Kerner v. Conserve

2017 DNH 117

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Shawn Kerner

v. Civil No. 16-cv-209-LM Opinion No. 2017 DNH 117 Conserve

Defendant Conserve moves for reconsideration of the court’s

order denying its motion for summary judgment on plaintiff Shawn

Kerner’s claim under the Telephone Consumer Protection Act (the

“TCPA”), 47 U.S.C. § 227. Kerner objects.

Legal Standard

Under the local rules of this district, a party may seek

reconsideration of an interlocutory order if it shows that the

order was based on “a manifest error of fact or law.” L.R.

7.2(d). “Reconsideration is an extraordinary remedy that is

used only sparingly.” William v. U.S. Bank, N.A., No. 16-cv-

141-JD, 2016 WL 6238516, at *1 (D.N.H. Oct. 25, 2016). A motion

for reconsideration “will generally be denied unless the moving

party can point to controlling decisions or data that the Court

overlooked and that might reasonably be expected to alter the

conclusion reached by the court.” United States ex rel. Williams

v. City of Brockton, No. 12-CV-12193-IT, 2016 WL 7428187, at *1

(D. Mass. Dec. 23, 2016). Moreover, “[a] motion for reconsideration is not intended to provide a party with a second

bite of the proverbial apple.” Id.

Conserve moves for reconsideration of the court’s order

denying its motion for summary judgment. Summary judgment is

appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movement is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“‘Material facts’ are those which might affect the outcome of

the suit under the governing law, and an issue is ‘genuine’ if

there is evidence that would allow a reasonable jury to find for

the non-moving party.” Audette v. Town of Plymouth, MA, --F.3d-

-, 2017 WL 2298070, at *5 (1st Cir. May 26, 2017) (internal

quotation marks omitted).

Background

Kerner’s TCPA claim arises under § 227(b), which makes it

unlawful for any person to call a cell phone using an automatic

telephone dialing system or an artificial or prerecorded voice

unless the call is “made for emergency purposes or made with the

prior express consent of the called party.” 47 U.S.C. §

227(b)(1)(A)(iii). Conserve moved for partial summary judgment

on Kerner’s TCPA claim, arguing that the summary judgment record

demonstrated that Kerner had given it consent to call her and

had reaffirmed that consent as recently as September 2015. In

2 response, Kerner submitted a declaration in which she stated

that she told Conserve to stop calling her in the spring of 2015

and that she repeated this request to Conserve representatives

“multiple times” thereafter. Based on her declaration, Kerner

argued that she had validly revoked any consent that she had

given Conserve to call her using automated means.

In its reply, Conserve argued that Kerner’s declaration was

not competent to oppose summary judgment because it was based on

“improbable inferences, conclusory allegations or rank

speculation” and lacked sufficient detail. In its order denying

Conserve’s summary judgment motion, the court determined that

Kerner’s declaration was admissible because it set forth

nonconclusory facts that were based on her personal knowledge.

The court also rejected Conserve’s argument, premised on Fleet

Nat’l Bank v. H & D Entm’t Inc., 96 F.3d 532, 540 (1st Cir.

1996), that Kerner’s declaration lacked sufficient detail. In

doing so, the court reasoned that unlike the affidavit in Fleet,

which asserted a conclusion based on certain discussions without

revealing the contents of those discussions, Kerner’s

declaration provided the specific statements on which she

relied.

3 Discussion

Affidavits or declarations “are effective in opposing

summary judgment only when they are given on personal knowledge,

set out facts that would be admissible in evidence, and show

that the affiant . . . is competent to testify about the matter

in question.” Garcia-Gonzalez v. Puig-Morales, 761 F.3d 81, 97

(1st Cir. 2014) (internal quotation marks omitted); Fed. R. Civ.

P. 56(c)(4) (“An affidavit or declaration used to support or

oppose a motion [for summary judgment] must be made on personal

knowledge, set out facts that would be admissible in evidence,

and show that the affiant or declarant is competent to testify

on the matters stated.”). Conserve contends that the court

erred in denying its summary judgment motion because (1) the

declaration was not detailed enough to be credited for summary

judgment purposes and (2) the declaration contradicted the

record evidence.

I. Declaration Particularity

Conserve asserts that the court committed a manifest error

of law because its order did not conform to the “legal principle

that statements predicated on undefined discussions with unnamed

individuals at unspecified times are insufficient to overcome

summary judgment.” Doc. no. 25-1. In support, Conserve cites

Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001).

4 This argument merely rehashes the same arguments that the

court rejected in its order denying Conserve’s motion for

summary judgment. In its summary judgment order the court

rejected Conserve’s argument that Kerner’s declaration was too

lacking in detail to be credited for summary judgment purposes.

Perez, which Conserve did not cite in its motion for summary

judgment, does not alter that conclusion.

