he was, in fact, receiving calls from Dish Network. (See id.)
3
Motion for Summary Judgment on May 13, 2016.
(ECF No. 27.)
May 20, 2016, Defendant filed a reply brief.
(ECF No. 28.)
On
The
Court held a hearing on the Motion for Summary Judgment on July
11, 2016. (Min. Entry, ECF No. 32.)
II.
LEGAL STANDARD
A
party
is
entitled
to
summary
judgment
“if
the
movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“A fact is ‘material’ for purposes of
summary judgment if proof of that fact would establish or refute
an
essential
element
of
the
cause
of
action
or
defense.”
Bruederle v. Louisville Metro Gov’t, 687 F.3d 771, 776 (6th Cir.
2012).
“In considering a motion for summary judgment, [the] court
construes all reasonable inferences in favor of the nonmoving
party.”
(citing
Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014)
Matsushita
Elec.
Indus.
475 U.S. 574, 587 (1986)).
burden
of
demonstrating
material fact.”
Cir.
2012)
Co.
v.
Zenith
Radio
Corp.,
the
“The moving party bears the initial
absence
of
any
genuine
issue
of
Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th
(citing
Celotex
Corp.,
477
U.S.
at
323).
“Once the moving party satisfies its initial burden, the
burden shifts to the nonmoving party to set forth specific facts
showing a triable issue of material fact.”
4
Mosholder, 679 F.3d
at 448-49 (citing Matsushita, 475 U.S. at 587; Fed. R. Civ.
P. 56(e)).
“When
the
non-moving
party
fails
to
make
a
sufficient showing of an essential element of his case on which
he bears the burden of proof, the moving parties are entitled to
judgment as a matter of law and summary judgment is proper.”
Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d
911, 914 (6th Cir. 2013) (quoting Chapman v. UAW Local 1005, 670
F.3d 677, 680 (6th Cir. 2012) (en banc)); see also Kalich v.
AT&T Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012).
“To show that a fact is, or is not, genuinely disputed,
both parties are required to either ‘cite[] to particular parts
of materials in the record’ or ‘show[] that the materials cited
do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to
support the fact.’”
Bruederle, 687 F.3d at 776 (alterations in
original)
Fed.
(quoting
R.
Civ.
P.
56(c)(1));
see
also
Mosholder, 679 F.3d at 448 (“To support its motion, the moving
party may show ‘that there is an absence of evidence to support
the nonmoving party’s case.’” (quoting Celotex Corp., 477 U.S.
at
325)).
evidence,
“Credibility
and
the
determinations,
drawing
of
legitimate
the
weighing
inferences
facts are jury functions, not those of a judge[.]”
of
the
from
the
Martinez,
703 F.3d at 914 (alteration in original) (quoting Anderson v.
5
Liberty
Lobby,
Inc.,
477
U.S.
242,
255
(1986))
(internal
quotation marks omitted).
“The court need consider only the cited materials, but it
may
consider
P. 56(c)(3).
other
materials
in
the
record.”
Fed.
R.
Civ.
“[T]he district court has no ‘duty to search the
entire record to establish that it is bereft of a genuine issue
of material fact.’”
Touche,
Pharos Capital Partners, L.P. v. Deloitte &
535 F. App’x
522,
(6th Cir.
Tennessee,
v.
523
539 F.3d
2013)
Tucker
2008)).
“‘[J]udges are not like pigs, hunting for truffles’
Corp.,
446 F.
App’x
733,
736
(6th
531
curiam)
(quoting
that might be buried in the record.”
526,
(per
(6th Cir.
Emerson v. Novartis Pharm.
Cir.
2011)
(alteration
in
original) (quoting United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991)).
The decisive “question is whether ‘the evidence presents a
sufficient
disagreement
to
require
submission
to
a
jury
or
whether it is so one-sided that one party must prevail as a
matter of law.’”
Johnson v. Memphis Light Gas & Water Div., 777
F.3d 838, 843 (6th Cir. 2015) (quoting Anderson, 477 U.S. at
251–52).
“[A] mere ‘scintilla’ of evidence in support of the
non-moving party’s position is insufficient to defeat summary
judgment;
rather,
the
non-moving
party
must
present
upon which a reasonable jury could find in her favor.”
6
evidence
Tingle
v.
Arbors
at
Hilliard,
692
F.3d
523,
529
(6th
Cir.
2012)
(quoting Anderson, 477 U.S. at 251).
