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Manopla v. Home Depot, Inc.

United States District Court, D. New Jersey

January 8, 2018

AARON MANOPLA and EVELYN MANOPLA, Plaintiffs,
v.
HOME DEPOT, INC., ATLANTIC WATER PRODUCTS, et al. Defendants.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter is before the Court on Defendant Home Depot's motion to amend and certify for interlocutory appeal. (ECF No. 68). Defendant Atlantic Water Products joins the motion by filing a memorandum in support. (ECF No. 69).

         I.

         On February 12, 2015, Plaintiffs Aaron and Evelyn Manopla brought this action on behalf of themselves and all others similarly situated against Defendants Home Depot, Inc., and Defendant Atlantic Water Products, Inc. alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). In their Third Amended Complaint, the Manoplas allege Atlantic Water called their cell phone multiple times beginning January 7, 2015 lasting several days using an automatic telephone dialing system (ATDS) or an “artificial or pre-recorded voice” without their prior express consent. The Manoplas further allege Home Depot is vicariously liable for the calls. The Manoplas are seeking statutory damages in the amount of $500, treble damages for willful and knowing violation of the TCPA, and injunctive relief. Defendants filed a motion for summary judgment which was denied by this court on September 29, 2017 based on the reasons placed on the record on the same date. (ECF No. 64).

         Factual Background:

         Sometime during December 2014, the Manoplas visited a Home Depot store where Ms. Manopla encountered a kiosk containing water-test-by-mail kits and accompanying forms. Although the kit displayed Home Depot logos, it was to be returned to Atlantic Water. (“Exhibits B and C”). Ms. Manopla took the kit home because she was interested in learning more about her home's tap water. Ms. Manopla filled in the contact information section of the water test request card with her cell phone number, email address and mailing address and mailed the card with a water sample to Atlantic Water. The form did not contain the phrase “solicitation communication” or “automated telephone calls.” Ms. Manopla testified she expected to be contacted and had no preference as to which of the methods was used.

         First Call[1]

         The parties agree Home Depot did not make any of the calls at issue in this case. On January 7, 2015, Atlantic Water placed its first call to Ms. Manopla's cell phone. Ms. Manopla took the call while she was at work and heard a “pre-recorded” voice stating the following:

Hi, this is Tim from Home Depot Water Testing Services. We have your test results from the water sample that you sent in. To talk to a live operator, hit any button on your keypad. Or, you can reach us at (302) 544-7144. Again, that is (302) 544- 7144. Anytime between 9 am and 9 pm Monday through Friday or Saturday between 9 am and 1 pm. Thank you for calling. Have a Nice Day.

         Ms. Manopla pushed the number and spoke to a lady and who gave her the water test results. Ms. Manopla was advised if she wanted to receive more information about her water, she could schedule an in-home consultation and would receive “a gift card for participating.” Ms. Manopla recalled telling the representative she was not interested because of the cost. Atlantic Water disputes this point and testified that as with the initial testing, any additional testing that Atlantic Water might have performed at the Manoplas' home also would have been for free.

         Before the parties could finish their conversation, Ms. Manopla ended the call because a customer walked in to the store. Ms. Manopla asked the representative to call her back so that they could continue their discussion about the gift card.

         Following the first call, there were eight attempted call-backs between Ms. Manopla and Atlantic Water. None of the eight calls resulted in a person-to-person connection.

i. First attempted call-back: 1/7/15 at 5:24 p.m. This call was the result of Atlantic Water hand-dialing the Manoplas. The call lasted 2 seconds.
ii. Second attempt call-back: 1/7/15 at 7:58 p.m. This call was the result of the Manoplas calling Atlantic Water. The call reached the Atlantic Water voice mailbox 999 and lasted 58 seconds.
iii. Third attempted call-back: 1/7/15 at 8:00 p.m. This call was the result of the Manoplas calling Atlantic Water. The call reached Atlantic Water voice mailbox 206 and lasted 1 minute 37 seconds.
iv. Fourth attempted call-back: 1/8/15 at 11:44:05 a.m. This call was the result of Atlantic Water hand-dialing the Manoplas. This call lasted 5 seconds.
v. Fifth attempted call-back: 1/8/15 at 11:44:41 a.m. This call was the result of the Manoplas calling Atlantic Water. The call reached Atlantic Water voice mailbox 202 and lasted 55 seconds.
vi. Sixth attempted call-back: 1/8/15 at 4:15 p.m. This call was the result of Atlantic Water hand-dialing the Manoplas. The call lasted 3 seconds.
vii. Seventh attempted call-back: 1/9/15 at 9:52 a.m. This call was the result of the Manoplas calling Atlantic Water. The call reached Atlantic Water voice ...

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