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City Select Auto Sales, Inc. v. David Randall Associates, Inc.

United States District Court, D. New Jersey

September 24, 2014

CITY SELECT AUTO SALES, INC., a New Jersey corporation, individually and as the representative of a class of similarly situated persons, Plaintiff,
v.
DAVID RANDALL ASSOCIATES, INC., et al., Defendants.

Alan C. Milstein, Esq. Sherman, Silverstein, Kohl, Rose & Podolsky, PC, Moorestown, NJ, and Tod Lewis, Esq., Jonathan Piper, Esq., Bock & Hatch, LLC, Chicago, IL, Attorneys for Plaintiff City Select Auto Sales, Inc.

F. Emmett Fitzpatrick, III, Esq., Flamm Boroff & Bacine PC, Blue Bell, PA, Attorney for Defendants and Third Party Plaintiffs David, Randall Associates, Inc. and Raymond Miley, III.

OPINION

JEROME B. SIMANDLE, Chief District Judge.

I. INTRODUCTION

In this Telephone Consumer Protection Act (hereinafter, the "TCPA") class action concerning transmission of unsolicited fax advertisements, Defendant David Randall Associates, Inc. (hereinafter, "David Randall") and its owner, Defendant Raymond Miley, III (hereafter "Miley" and collectively with David Randall, the "Defendants"), move for summary judgment on all claims.[1] [Docket Item 114.] Defendants specifically assert that the undisputed facts in this litigation fail to support Plaintiff's TCPA, state law conversion, and individual liability claims. Plaintiff generally asserts in opposition that factual disputes concerning Defendants' liability for the facsimile advertisements in this litigation preclude the entry of summary judgment.

The parties do not dispute that a third-party entity, Business to Business Solutions (hereinafter, "B2B"), transmitted the facsimile advertisements that form the predicate for this action. Nor do the parties genuinely dispute that B2B broadcasted and distributed the facsimile advertisements on behalf of Defendants. Rather, the parties primarily dispute whether the definition of "sender" under the TCPA envelops solely the entity that physically transmitted the facsimile advertisement, or whether such definition also includes the entity whose goods and/or services are subject to the advertisements. The principal issues before the Court are therefore whether the TCPA limits liability to only those who directly transmit facsimile advertisements and, relatedly, whether triable issues of fact exist with respect to whether, and to what extent, Miley bore personal involvement in the disputed transmissions.

For the reasons explained below, the Court finds that factual disputes preclude the entry of summary judgment in Defendants' favor with respect to all claims set forth in Plaintiff's Complaint. The Court will therefore deny Defendants' motion for summary judgment.[2]

II. BACKGROUND

A. Factual Background

In the spring of 2006-the time period relevant to the pending action-Defendant Raymond Miley, III acted as President of Defendant David Randall Associates, Inc., a commercial roofing company organized under the laws of the Commonwealth of Pennsylvania. (Defs.' SMF [Docket Item 114], ¶¶ 1-2 (citation omitted).) During the same period, Third Party Defendants Caroline Abraham and Joel Abraham "operated an unincorporated advertising business" named "Business to Business Solutions'" (as defined above, "B2B").[3] (Pl.'s SMF [Docket Item 116], 4 (citation omitted).)

B2B "solicited" David Randall's business, and specifically offered to market David Randall's roofing services through B2B's fax broadcasting program. (Id. at 6 (citing Ex. C at 66:1-68:5 (deposition of Raymond H. Miley, III)).) Upon receipt of B2B's solicitation, April T. Clemmer, Miley's administrative assistant (Ex. C. at 14:14-18), contacted B2B to inquire into the specific pricing and distribution details of B2B's fax marketing services. (Ex. A at 10:5-11:7, 14:11-15:16.) David Randall, with Miley's authorization, then contracted with B2B "to develop and conduct a fax advertising campaign on its behalf'" (Pl.'s SMF at 4), and provided certain information concerning David Randall's services, in addition to information concerning the targeted radius for advertisement dissemination. (See Ex. A at 17:1-18:14; Ex. B; Ex. C at 35:1-25; Ex. D at 17 on the docket (Miley's advertisement approval).)

B2B thereafter sent multiple fax advertisements on David Randall's behalf to "a list of persons'" purchased by B2B. (Defs.' SMF at ¶ 5 (citation and emphasis omitted).) The advertisements, ultimately transmitted to "29, 113 unique fax numbers[, ]" described the roofing services provided by David Randall, provided its contact information, and generally stated "Roof Leaks??? Repairs Available." (Id. at ¶ 5; Exhibit B [Docket Item 116-2].)

B. Procedural History

Plaintiff filed the initial Complaint in this action on May 10, 2011. (See Class Action Compl. [Docket Item 1], ¶ 1.) In its Complaint, Plaintiff generally alleges that Defendants have a "policy and practice of faxing unsolicited advertisements" in contravention of the TCPA and state tort law. (Id. at ¶ 1.) In accordance with this purported policy, Plaintiff alleges that, on April 4, 2006 and May 15, 2006, Defendants sent two (2) such advertisements to Plaintiff, without its "prior express permission or invitation." (Id. at ¶¶ 13, 29.) Plaintiff also states that Defendants similarly transmitted the identical "form facsimile" 44, 832 times "without error to 29, 113 unique fax numbers" from March 29, 2006 to May 16, 2006. (Id. at ¶ 14.) Plaintiff therefore contends that Defendants' unsolicited transmissions violated the TCPA and also "improperly converted" Plaintiff's fax machine, toner, paper, and employees' time for Defendants' "unauthorized purpose." (Id. at ¶¶ 30-41.) Plaintiff therefore seeks, on behalf of all persons who received such fax advertisements during the spring of 2006, declaratory and injunctive relief and monetary damages, jointly and severally, against David Randall and Miley. (Id. at ¶¶ 29, 41.)

Thereafter, Defendants moved to dismiss Plaintiff's Complaint, asserting that the applicable limitations period and New Jersey's entire controversy doctrine collectively barred Plaintiff's claims. [Docket Item 8.] The Court's February 7, 2012 Opinion denying Defendants' motion found the entire controversy doctrine inapplicable and further concluded that the pendency of a state court action had tolled the limitations period and, accordingly, effected no bar of Plaintiff's ...


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