United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT JUDGE
before the Court are the Motions for Summary Judgment, (ECF
Nos. 23, 24), filed by Plaintiff Charles Singer
(“Plaintiff) and Defendant Las Vegas Athletic Clubs
(“LVAC”). Plaintiff and LVAC filed Responses,
(ECF Nos. 28, 29), as well as Replies, (ECF Nos. 32, 33), in
support of their respective Motions.
pending before the Court are the fully briefed Motions to
Amend Complaint and to Stay the Case, (ECF Nos. 22, 37),
filed by Plaintiff and LVAC, respectively.
reasons discussed below, Plaintiffs Motion for Summary
Judgment is GRANTED in part and
DENIED in part; LVAC's Motion for
Summary Judgment is DENIED; Plaintiff's
Motion to Amend is DENIED; and LVAC's
Motion to Stay is DENIED.
case arises from LVAC's alleged violations of the
Telephone Consumer Protection Act, 47 U.S.C. § 227 (the
“TCPA”) by way of its efforts to collect
Plaintiff's unpaid gym membership dues. In 2015,
Plaintiff signed a gym membership agreement (the
“Membership Agreement”) with LVAC under which
Plaintiff agreed to pay $23.00 per month in exchange for
access to LVAC's fitness facilities. (See
Membership Agreement, Ex. 1-B to LVAC's MSJ, ECF No.
24-1). By signing the Membership Agreement, Plaintiff
authorized LVAC to contact him on the cell phone number he
provided, and to do so “by any method, including use of
a predictive dialer.” (Id.). The Membership
Agreement also states: “This Contract may be modified
only by an instrument in writing.” (Id.).
October 8, 2016, after Plaintiff defaulted on his monthly
dues, LVAC initiated debt collection associated with
Plaintiffs account. (LVAC Decl. ¶ 12, Ex. 1 to
LVAC's MSJ, ECF No. 24-1). To effectuate its debt
collection, LVAC agents are licensed to use computerized
telephone software designed by Nuxiba Technologies, Inc.
(“Nuxiba”). (Nuxiba Decl. ¶ 2, Ex. 2 to
LVAC's MSJ, ECF No. 24-2). The Nuxiba system operates by
dialing phone numbers from a list “loaded into the
system by an LVAC system administrator, ” and
connecting available LVAC agents to live calls. (Id.
¶ 4); (LVAC's 30(b)(6) Dep. 23:7-16, Ex. 2 to
Pl.'s Reply, ECF No. 32-2).
began placing calls to Plaintiff's cell phone on December
29, 2016, using the Nuxiba system. (Pl.'s Decl.
¶¶ 2, 3, Ex. 2 to Pl.'s MSJ, ECF No. 23-2).
Plaintiff spoke with an LVAC representative on three
occasions, during which Plaintiff stated he did not have
money to pay off his debt and no longer wanted to receive
LVAC's calls. (Collection Notes, Ex. 4 to Pl.'s MSJ,
ECF No. 23-4). LVAC continued to place calls to Plaintiff
until at least April of 2017. (Pl.'s Decl. ¶¶
5, 7, 10, ECF No. 23-2).
filed this action on April 21, 2017, bringing two claims
against LVAC for violation of the TCPA and intrusion upon
seclusion. (See Compl. ¶¶ 24-29, ECF No.
1). In April 2018, Plaintiff and LVAC filed their respective
Motions for Summary Judgment, (ECF Nos. 23, 24).
Federal Rules of Civil Procedure provide for summary
adjudication 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
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. See Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party's
favor.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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
determining summary judgment, a court applies a
burden-shifting analysis. “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). In 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 nonmoving 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.
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 Corp., 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,
477 U.S. at 249. 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
Telephone Consumer Protection Act
and LVAC each seek summary judgment on Plaintiff's TCPA
claim. (Pl.'s MSJ 3:6-9, ECF No. 23); (LVAC's MSJ
1:18-21, ECF No. 24). Plaintiff contends that LVAC knowingly
or willfully persisted in calling him without his consent
using an automatic telephone dialing system
(“ATDS”). (Pl.'s MSJ 6:9-14:17). LVAC argues
that Plaintiff cannot demonstrate that an ATDS was used, and
regardless, Plaintiff consented to being called under the
parties' Membership Agreement. (LVAC's MSJ 6:4-13:4).
LVAC also moves the Court to stay this action, asserting that
new controlling authority on the definition of an ATDS is
impending. (See Mot. to Stay, ECF No. 37). Before
turning to the merits of Plaintiff's claim, the Court
first considers the impact of recent developments in TCPA
jurisprudence, followed by LVAC's request for a stay.
