Strauss v. CBE Group, Inc.

173 F. Supp. 3d 1302, 2016 U.S. Dist. LEXIS 45085, 2016 WL 1273913
CourtDistrict Court, S.D. Florida
DecidedMarch 28, 2016
DocketCASE NO. 15-62026-CIV-COHN/SELTZER
StatusPublished
Cited by9 cases

This text of 173 F. Supp. 3d 1302 (Strauss v. CBE Group, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Strauss v. CBE Group, Inc., 173 F. Supp. 3d 1302, 2016 U.S. Dist. LEXIS 45085, 2016 WL 1273913 (S.D. Fla. 2016).

Opinion

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

JAMES I. COHN, United States District Judge

THIS CAUSE is before the Court upon Defendant’s Motion for Partial Summary Judgment [DE 54] and Plaintiff’s Motion for Partial Summary Judgment [DE 78] (collectively, “Motions”). The Court has reviewed the Motions, the responses and replies thereto, and the record in this case, and is otherwise advised in the premises. ■For the reasons stated below, the Court will grant in part and deny in part Plaintiffs Motion and grant Defendant’s Motion in its entirety.

I. BACKGROUND

This action arises out of a series of phone calls placed by Defendant The CBE Group, Inc. (“CBE”) to the cellular telephone (“cell phone”) number of Plaintiff S. Ryan Strauss. In April 2014, Defendant Verizon New England, Inc. (“Verizon”) re[1307]*1307ferred an account belonging to a third party to CBE for collection. CBE received Plaintiffs telephone number from Verizon and believed that the number belonged to the third-party debtor. Thereafter, CBE placed 26 telephone calls to Plaintiff between April and September 2014.1 Six of these calls were answered, and each time a CBE representative asked to speak with the third-party debtor by name. Plaintiff did not tell CBE that he was not the third-party debtor or that CBE had called the wrong number.

CBE admits that on April 14 and 15, 2014, it placed its first two calls to Plaintiff using a Noble Systems Predictive Dialer under the mistaken belief that the number was a landline. DE 100-1 ¶ 11. Before the third call on April 18, CBE identified the number as associated with a cell phone and placed the remaining 24 calls to Plaintiff using CBE’s Manual Clicker Application (“MCA”). In order to place a call using the MCA, at least as CBE has configured it, an agent must manually initiate the call by clicking a computer mouse or pressing a keyboard enter key. Id. ¶23. The MCA then uses a Noble Systems device to connect the call to a telephone earners’ network. Id. ¶ 27.

Plaintiff initiated this lawsuit against CBE on September 25, 2015, alleging violations of the Telephone Consumer Protection Act, 47 U.S. § 227, et seq. (“TCPA”) (Count I), the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”) (Count II), and the Florida Consumer Collection Practices Act, Fla. Stat. § 559, et seq. (“FCCPA”) (Count III).2 See DE 1. On February 4, 2016, CBE moved for partial summary judgment on Plaintiffs FDCPA and FCCPA claims, all TCPA claims premised on the 24 calls placed after April 15, 2014, and claims for “willful and knowing” violations of the TCPA. See DE 54. Thereafter, Plaintiff filed a Second Amended Complaint that added Verizon as a Defendant and sought to hold it vicariously liable for CBE’s alleged TCPA violations. See DE 62 ¶ 38. On February 26, 2016, Plaintiff filed his own Motion for Partial Summary Judgment'as to all three Counts of the Second Amended Complaint, but requested a jury trial on the issue of whether Defendants knowingly and willfully violated the TCPA. See DE 78 at 3.

II. LEGAL STANDARD

A district court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party “always bears the initial responsibility of informing the district court of the basis for its-motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To satisfy this burden, the movant must show- the court that “there is an absence of evidence to support the non-moving party’s case.” Id. at 325, 106 S.Ct. 2548.

After the movant has met its burden under Rule 56(a), the burden of production shifts, and the nonmoving party “must do more than simply show that [1308]*1308there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). As Rule 56 explains, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact ... the court may ., -. grant summary judgment -if the motion and .supporting materials — including the facts considered undisputed — show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3). Therefore, the nonmoving party “may not rest upon the mere allegations or.denials in its pleadings” but instead must present “specific facts showing, that there is a genuine issue for trial.” Walker v. Darby, 911 F.2d 1573, 1576-77 (11th Cir.1990). In deciding a summary-judgment motion, the Court must view the facts in the light most favorable to the nonmoving party. Davis v. Williams, 451 F.3d 759, 763 (11th Cir.2006).

III. DISCUSSION

Plaintiff and CBE both moved for partial summary judgment, arguing that there is no genuine dispute of material fact regarding Defendants’ liability under the TCPA or CBE’s liability under the FDCPA and FCCPA. With respect to the TCPA claim, the parties contest whether Verizon can be held vicariously liable for CBE’s alleged violations and whether- .CBE placed the 24 calls after April 15, 2014, using an “automatic telephone dialing system,” or “ATDS.” The parties also contest whether CBE’s debt-collection practices violate the FDCPA and FCCPA. The Court finds that summary judgment should be entered for Plaintiff and against only CBE on the TCPA' claims for calls placed on April 14 and 15, 2014. However, summary judgment shall be entered in Defendants’ favor on the remaining TCPA claims and in CBE’s favor on the FDCPA and FCCPA claims.

A. TCPA

The TCPA prohibits making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system ... to any telephone number assigned to a ... cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA’ creates a private right of action where a person may bring “an action to recover for actual monetary loss from such a violation,. or to receive $500 in damages for each such violation, whichever is greater.” Id. § 227(b)(3)(B).

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Bluebook (online)
173 F. Supp. 3d 1302, 2016 U.S. Dist. LEXIS 45085, 2016 WL 1273913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strauss-v-cbe-group-inc-flsd-2016.