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Jackson v. PMAB, LLC

United States District Court, D. New Jersey

September 28, 2017

ERICA JACKSON, Plaintiff,
v.
PMAB, LLC, Defendant.

          OPINION

          HON. JOSEPH H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE

         Presently 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.[1] 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.

         I. Background

         Plaintiff 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 number.

         PMAB 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 ¶11.

         Jackson 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.

         II. Standard of Review

         A court 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).

         An 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).

         Initially, 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 322.

         In 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).

         III. Analysis

         The 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).

         Courts 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 ...


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