NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 19-2265 _____________
JAMES EVERETT SHELTON,
v.
FAST ADVANCE FUNDING, LLC, Appellant _____________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cv-02071) District Judge: Hon. Chad F. Kenney ______________
Submitted Under Third Circuit L.A.R. 34.1(a) January 17, 2020 ______________
Before: JORDAN, GREENAWAY JR., and KRAUSE, Circuit Judges.
(Opinion Filed: March 3, 2020) ______________
OPINION* ______________
GREENAWAY, JR., Circuit Judge.
We must decide whether, in the circumstances of this case, the District Court
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. abused its discretion in deciding that requests for admission served fewer than thirty days
before the close of discovery were deemed admitted when the party to whom the requests
were directed failed to make any response. We must also decide whether the District
Court erred in deciding that a plaintiff has standing under the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227, when he has received unsolicited
telemarketing calls on his personal phone.
For the reasons set forth below, we will affirm.
I. BACKGROUND
Plaintiff-Appellee James Everett Shelton (“Shelton”) sued Defendant-Appellant
Fast Advance Funding, LLC (“FAF”) for violations of the TCPA in the Eastern District of
Pennsylvania. He claimed that FAF called his cell phone twenty-two times for
telemarketing even though his phone number is on the National Do Not Call Registry and
Shelton had previously requested that he not receive such calls from FAF.
The TCPA prohibits “any person within the United States” from making calls “using
any automatic telephone dialing system or an artificial or prerecorded voice” to a telephone
number assigned to a “cellular telephone service.” 47 U.S.C. § 227(b)(1). The TCPA also
prohibits calls to any subscriber on the do-not-call database. 47 U.S.C. § 227(c)(3)(F). Its
implementing regulations require entities making telemarketing calls to have a written
policy for maintaining a do-not-call list and that those entities honor residential telephone
subscribers’ requests that the entity not call them. 47 C.F.R. § 64.1200(d)(1) & (3).
Shelton served Requests for Admission on FAF on February 11, 2019. FAF never
responded to the request. Discovery closed on March 1, 2019. Since FAF never responded,
2 Shelton filed a motion in limine to prevent FAF from offering testimony or evidence
contrary to the Request for Admissions. FAF opposed the motion and argued that it did
not need to respond to the Request, as discovery closed before the response deadline. The
District Court granted Shelton’s motion in limine.
On April 29, 2019, FAF filed an additional proposed jury instruction stating that
Shelton lacked standing under the TCPA because he used his cellphone for both personal
and business purposes. On the same day, Shelton filed a motion to strike the proposed
instruction. On May 1, 2019, the morning of trial, FAF sought to depose Shelton on this
issue. FAF made this request because, in another case in the Eastern District of
Pennsylvania, Shelton had admitted that he used his cellphone for both purposes. That
case, Shelton v. Target Advance LLC, 2:18-cv-2070, was before Judge Quiñones
Alejandro. The court in Target Advance decided that Shelton did not have standing to
bring suit under § 227(c)(3)(F) because business numbers may not be registered on the
National Do Not Call Registry.
The District Court denied FAF’s eleventh hour request to take additional discovery
and denied Shelton’s motion to strike as moot. The Requests for Admission were deemed
admitted when the court granted Shelton’s motion in limine. As a result, there were no
outstanding questions of fact. Relying on the Requests for Admission, the District Court
effectively granted partial summary judgment and decided that Shelton had standing under
the TCPA: “This Court determined that, because the Requests for Admission were deemed
admitted, Defendant had admitted that Plaintiff’s cell phone was a ‘personal cellular
telephone,’ . . . . Plaintiff has standing in this matter.” JA157–58. In light of this ruling,
3 the parties agreed that there were no issues for the jury, and that the court should decide
whether FAF’s violations of the TCPA were willful and knowing.1 The District Court
issued findings of fact and conclusions of law and entered a verdict in favor of Shelton.
This appeal on the grant of the motion in limine and essentially partial summary judgment
followed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review rulings on the admissibility of
evidence for abuse of discretion. See Forrest v. Parry, 930 F.3d 93, 113 (3d Cir. 2019).
We review a district court’s decision on a party’s standing to assert a federal claim de novo.
See Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450, 454 (3d Cir. 2003).
