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Self-Forbes v. Advanced Call Center Technologies, LLC

United States District Court, D. Nevada

April 12, 2017

KARMEN SELF-FORBES, Plaintiffs,
v.
ADVANCED CALL CENTER TECHNOLOGIES, LLC, Defendants.

          ORDER

         Presently before the court is defendant Advanced Call Center Technologies, LLC's motion for summary judgment. (ECF No. 9). Plaintiff Karmen Self-Forbes filed a response (ECF No. 12), to which defendant replied (ECF No. 14).

         Also before the court is plaintiff's motion for summary judgment. (ECF No. 17). Defendant filed a response (ECF No. 19), to which plaintiff replied (ECF No. 22).

         Also before the court is defendant's motion for reconsideration. (ECF No. 29). Plaintiff filed a response. (ECF No. 30).

         I. Facts

         The instant action involves alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (the “TCPA”).

         In January 2012, plaintiff applied for a GE Money Bank QVC credit card account, which GE Money Bank d/b/a Synchrony Bank approved. Thereafter, plaintiff allegedly defaulted on her credit card payments. (ECF No. 9). On January 3, 2013, GE Money Bank assigned plaintiff's account to defendant to attempt to collect the unpaid balance. (ECF No. 9). Between January 3 and April 26, 2013, defendant placed 530 calls to plaintiff's cellular phone number. (ECF Nos. 9, 17).

         Plaintiff asserts that defendant knowingly, and or willfully, placed automated calls to her cell phone without her consent in violation of the TCPA. (ECF No. 1). According to the complaint, plaintiff received over 100 calls from defendant from the phone number (866)-445-6548 within four years prior to filing the underlying complaint. (ECF No. 1 at 4). Plaintiff alleges that defendant employs an Automatic Telephone Dialing System (“ATDS”) as defined by 47 U.S.C. § 227(a)(1). (ECF No. 1). Plaintiff further alleges that 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). (ECF No. 1). Plaintiff asserts that she instructed defendant or its agent(s) not to call her cell phone, revoking consent. (ECF No. 1).

         On May 16, 2016, plaintiff filed the underlying complaint alleging two claims for relief: (1) negligent violations of the TCPA; and (2) knowing and/or willful violations of the TCPA. (ECF No. 1). Plaintiff seeks statutory damages of $500.00 and treble damages of up to $1, 500.00 for each and every call violation. (ECF No. 1).

         On December 27, 2016, plaintiff moved to strike exhibits 1 and 2 to defendant's motion for summary judgment (ECF No. 9) and exhibit 1 to defendant's reply in support of its motion for summary judgment (ECF No. 14). (ECF No. 16). Exhibit 1 is the QVC account record of plaintiff's credit card application (the “application”), and exhibit 2 is a copy of the QVC card member agreement (the “agreement”). (ECF No. 9, exhs. 1, 2). On February 6, 2017, defendant moved to reopen discovery for the limited purpose of authenticating exhibits 1 and 2 to its motion for summary judgment. (ECF No. 23).

         On March 16, 2017, the magistrate judge granted in part plaintiff's motion to strike as to exhibits 1 and 2 to defendant's motion for summary judgment. (ECF No. 28). Finding that “Orr [v. Bank of Am., NT & SA, 285 F.3d 764 (9th Cir. 2002)] is the controlling precedent in this circuit[, ]” the magistrate judge struck exhibits 1 and 2, concluding that defendant's motion for summary judgment failed to lay a foundation for the authenticity of these exhibits. (ECF No. 28). In that same order, the magistrate judge denied defendant's motion to reopen discovery as untimely and found that defendant failed to show good cause or excusable neglect for failure to timely file the motion. (ECF No. 28 at 15).

         In the instant motions, defendant moves for summary judgment in its favor and for reconsideration of the magistrate judge's March 16th order (ECF Nos. 9, 29), and plaintiff moves for summary judgment in her favor (ECF No. 17). The court will address each as it sees fit.

         II. Legal Standard

         The Federal Rules of Civil Procedure allow summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         For purposes of summary judgment, disputed factual issues should be construed in favor of the non-moving party. Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be entitled to a denial of summary judgment, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Id.

         In determining summary judgment, a court applies a burden-shifting analysis. The moving party must first satisfy its initial burden. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).

         By contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the non-moving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).

         If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

         In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex, 477 U.S. at 324.

         At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See Id. at 249-50.

         III. Discussion

         A. Motion for Reconsideration (ECF No. 29)

         “A district judge may reconsider any pretrial matter referred to a magistrate judge in a civil or criminal case under LR IB 1-3, when it has been shown the magistrate judge's order is clearly erroneous or contrary to law.” LR IB 3-1(a). The district judge may affirm, reverse, or modify, in whole or in part, the magistrate judge's order, as well as remand with instructions. LR IB 3-1(b).

         In the motion to strike, plaintiff asserts that the motion is brought pursuant to Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1003 (9th Cir. 2002), which provides that to preserve evidentiary objections, a party must either move to strike or otherwise lodge an objection with the court. (ECF No. 16 at 3). Pfingston, however, is distinguishable as it involved preserving a hearsay objection as to a ...


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