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Chaitovsky v. Williams Rush and Associates, LLC

United States District Court, D. New Jersey

April 30, 2018

ROCHEL CHAITOVSKY, Plaintiff,
v.
WILLIAMS RUSH AND ASSOCIATES, LLC, Defendants.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on Defendant Williams Rush and Associates, LLC's motion for summary judgment. (ECF No. 17). Plaintiff Rochel Chaitovsky[1] 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.

         Pursuant 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.

         I.

         In the 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 ¶¶28-29.

         The 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.[2] (Williams Affidavit at ¶¶4, 6, 9; Defendant SUMF at ¶4).

         Defendant 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 ¶¶6-8).

         II.

         Summary 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).

         Once 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").

         Moreover, 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. 2007).

         III.

         Plaintiff 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 ...

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