Authority Defining an ATDS
the TCPA, it is unlawful “to make any call . . . using
any automatic telephone dialing system” to any
“cellular telephone service, ” without the called
party's prior consent. See 47 U.S.C. §
227(b)(1)(A)(iii). To implement the TCPA, Congress vested the
Federal Communications Commission (“FCC”) with
the authority to issue rules and regulations. See
Id. § 227(b)(2).
TCPA defines an ATDS as “equipment which has the
capacity (a) to store or produce telephone numbers to be
called, using a random or sequential number generator; and
(b) to dial such numbers.” See Id. §
227(a)(1). In 2015, the FCC issued a declaratory order (the
“2015 FCC Order”) suggesting an ATDS may include
systems that dial from “a fixed set of numbers, ”
despite lacking the capability to dial randomly or
sequentially. In the Matter of Rules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991 (2015 FCC
Order), 30 FCC Rcd. 7961, 7972-78 (2015).
the 2015 FCC Order, several regulated entities challenged the
FCC's definition of an ATDS in the D.C. and Seventh
Circuits, culminating in a consolidated petition in the D.C.
Circuit. See Marks v. Crunch San Diego, LLC, 904
F.3d 1041, 1043-47 (9th Cir. 2018). In March 2018, the D.C.
Circuit Court of Appeals set aside the FCC's
interpretation of an ATDS, finding it to be “an
unreasonably, and impermissibly, expansive one.”
ACA Int'l v. Fed. Commc 'ns Comm 'n, 885
F.3d 687, 700 (D.C. Cir. 2018). The Court reasoned that the
FCC's definition is ambiguous as to whether it embraces
software that dials from a fixed set of numbers, even if the
system cannot randomly or sequentially generate numbers.
Id. at 702-03; see 2015 FCC Order, 30 FCC
Rcd. at 7973. Rejecting the FCC's construction, the D.C.
So which is it: does a device qualify as an ATDS only if it
can generate random or sequential numbers to be dialed, or
can it so qualify even if it lacks that capacity? The 2015
ruling, while speaking to the question in several ways, gives
no clear answer (and in fact seems to give both answers). It
might be permissible for the [FCC] to adopt either
interpretation. But the [FCC] cannot, consistent with
reasoned decisionmaking, espouse both competing
interpretations in the same order.
ACA Int'l, 885 F.3d at 702-03.
wake of ACA Int' l, the Ninth Circuit issued a
decision holding that the 2015 FCC Order, as well as
“any prior FCC rules that were reinstated by the 2015
order, ” no longer serve as binding authority as to the
meaning of an ATDS. Marks, 904 F.3d at 1049.
Consequently, “only the statutory definition of ATDS as
set forth by Congress in 1991 remains.” Id.
Interpreting the statute “anew, ” the Ninth
Circuit held that an ATDS encompasses systems that make
automatic calls from lists of recipients. Id. at
149-50, 1051-53. Thus, under Marks, an ATDS
“means equipment which has the capacity-(1) to store
numbers to be called or (2) to produce numbers to be
called, using a random or sequential number generator-and to
dial such numbers automatically (even if the system must be
turned on or triggered by a person).” Id. at
1052 (emphasis added).
response to ACA Int'l and Marks, the
FCC issued requests for public comment as to the
interpretation of an ATDS. See Consumer &
Governmental Affairs Bureau Seeks Comment on Interpretation
of the Tel. Consumer Prot. Act in Light of the D.C.
Circuit's ACA Int'l Decision, 33 FCC Rcd. 4864
(2018); Consumer & Governmental Affairs Bureau Seeks
Further Comment on Interpretation of the Tel. Consumer Prot.
Act in Light of the Ninth Circuit's Marks v. Crunch San
Diego, LLC Decision, No. 02-278, 2018 WL 4801356, at *1
(OHMSV Oct. 3, 2018). Against this backdrop, LVAC moves the
Court to stay this action. (See Mot. to Stay, ECF
LVAC's Motion to Stay
requests a stay pending the FCC's anticipated rule making
following its requests for public comment. (Id.
1:24-2:2). LVAC points out that under the Hobbs Act, the
FCC's definition of an ATDS would control the Court's
analysis to the extent it conflicted with Marks.
(Id. 2:2-4). LVAC invokes the primary jurisdiction
doctrine as well as the Court's inherent authority in
support of its Motion to Stay. (Id. 6:17-13:13).