United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on Defendant Williams Rush and
Associates, LLC's motion for summary judgment. (ECF No.
17). Plaintiff Rochel Chaitovsky asserts that Defendant
Williams Rush and Associates, LLC violated the Telephone
Consumer Protection Act ("TCPA") and the Fair Debt
Collections Protections Act ("FDCPA") in the course
of making multiple calls to Plaintiff via an automatic
telephone dialing system. At oral argument, Plaintiff
withdrew the FDCPA claim.
to Local Civil Rule 56.1(a), Defendant Williams submitted a
statement of undisputed material facts (ECF No. 17-3). In
contrast, Plaintiff failed to submit a responsive statement
of material facts or any supporting papers. (Opposition Brief
at 1-2, ECF No. 19). Thus, in accordance with Fed.R.Civ.P.
56(e)(2-3) and Local Civil Rule 56.1(a), this Court accepts
Defendant's submitted facts, supported by affidavit and
exhibits, as true.
Complaint, Plaintiff alleges that after purchasing a cellular
telephone with the assigned number of ***-***-8018 ("the
8018 number") in September of 2013, she began receiving
telephone calls from the Defendant via an automated dialing
system. (Complaint, ECF No. 1 at ¶23-24). Plaintiff
alleges that the telephone calls were originating from the
phone numbers 361-237-1102 and 855-869-9847 (collectively
"the Williams numbers"). (Id. at
¶25). Despite these attempts, Plaintiffs alleges that
she received over two hundred calls from the Williams numbers
beginning in 2013 and through 2015. Id. at
statement of undisputed material facts is far different from
the allegations in the Complaint. Defendant confirms multiple
calls were made from the Williams numbers. (Defendant SUMF at
¶2, ECF No. 17-3). Admittedly, Defendant made calls to
the 8018 number in trying to reach Janet Rodriguez, a third
party. (Defendant SUMF at ¶¶l-3). Defendant further
asserts that no calls made to the 8018 number were placed by
an automated dialer. (Williams Affidavit at ¶8;
Defendant SUMF at ¶5). Defendant instead posits that
only five voice messages were ever left on the 8018 number,
and that all five messages were left by live agents, the date
and full transcript of each message is recited in their
submitted affidavit. (Williams Affidavit at ¶¶4, 6,
9; Defendant SUMF at ¶4).
also asserts that on the limited occasions calls were made to
the 8018 number, no pre-recorded messages were ever left, not
once was payment requested for any obligation on the
Plaintiffs part, and all calls were made seeking to reach
Janet Rodriguez, not the Plaintiff. (Defendant SUMF at
judgment is appropriate under Fed.R.Civ.P. 56(c) when the
moving party demonstrates that there is no genuine issue of
material fact and the evidence establishes the moving
party's entitlement to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A factual dispute is genuine if a reasonable jury
could return a verdict for the non-movant, and it is material
if, under the substantive law, it would affect the outcome of
the suit. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence "is to be
believed and all justifiable inferences are to be drawn in
his favor." Marino v. Indus. Crating Co., 358
F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477
U.S. at 255).
the moving party has satisfied its initial burden, the party
opposing the motion must establish that a genuine issue as to
a material fact exists. Jersey Cent. Power & Light
Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985).
The party opposing the motion for summary judgment cannot
rest on mere allegations and instead must present actual
evidence that creates a genuine issue as to a material fact
for trial. Anderson, 477 U.S. at 248; Siegel
Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125,
1130-31 (3d Cir. 1995). "[Unsupported allegations... and
pleadings are insufficient to repel summary judgment."
Schoch v. First Fid. Bancorp., 912 F.2d 654, 657 (3d
Cir. 1990); see also Fed. R. Civ. P. 56(e)
(requiring nonmoving party to "set forth specific facts
showing that there is a genuine issue for trial").
only disputes over facts that might affect the outcome of the
lawsuit under governing law will preclude the entry of
summary judgment. Anderson, 477 U.S. at 247-48. If a
court determines, "after drawing all inferences in favor
of [the non-moving party], and making all credibility
determinations in his favor...that no reasonable jury could
find for him, summary judgment is appropriate."
Alevras v. Tacopina, 226 Fed.Appx. 222, 227 (3d Cir.
alleges that Defendant violated 47 U.S.C. §
27(b)(A)(iii) when Defendant used an automated dialing system
to make multiple calls to the 8018 number between 2013 and
the present (Complaint at ¶32-37; Opposition Brief at
1-2). The relevant statute reads in part:
It shall be unlawful for any person within the United States,
or any person outside the United States if the recipient is