III. ANALYSIS
Defendant argues that it is entitled to summary judgment
because Plaintiff has not established that Defendant made any
phone call to Plaintiff’s 6255 number from the 3474 number or
any other number.
(ECF No. 25-1 at 2.)
Defendant argues that,
therefore, Plaintiff cannot establish an essential element of
his TCPA claim.
(Id. at 7-8.)
Defendant also argues that it is
entitled to summary judgment because, even if Plaintiff could
establish that Defendant made a call in violation of the TCPA,
Plaintiff gave Defendant permission to make automated calls to
the 6255 number.
(Id. at 8-10.)
Plaintiff argues that his
sworn affidavit and his Responses to Interrogatories, both based
on his personal knowledge, are adequate to show that there is a
genuine dispute of material fact as to whether Defendant called
him.
that
(ECF No. 27-1 at 12-15.)
the
Service
Agreement
Additionally, Plaintiff contends
did
not
permit
Defendant
to
make
automated calls to the 6255 number, which was not provided in
the Service Agreement, and that Plaintiff nevertheless revoked
that consent when he told Defendant to stop calling him.
(Id.
at 8-12.)
The Telephone Consumer Protection Act (“TCPA”) provides, in
relevant part, that:
7
It shall be unlawful for any person within the United
States . . . to make any call . . . using any
automatic telephone dialing system 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).
Thus,
to
establish
a
claim
pursuant to TCPA in the Sixth Circuit, a plaintiff must prove
that the defendant made a prohibited phone call.
Keating v.
Peterson’s Nelnet, LLC, 615 F. App’x 365, 370 (6th Cir. 2015)
(citing
47
U.S.C.
§ 227(b)(1)(A)(iii));
Yount
v.
Midland
Funding, LLC, No. 2:14-CV-108, 2016 WL 554851, at *7 (E.D. Tenn.
Feb. 10, 2016); Pugliese v. Prof’l Recovery Serv., Inc., No. 0912262, 2010 WL 2632562, at *7 (E.D. Mich. June 29, 2010) (citing
42 U.S.C. § 227(b)(1)(A)); see also Strand v. Corinthian Colls.,
Inc., No. 1:13-CV-1235, 2014 WL 1515494, at *2 (W.D. Mich. Apr.
17, 2014) (“a defendant is liable for a violation of § 227(b)(1)
when it: (1) makes a call; (2) using (a) an automatic dialing
system,
or
(b)
a
prerecorded
or
artificial
voice;
telephone number assigned to a cellular telephone”).
(3)
to
a
Summary
judgment is, therefore, appropriate when a plaintiff fails to
establish that the defendant made a prohibited phone call to a
plaintiff’s cellular telephone.
See Harper v. Credit Control
Servs., Inc., 863 F. Supp. 2d 125, 127 (D. Mass. 2012).
Although Rule 56(c) requires a non-moving party to cite to
materials in the record including affidavits and responses to
interrogatories, to survive summary judgment, it does not follow
8
that
such
evidence
will
necessarily
be
sufficient.
See
Am.
Speedy Printing Ctrs., Inc. v. AM Mktg., Inc., 69 F. App’x 692,
697 (6th Cir. 2003) (affirming district court’s grant of summary
judgment to a movant who supported its motion with citations to
the
record
while
“unsupported
the
affidavit”
non-moving
with
party
“no
produced
evidence
only
countering
an
[the
movant’s] documentation in support of its motion for summary
judgment” (emphasis in original)); Bright v. Martin, 37 F. App’x
136, 138 (6th Cir. 2002) (affirming district court’s grant of
summary judgment where the nonmovant prisoner plaintiff filed
only an affidavit and unrelated medical records to attempt to
establish a genuine dispute issue of material fact); Whitley v.
Spencer Cty. Police Dep’t, 178 F.3d 1298, 1999 WL 196499, at *3
(6th Cir. 1999) (unpublished table decision) (affirming district
court’s
grant
of
summary
judgment
to
a
defendant
where
“the
objective [evidence at the close of discovery] contradict[ed]
plaintiff’s
self-serving
affidavits
and
conclusory
allegations”).
