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Self-Forbes v. Advanced Call Center Technologies, LLC

United States District Court, D. Nevada

March 16, 2017

KARMEN SELF-FORBES, Plaintiff,
v.
ADVANCED CALL CENTER TECHNOLOGIES, LLC, Defendant.

          ORDER (MOT STRIKE - ECF NO. 16) (MOT REOPEN - ECF NO. 23)

          PEGGY A. LEEN, UNITED STATES MAGISTRATE JUDGE

         Before the court is Plaintiff's Motion to Strike Defendant's Exhibits “1” and “2” in Support of its Motion for Summary Judgment and to Strike Defendant's Exhibit “2” in its Reply in Support of its Motion for Summary Judgment (ECF No. 16). The court has considered the Motion, defendant's Response (ECF No. 18), plaintiff's Reply (ECF No. 20), and the arguments of counsel at a hearing held on February 14, 2017. David Krieger and Rachel Saturn appeared on behalf of Plaintiff, and Bill Ebert appeared on behalf of Defendant. Also before the court is Defendant Advanced Call Center Technologies, LLC's Motion to Reopen Discovery for a Limited Purpose (ECF No. 23). The court has considered the Motion, Plaintiff's Opposition (ECF No. 24), and Defendant's Reply (ECF No. 26), which was filed two days after the hearing. The court took both matters under submission indicating a written order would issue.

         BACKGROUND

         I. The Complaint

         The Complaint (ECF No. 1) in this case was filed May 16, 2016. It asserts claims arising out of alleged violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq. Plaintiff asserts the defendant knowingly, and or willfully placed automated calls to her cell phone without consent in violation of the TCPA. Plaintiff claims that in the 4 years prior to filing the complaint, she received over 100 calls from the defendant from a phone number specified in the complaint. Complaint, ¶21. Upon information and belief defendant employs an Automatic Telephone Dialing System (“ATDS”) as defined by 47 U.S.C. § 227(a)(1). Id. ¶22. Defendant or its agent(s) contacted plaintiff on her cell phone via an ATDS in violation of 47 U.S.C. § 227(b)(1)(A). Id. ¶23. Plaintiff instructed defendant or its agent(s) not to call her cell phone ever again, revoking consent, if she ever provided consent, to be contacted via an ATDS. Id. ¶24.

         Plaintiff also alleges defendant negligently placed multiple automated calls to cellphone numbers belonging to her without her prior express consent in violation of the TCPA. The complaint seeks injunctive relief prohibiting violations of the TCPA by defendant in the future; statutory damages of $500 for each and every call in violation of the TCPA as authorized by 47 U.S.C. § 227(b)(3)(B); treble damages of up to $1, 500 for each and every call in violation of the TCPA as authorized by statute; attorney's fees and costs; and such other relief the court deems just and appropriate.

         II. Procedural History

         Plaintiff filed her Complaint (ECF No. 1) May 16, 2016. Defendant Advanced Call Center Technologies, LLC (“ACT”) filed its Answer (ECF No. 4) June 28, 2016. The parties submitted a proposed Discovery Plan and Scheduling Order (ECF No. 6) which the court entered as its Scheduling Order (ECF No. 7) on July 21, 2016. The discovery plan and scheduling order established a December 26, 2016 discovery cutoff, and January 24, 2017 deadline for filing dispositive motions. ACT filed its first Motion for Summary Judgment (ECF No. 9) on October 6, 2016. Plaintiff filed her Response (ECF No. 12) to the motion for summary judgment on October 31, 2016, and ACT filed its Reply (ECF No. 14) on November 17, 2016. The court granted the parties' Stipulation (ECF No. 13) to extend the deadline to disclose rebuttal expert witnesses in an Order (ECF No. 15) entered November 18, 2016. The stipulation and order extended the deadline for defendant to disclose a rebuttal expert until December 9, 2016. No other extensions of the discovery plan and scheduling order deadlines were requested.

         Plaintiff filed a motion to strike and a motion for summary judgment on December 27, 2016, the day after the deadline for completing discovery.