In Perez, the plaintiffs brought suit against Volvo,

alleging that it had facilitated a fraudulent invoicing scheme

conducted by its exclusive importer for Puerto Rico. 247 F.3d

at 309. Volvo moved for summary judgment, and the plaintiffs

opposed the motion with the affidavit of a former owner of the

importer, who stated that based on “personal discussion with

various Volvo representatives,” he knew that Volvo “was fully

aware” of the fraudulent invoicing scheme. Id. at 316. Volvo

challenged the admissibility of the affidavit.

On appeal, the First Circuit held that the statements in

the affidavit were inadmissible. Id. In doing so, the court

observed that “personal knowledge” is the “touchstone” of the

admissibility analysis for summary judgment affidavits. Id. at

315. Nevertheless, the court concluded that even though the

affidavit “purported to be based on personal knowledge,” it was

not specific enough to support the statements contained therein

because it was “totally lacking in specificity about the

5 identity of the ‘Volvo representatives’ with whom Gonzalez

ostensibly spoke, when those alleged conversations occurred,

what was said, how Volvo ‘knew’ [about the fraudulent scheme]

and how Gonzalez ‘knew’ the extent of Volvo’s knowledge.” Id.

at 316. The court further observed that “[s]tatements

predicated upon undefined discussions with unnamed persons at

unspecified times are simply too amorphous to satisfy the

requirements of Rule 56(e), even when proffered in affidavit

form by one who claims to have been a participant.” Id.

(emphasis added).

Perez is inapplicable to this case for the same reasons

that the court found Fleet inapplicable. In both cases, parties

sought to avoid summary judgment based on conclusory and vague

assertions about conversations with third parties without

providing any specific facts supporting those assertions,

including the actual content of the statements at issue. In

this case, Kerner states that she received a number of calls

from Conserve’s representatives and provides the telephone

numbers from which those calls came. Moreover, Kerner asserts

the specific content of what she told Conserve’s representatives

and provides the rough time-frame for when those conversations

occurred. Given that defendant itself has acknowledged that its

representatives called Kerner on multiple occasions, the

conversations are not the type of “undefined discussions” at

6 issue in Perez. Doc. no. 29 at 4 (noting that multiple

conversations are identified in its account notes).

Nevertheless, Conserve contends that Kerner’s failure to

provide the exact dates of the telephone conversations and the

names of the representatives with whom she spoke renders her

declaration inadmissible. The court disagrees. The summary

judgment record already contains the very information that

Conserve contends makes Kerner’s declaration deficient. In

support of its motion for summary judgment, Conserve attached

detailed account notes concerning its management of Kerner’s

account. Those notes document the time and date of the calls

that Conserve representatives had with Kerner, see doc. no. 10

at 9, and appear to identify the Conserve representative making

those calls. Armed with this information, Conserve fails to

cite any evidence showing that Kerner did not have discussions

with its representatives after she affirmed her consent in

September 2015. Given this context, Kerner’s declaration does

not lack the requisite detail to be admissible for summary

judgment.

II. Declaration Contradicts the Record

Conserve also contends that the declaration should not be

credited because it contradicts the record. In support,

Conserve points to its account notes, none of which, it argues,

7 states that Kerner revoked her consent during the calls.

Conserve has presented no evidence that it was its business

practice to record revocations of consent in the account notes.

Therefore, the absence of such information in the account notes

is not evidence concerning revocation. Moreover, even if such a

contradiction existed, it would not be sufficient for the court

to disregard Kerner’s declaration. In essence, such a conflict

amounts to a discrepancy between Conserve’s employees’ account

of the telephone calls and Kerner’s account of those same calls.

A reasonable jury could believe either of these narratives, and

it is not the role of the court at this stage to make such a

determination. Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d

206, 217 (1st Cir. 2016) (“Credibility determinations are for

the factfinder at trial, not for the court at summary

judgment.”).1

1 Conserve cites TCPA cases in which, it contends, courts have refused to consider similar affidavits. In those cases, however, the plaintiff’s affidavit was contradicted by either incontrovertible evidence in the record or the plaintiff’s own discovery responses. See Haysbert v. Navient Sols., Inc., No. CV 15-4144 PSG (EX), 2016 WL 890297, at *9 (C.D. Cal. Mar. 8, 2016) (declaration conflicted with plaintiff’s earlier interrogatory response); Cherkaoui v. Santander Consumer USA, Inc., 32 F. Supp. 3d 811, 814-15 (S.D. Tex. 2014) (account notes demonstrated that plaintiff had not spoken to representative, contradicting his assertion that he revoked consent). There is no incontrovertible evidence in the summary judgment record demonstrating that Kerner did not revoke consent.

8 Conclusion

For the foregoing reasons, Conserve’s motion for

reconsideration (doc. no. 25) is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge June 12, 2017

cc: Charles W. Grau, Esq. Brendan H. Little, Esq. Angela K. Troccoli, Esq.