“When opposing parties tell two different stories, one of
which
is
blatantly
contradicted
by
the
record,
so
that
no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007);
see also Skousen v. Brighton High Sch., 305 F.3d 520, 526-28
9
(6th Cir. 2002) (citing Anderson, 477 U.S. at 252) (holding that
where the non-moving party has offered only “[a] mere scintilla
of evidence” in opposition to a motion for summary judgment, the
non-moving
judgment).
party
will
not
overcome
the
motion
for
summary
“The court’s duty to view the facts in the light
most favorable to the nonmovant does not require or permit the
court
to
accept
factual evidence.”
mere
allegations
that
are
not
supported
by
Chappell v. City of Cleveland, 585 F.3d 901,
906 (6th Cir. 2009) (citing Leary v. Livingston Cty., 528 F.3d
438, 443-44 (6th Cir. 2008)).
In the instant case, Plaintiff failed to establish that
Defendant made a prohibited phone call to the 6255 number from
any number, including the 3474 number.
Defendant has submitted
independent records from AT&T 3 which demonstrate that Defendant
3
Plaintiff averred in filings, and during the hearing on the instant
motion, that the AT&T cellular telephone service records Plaintiff produced
during discovery are “unverified third-party . . . records” and that they may
or may not be “a complete and accurate record of the calls he received” at
the 6255 number between January 1, 2015, and March 30, 2015. (Resp. to SUF
¶ 8, ECF No. 27-2; Min. Entry, ECF No. 32.) Plaintiff’s counsel nevertheless
agreed that the AT&T cellular phone service records do not include a record
of any phone call with the 3474 number as the Originating Number and the 6255
number as the Terminating Number. (See Resp. to SUF ¶¶ 8-9, ECF No. 27-2.)
These records were properly authenticated, however, and Plaintiff submits no
evidence in support of his allegation that they are incomplete. (See Ex. F,
AT&T Records (DISH Subpoena), ECF No. 25-8.) Because “[l]egal memoranda and
oral argument are not evidence and do not create issues of fact,” Television
Events & Mktg., Inc. v. AMCON Distrib., Co., 484 F. Supp. 2d 1124, 1130 n.4
(D. Haw. 2006) (citing British Airways Bd. v. Boeing Co., 585 F.2d 946, 952
(9th Cir. 1978)), the Court cannot substantively consider Plaintiff’s
contention that the record is incomplete.
Additionally, the Court observes that Plaintiff did not attempt to
conduct discovery to uncover whether the phone records were, in fact,
complete and accurate.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (“the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party
10
made no calls to Plaintiff during the time period at issue.
Although
Plaintiff
states
under
oath
that
he
did,
in
fact,
receive prohibited calls from Defendant, the AT&T phone records
“blatantly contradict” Plaintiff’s contention.
(See ECF No. 25-
1 at 3-5 (citing Ex. E, Pl.’s Production of AT&T Records, No.
25-7;
Ex.
Thus,
no
F,
AT&T
Records
reasonable
jury
(DISH
could
Subpoena),
find
that
ECF
No.
Defendant
25-8).)4
made
any
concerning
an
calls to Plaintiff’s 6255 number. 5
Because
essential
“a
complete
element
of
a
failure
nonmoving
of
proof
party’s
case
necessarily
renders all other facts immaterial,” the Court need not consider
whether Plaintiff gave Defendant permission to make automated
calls
to
his
6255
number.
See
Celotex,
477
U.S.
at
323.
Plaintiff has failed to establish an essential element of his
TCPA claim and, accordingly, Defendant is entitled to judgment
as a matter of law.
who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
burden of proof at trial”).
4
While the Court may not weigh evidence or make credibility
determinations at the summary judgment stage, it may consider whether
objective evidence blatantly contradicts a plaintiff’s unsupported
assertions. See Scott, 550 U.S. at 380.
5
Plaintiff relies on Pratt v. CMRE Fin. Servs., Inc., No. 4:10-CV-2332
(CEJ), slip op. (E.D. Mo. Jan. 11, 2012), and Krapf v. Nationwide Credit,
Inc., No. SACV 09-00711 JVS (MLGx), 2010 WL 2025323 (C.D. Cal. May 21, 2010),
for the proposition that a nonmovant will survive a summary judgment motion
even if he cannot remember exactly when he received prohibited phone calls.
In Pratt and Krapf, however, there was documentary evidence demonstrating
that the phone calls actually occurred. In the instant case, Plaintiff’s
declaration not only lacks specificity, but also is wholly unsupported and
blatantly contradicted by the documentary evidence.
11
IV.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary
Judgment (ECF No. 25) is GRANTED.
IT IS SO ORDERED, this 14th day of July, 2016.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
12
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