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Singer v. Las Vegas Athletic Clubs

United States District Court, D. Nevada

March 25, 2019

CHARLES SINGER, Plaintiff,
v.
LAS VEGAS ATHLETIC CLUBS, Defendants.

          ORDER

          GLORI M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT JUDGE

         Pending 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.

         Also 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.[1]

         For the 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.

         I. BACKGROUND

         This 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.).

         On 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).

         LVAC 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).

         Plaintiff 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).

         II. LEGAL STANDARD

         The 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 (1986).

         In 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).

         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 Corp., 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, 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

         III. DISCUSSION

         A. Telephone Consumer Protection Act

         Plaintiff 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.

         1. Authority Defining an ATDS

         Under 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).

         The 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).

         Following 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).[2] 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. Circuit explained:

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.

         In the 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).

         In 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 No. 37).

         2. LVAC's Motion to Stay

         LVAC 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).

         a. ...


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