         III. Motion to Strike

         In plaintiff's motion to strike, she seeks to strike Exhibits 1 and 2 which ACT submitted in support of its October 6, 2016 Motion for Summary Judgment (ECF No. 9). Exhibit 1 is an unauthenticated account record purportedly maintained by QVC or Synchrony Bank. Exhibit 2 is an unauthenticated card member agreement purportedly created by QVC or Synchrony Bank. Counsel for plaintiff took the deposition of Defendant's Rule 30(b)(6) designee, Marc Keller, on November 11, 2015. At his deposition, Mr. Keller admitted these two exhibits were not generated or created by ACT and were merely provided to ACT by third parties. Mr. Keller had no personal knowledge about the truthfulness of the information contained in these exhibits, or how the information was obtained. As of the date the motion to strike was filed, ACT had not provided any testimony authenticating the two exhibits by affidavit from the Custodian of Records or any other form of testimonial evidence indicating the exhibits were prepared by a person with knowledge of the information. Plaintiff asserts ACT has failed to present any evidence to indicate the documents are trustworthy or qualify as business records under Fed.R.Evid. 803(b).

         Additionally, plaintiff seeks an order striking Exhibit 2 from defendant's Reply (ECF No. 14) to its motion for summary judgment on the grounds the exhibit consists of a self-serving declaration made by an employee of defendant. Plaintiff argues the declaration was deliberately omitted from defendant's motion for summary judgment to deprive her of an opportunity to oppose the allegations made in the declaration. The declaration is therefore “withheld and new evidence” not included in the original motion for summary judgment which should be stricken, along with any argument relating to it.

         Citing Orr v. Bank of America, 285 F.3d 764');">285 F.3d 764 (9th Cir. 2002) Plaintiff argues that authentication is a condition precedent to admissibility. The proponent has the burden of establishing that a document is what it purports to be. Id. Unauthenticated documents may not be considered in a motion for summary judgment. Although Fed.R.Evid. 803(6) permits authentication of business records by live testimony or self-authentication under Fed.R.Evid. 902(11), neither form of authentication is present here. Fed. R. Evid 902(11) outlines what a custodian or other qualified witness must aver in submitting a declaration to qualify as business records. In this case, the defendant failed to provide a declaration from either a custodian or other qualified witness to authenticate the exhibits at issue which were submitted in connection with the summary judgment motion. The documents are therefore inadmissible, and may not be relied upon in deciding the motion for summary judgment.

         There is no evidence from the custodian of records from either QVC or Synchrony Bank that the documents were kept in the regular course of business, or other testimony regarding the policies and procedures used to input customer information into the computer database generating the documents. Without declarations or testimony from these non-parties, the records are not properly authenticated or admissible under the business records exception to the hearsay rule and should therefore be stricken. Exhibit 1 to the motion for summary judgment is allegedly a computer screenshot from QVC regarding information purportedly input into QVC's database by one or more of its employees. There is no competent admissible evidence about the computer hardware or software to show that what is presented is accurate. Defendant has also not provided any evidence regarding who input the information, when it was input, whether it was changed or modified, and how the information was obtained. Exhibit 1 therefore has no indicia of trustworthiness, has not been properly authenticated and should be deemed inadmissible. Exhibit 2 is also not a business record of the defendant. Exhibit 1 purports to be a QVC credit card agreement. At his deposition, Mr. Keller acknowledged that he did not know who created the document, that it was an assumption on his part who created it, and that he did not know how the document was stored before it came into ACT's possession. He admitted that he did not know anything about how the document was created at all.

         Plaintiff argues that the court should strike the declaration attached as Exhibit 2 to defendant's reply in support of its motion for summary judgment on several grounds. First, the declaration should have been proffered with the motion for summary judgment because all of the information contained in the declaration was available to ACT when it filed the motion for summary judgment. Defendant should be precluded from offering new evidence or arguments in a reply not raised in the original motion. Allowing ACT to submit the declaration in a reply would deprive plaintiff of a fair opportunity to respond to the allegations contained in it. Second, ACT should be precluded from introducing evidence withheld in its initial disclosures that was available to it at the time the motion for summary judgment was filed. Plaintiff emphasizes that ACT did not even disclose the person who prepared the ...


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