III. DISCUSSION
A. The District Court’s Grant of Shelton’s Motion in Limine
FAF first argues that the District Court erred in granting Shelton’s motion in limine.
FAF contends that it was not obliged to respond to Shelton’s requests for admission
because the deadline to respond was after the close of discovery. Under these
circumstances, we disagree.
Federal Rule of Civil Procedure 36 governs requests for admission. Nothing in that
rule provides that a party may ignore requests if the responses are due after the close of
discovery. The rule states only: “A matter is admitted unless, within 30 days after being
1 FAF has not appealed the District Court’s damages determination. 4 served, the party to whom the request is directed serves on the requesting party a written
answer or objection addressed to the matter and signed by the party or its attorney.” Fed.
R. Civ. P. 36(a)(3). Although “[a] shorter or longer time for responding may be stipulated
to under Rule 29 or be ordered by the court,” id., neither happened here.
We have recognized that requests for admission are distinct from other discovery
devices, and that a party can still be obliged to respond to a request for admission even
after the close of discovery:
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 19-2265 _____________
JAMES EVERETT SHELTON,
v.
FAST ADVANCE FUNDING, LLC, Appellant _____________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cv-02071) District Judge: Hon. Chad F. Kenney ______________
Submitted Under Third Circuit L.A.R. 34.1(a) January 17, 2020 ______________
Before: JORDAN, GREENAWAY JR., and KRAUSE, Circuit Judges.
(Opinion Filed: March 3, 2020) ______________
OPINION* ______________
GREENAWAY, JR., Circuit Judge.
We must decide whether, in the circumstances of this case, the District Court
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. abused its discretion in deciding that requests for admission served fewer than thirty days
before the close of discovery were deemed admitted when the party to whom the requests
were directed failed to make any response. We must also decide whether the District
Court erred in deciding that a plaintiff has standing under the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227, when he has received unsolicited
telemarketing calls on his personal phone.
For the reasons set forth below, we will affirm.
I. BACKGROUND
Plaintiff-Appellee James Everett Shelton (“Shelton”) sued Defendant-Appellant
Fast Advance Funding, LLC (“FAF”) for violations of the TCPA in the Eastern District of
Pennsylvania. He claimed that FAF called his cell phone twenty-two times for
telemarketing even though his phone number is on the National Do Not Call Registry and
Shelton had previously requested that he not receive such calls from FAF.
The TCPA prohibits “any person within the United States” from making calls “using
any automatic telephone dialing system or an artificial or prerecorded voice” to a telephone
number assigned to a “cellular telephone service.” 47 U.S.C. § 227(b)(1). The TCPA also
prohibits calls to any subscriber on the do-not-call database. 47 U.S.C. § 227(c)(3)(F). Its
implementing regulations require entities making telemarketing calls to have a written
policy for maintaining a do-not-call list and that those entities honor residential telephone
subscribers’ requests that the entity not call them. 47 C.F.R. § 64.1200(d)(1) & (3).
Shelton served Requests for Admission on FAF on February 11, 2019. FAF never
responded to the request. Discovery closed on March 1, 2019. Since FAF never responded,
2 Shelton filed a motion in limine to prevent FAF from offering testimony or evidence
contrary to the Request for Admissions. FAF opposed the motion and argued that it did
not need to respond to the Request, as discovery closed before the response deadline. The
District Court granted Shelton’s motion in limine.
On April 29, 2019, FAF filed an additional proposed jury instruction stating that
Shelton lacked standing under the TCPA because he used his cellphone for both personal
and business purposes. On the same day, Shelton filed a motion to strike the proposed
instruction. On May 1, 2019, the morning of trial, FAF sought to depose Shelton on this
issue. FAF made this request because, in another case in the Eastern District of
Pennsylvania, Shelton had admitted that he used his cellphone for both purposes. That
case, Shelton v. Target Advance LLC, 2:18-cv-2070, was before Judge Quiñones
Alejandro. The court in Target Advance decided that Shelton did not have standing to
bring suit under § 227(c)(3)(F) because business numbers may not be registered on the
National Do Not Call Registry.
