United States District Court, D. Nevada
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).
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).
before the court is defendant's motion for
reconsideration. (ECF No. 29). Plaintiff filed a response.
(ECF No. 30).
instant action involves alleged violations of the Telephone
Consumer Protection Act, 47 U.S.C. § 227 et
seq. (the “TCPA”).
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).
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).
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).
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).
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
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.
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).
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.
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).
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).
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.
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.
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.
Motion for Reconsideration (ECF No. 29)
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).
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 ...