United States District Court, D. New Jersey
JOSEPH H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Erica Jackson's Motion for
Summary, Defendant PMAB, LLC's Cross Motion for Summary
Judgment and Motion for Leave to File a
Sur-Reply. The Court has considered the written
submission of the parties and for the reasons that follow
will deny both motions for summary judgment because genuine
issues of material fact preclude summary judgment.
Erica Jackson (“Jackson”) commenced this action
against Defendant PMAB, LLC (“PMAB”) under the
Fair Debt Collections Practices Act, 15 U.S.C. §1692, et
seq. and the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227, et seq. The TCPA,
the only remaining claim in this case, prohibits calling any
person on a cellular telephone number using a prerecorded or
automated voice except for emergency purposes placement or
where the call is “made with the prior express consent
of the called party[.]”) 47 U.S.C. §
227(b)(1)(A)(iii). Jackson contends that PMAB initiated 111
calls to her cellular telephone number ending in 4171,
without her consent, between April 1, 2014, and December 17,
2015. See Def. Supplemental Responses to
Interrogatories, Ex. E. No. 14; Def. Account Notes, Ex. F.
PMAB does not deny making the calls. PMAB contends that it
had permission from Darryl Cochran (“Cochran”),
Jackson's boyfriend, to call the 4171 telephone number
and that Cochran had permission from Jackson to use her
placed telephone calls to 4171 in an attempt to collect money
from Cochran owed to South Jersey Health System, A.K.A.
Inspira (“Inspira”). See Def.
Supplemental Responses to Interrogatories, Ex. E. No. 14;
Def. Account Notes, Ex. F. at p. 1.; Def. Responses to
Interrogatories, Ex. G. No. 11; Inspira Records, Ex. H. PMAB
conceded, for this case only, that the calls made to
Jackson's 4171 number were made with an automated
telephone dialing system as defined by the TPCA. See
Dec. of Rachel Stevens, Ex. C. at ¶¶ 7-8.); Def.
Account Notes, Ex. F.; Def.'s Responses to
Interrogatories Ex. G. at No. 8. Inspira's records show
Cochran provided Jackson's 4171 number to Inspira during
intake when he sought medical treatment. See Inspira
Records, Ex. H. The 4171 number is Jackson's cellular
telephone number and Cochran is not the owner of the phone
and he does not pay the bills associated with her account; he
has his own cellular telephone. See Pl. Responses to
Interrogatories, Ex. A., Second Set Nos. 8, 10, 11, 15, and
20; Statement of Cochran, Ex. J.; Dec. of Pltf., Ex. D.,
¶ 7. However, both Cochran and Jackson testify that
Cochran is permitted emergency use of Jackson's 4171
cellular telephone but must ask for permission and then use
the phone in Jackson's presence. See Dec. of
Pltf., Ex. D., ¶¶ 8-9, ¶ 12. Jackson claims
she did not give Cochran permission to give her 4171 cellular
telephone number to Defendant or Inspira. Id. at
seeks damages for violations of the TCPA because Defendant
called her cellular telephone 111 times without her express
consent. Cochran is not a party to this action. PMAB cross
moves for summary judgment because it claims that Cochran had
Jackson's consent, and thereby her consent, to contact
him on Jackson's cellular number. Jackson disputes this
and moves for summary judgment on this basis.
Standard of Review
will grant a motion for summary judgment if there is no
genuine issue of material fact and if, viewing the facts in
the light most favorable to the non-moving party, the moving
party is entitled to judgment as a matter of law. Pearson
v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir.
2001) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986));
accord Fed.R.Civ.P. 56 (c). Thus, this Court will
enter summary judgment only when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56 (c).
issue is “genuine” if supported by evidence such
that a reasonable jury could return a verdict in the
nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). A fact is “material” if, under the
governing substantive law, a dispute about the fact might
affect the outcome of the suit. Id. In determining
whether a genuine issue of material fact exists, the court
must view to the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986).
the moving party has the burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise,
specific facts showing that there is a genuine issue for
trial. Id.; Maidenbaum v. Bally's Park
Place, Inc., 870 F.Supp. 1254, 1258 (D.N.J. 1994). Thus,
to withstand a properly supported motion for summary
judgment, the nonmoving party must identify specific facts
and affirmative evidence that contradict those offered by the
moving party. Andersen, 477 U.S. at 256-57. Indeed,
the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party 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. Celotex, 477 U.S. at
deciding the merits of a party's motion for summary
judgment, the court's role is not to evaluate the
evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility
determinations are the province of the finder of fact.
Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d
1358, 1363 (3d Cir. 1992).
TCPA was amended in 1991 to address calls to personal
cellular phone with the goal of protecting consumers from
“intrusive and unwanted calls.” Gager v. Dell
Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013)
(citing Mims v. Arrow Fins. Servs., LLC, 565 U.S.
368, 372-73, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012)). The Act
prohibits, inter alia, four principal practices.
See 47 U.S.C. § 227 (b) (1). Relevant here is
the proscription of the placement of “any call (other
than a call made for emergency purposes or made with the
prior express consent of the called party) using any
automatic telephone dialing system ... to any telephone
number assigned to a ... cellular telephone service.”
Id. § 227 (b) (1) (A) (iii). Prior express
consent, pursuant to the TCPA, is given when “persons
who knowingly release their phone numbers have in effect
given their invitation or permission to be called at the
number which they have given, absent instructions to the
contrary.” Rules and Regulations Implementing the
Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8769
(1992). In this regard, “prior express consent is
deemed to be granted only if the wireless number was provided
by the consumer to the creditor, and that such number was
provided during the transaction that resulted in the debt
owed.” Rules and Regulations Implementing the Consumer
Protection Act of 1991, 23 FCC Rcd. 559, 564-65 (2008);
see also Chisholm v. AFNI, Inc., No. CV 15-3625
(JBS/JS), 2016 WL 6901358, at *5 (D.N.J. Nov. 22, 2016).
determining whether a plaintiff has given “prior
express consent[, ]” must grapple with the tension
between individual privacy rights and the freedom of
commercial speech. See Telephone Consumer Protection
Act, Pub. L. No. 102-243, § 2(9), 105 Stat. 2394 (1991)
(codified as amended at 47 U.S.C. § 227); see Leyse
v. Bank of Am. Nat. Ass'n, 804 F.3d 316, 326 (3d
Cir. 2015). The creditor bears the burden to demonstrate that
the recipient of a call provided prior express consent.
Evankavitch v. Green Tree Servicing, LLC, 793 F.3d
355, 366 (3d Cir. 2015). The recipient of a call, however,
may differ from the intended target. The Act does not offer a
definition of the phrase “knowingly released”
within the considerations of whether prior express consent
exists. However, courts must adhere to the guidance
promulgated by the Federal Communications Commission