The District Court denied FAF’s eleventh hour request to take additional discovery
and denied Shelton’s motion to strike as moot. The Requests for Admission were deemed
admitted when the court granted Shelton’s motion in limine. As a result, there were no
outstanding questions of fact. Relying on the Requests for Admission, the District Court
effectively granted partial summary judgment and decided that Shelton had standing under
the TCPA: “This Court determined that, because the Requests for Admission were deemed
admitted, Defendant had admitted that Plaintiff’s cell phone was a ‘personal cellular
telephone,’ . . . . Plaintiff has standing in this matter.” JA157–58. In light of this ruling,
3 the parties agreed that there were no issues for the jury, and that the court should decide
whether FAF’s violations of the TCPA were willful and knowing.1 The District Court
issued findings of fact and conclusions of law and entered a verdict in favor of Shelton.
This appeal on the grant of the motion in limine and essentially partial summary judgment
followed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review rulings on the admissibility of
evidence for abuse of discretion. See Forrest v. Parry, 930 F.3d 93, 113 (3d Cir. 2019).
We review a district court’s decision on a party’s standing to assert a federal claim de novo.
See Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450, 454 (3d Cir. 2003).
III. DISCUSSION
A. The District Court’s Grant of Shelton’s Motion in Limine
FAF first argues that the District Court erred in granting Shelton’s motion in limine.
FAF contends that it was not obliged to respond to Shelton’s requests for admission
because the deadline to respond was after the close of discovery. Under these
circumstances, we disagree.
Federal Rule of Civil Procedure 36 governs requests for admission. Nothing in that
rule provides that a party may ignore requests if the responses are due after the close of
discovery. The rule states only: “A matter is admitted unless, within 30 days after being
1 FAF has not appealed the District Court’s damages determination. 4 served, the party to whom the request is directed serves on the requesting party a written
answer or objection addressed to the matter and signed by the party or its attorney.” Fed.
R. Civ. P. 36(a)(3). Although “[a] shorter or longer time for responding may be stipulated
to under Rule 29 or be ordered by the court,” id., neither happened here.
We have recognized that requests for admission are distinct from other discovery
devices, and that a party can still be obliged to respond to a request for admission even
after the close of discovery:
[R]equests for admission typically come late in discovery, or even after discovery has been completed and trial is imminent. If at that point a party is served with a request for admission of a fact that it now knows to be true, it must admit that fact, even if that admission will gut its case and subject it to summary judgment. That is what Rule 36 was intended to do—narrow the issues for trial, or even altogether obviate the need for trial.
Langer v. Monarch Life Ins. Co., 966 F.2d 786, 803 (3d Cir. 1992).
The District Court was therefore within its discretion in granting Shelton’s motion
in limine. “Matters deemed admitted due to a party’s failure to respond to requests for
admission are conclusively established under Federal Rule of Civil Procedure 36(b) . . . .
An admission is therefore an unassailable statement of fact and is binding on the non-
responsive party unless withdrawn or amended.” Sec’y U.S. Dep’t of Labor v. Kwasny,
853 F.3d 87, 91 (3d Cir. 2017) (internal quotation marks and citations omitted).
B. The District Court’s Determination That Shelton Had Standing
FAF also argues that Shelton did not have standing under the TCPA because, in
Target Advance, Shelton admitted that he used his cellphone for both business and personal
5 purposes. In contrast, here, there was no evidence in the record before the District Court
that Shelton used his cellphone for business.
Since Defendant did not participate in discovery or respond to Shelton’s Requests
for Admission, the District Court did not err in determining that Shelton had standing.
Target Advance presented a different record. In that case, the parties did exchange
discovery. Most important, there was evidence in Target Advance that Shelton used the
number “for personal matters and for a business he owns called Final Verdict Solutions”
and that the telemarketing calls he received were related to that business. JA71.
But as the District Court here noted, there is “no evidence of Plaintiff’s business in
the record[.]” JA157 n.2. By failing to respond to Shelton’s Requests for Admission,
Defendant effectively admitted all allegations in Shelton’s complaint. The Complaint
repeatedly states that Shelton’s cell phone was a “personal cellular telephone” that Shelton
“used for personal purposes.” Shelton v. Fast Advance Funding, LLC, 2:18-cv-2071, Doc.
No. 1, ¶¶ 20, 50. The Complaint does not refer to Shelton’s business. On the record
presented, there is no evidence that Shelton used his cellphone for business purposes. The
District Court therefore correctly decided that Shelton had standing to bring suit under the
TCPA.
IV. CONCLUSION
For the reasons set forth above, we will affirm.