Beard v. John Hiester Chevrolet, LLC

640 F.Supp.3d 420

Tracie BEARD, individually and on behalf of all others similarly situated, Plaintiff, v. JOHN HIESTER CHEVROLET, LLC, Defendant.

5:21-CV-173-D

United States District Court, E.D. North Carolina, Western Division

Signed November 9, 2022

Ignacio Javier Hiraldo, IJH Law, Miami, FL, Manuel Santiago Hiraldo, Hiraldo P.A., Fort Lauderdale, FL, David Matthew Wilkerson, The Van Winkle Law Firm, Asheville, NC, for Plaintiff.

Elisa Cyre Salmon, The Salmon Law Firm, LLP, Lillington, NC, Robert Anthony Buzzard, Buzzard Law Firm, Lillington, NC, for Defendant.

ORDER

JAMES C. DEVER III, United States District Judge

On April 14, 2021, Tracie Beard ("plaintiff" or "Beard") filed a putative class action under the Telephone Consumer Protection Act, 47 U.S.C. §§ 227, et seq. ("TCPA") against John Hiester Chevrolet, LLC ("defendant" or "JH Chevrolet") [D.E. 1]. On May 12, 2021, Beard amended her complaint [D.E. 7]. On March 30, 2022, JH Chevrolet moved for summary judgment [D.E. 32] and filed a memorandum in support [D.E. 33], statement of material facts [D.E. 34], and appendix [D.E. 35]. On April 4, 2022, Beard moved to defer ruling on JH Chevrolet's motion for summary judgment [D.E. 39]. On April 20, 2022, Beard responded in opposition to JH Chevrolet's motion for summary judgment [D.E. 43] and filed a response to JH Chevrolet's statement of material facts [D.E. 44]. On May 24, 2022, JH Chevrolet responded to Beard's motion to defer ruling on the motion for summary judgment [D.E. 52]. On June 14, 2022, the court granted in part and denied in part Beard's motion to defer ruling on JH Chevrolet's motion for summary judgment [D.E. 55]. On July 1, 2022, Beard responded in opposition to JH Chevrolet's motion for summary judgment [D.E. 59] and filed a response to JH Chevrolet's statement of material facts [D.E. 60] and appendix [D.E. 61]. On July 15, 2022, JH Chevrolet replied [D.E. 62]. As explained below, the court grants JH Chevrolet's motion for summary judgment.

I.

When Beard was considering buying a vehicle from JH Chevrolet, she provided information online and via telephone to JH Chevrolet and WeBuy, a website that provided information to JH Chevrolet. See [D.E. 60] ¶¶ 2, 5-6. At the time, Beard had two cell phone numbers: (1)919-288-6590 ("6590") and (2) 919-288-0677 ("0677"). Id. at ¶ 1; [D.E. 33-1] 18, 20. On September 30, 2020, Beard used the 6590 phone to call JH Chevrolet and ask about a vehicle. See [D.E. 60] ¶ 2. That same day, Beard made an online inquiry to JH Chevrolet's website, and supplied her name, email address, 6590 phone number, and other personal information. Id. at ¶¶ 5-6; See [D.E. 33-1] 53. After providing her information on the webpage online, Beard clicked to the next screen of the webpage. See [D.E. 33-1] 54. The next screen required Beard to click a box next to both "I am not a minor" and "I agree to Terms of Service, Privacy Policy, and Privacy Notice" to continue to the next page in the process. See id. The words "Terms of Service," "Privacy Policy," and "Privacy Notice" appeared in a light red color to indicate hyperlinking, and the other words in the statement appeared in black. See id. The acceptance statement appeared in the same size and style font as the prompts used to direct a user to enter her name, email address, and password. See id. Before an individual could proceed to the next page, she had to check the box. See [D.E. 33-1] 54-55. The hyperlinked agreements contained passages notifying Beard that her information could be used "for our marketing purposes" and "for our affiliates to market to you." See [D.E. 35] 74-75. Beard does not recall whether she actually clicked on the "I agree to" box on WeBuy's website. Compare [D.E. 33] 7-11 and [D.E. 33-1] 53-55 and [D.E. 62] 3-5 with [D.E. 60] ¶¶ 7-13, 15. Nonetheless, JH Chevrolet's exhibits and the fact that Beard could not have proceeded in the process without clicking the "I agree to" box and proceeding to the next page demonstrate that Beard clicked the "I agree to" box on September 30, 2020. Compare [D.E. 33] 7-11 and [D.E. 33-1] 53-55 and [D.E. 62] 3-5 with [D.E. 60] ¶¶ 7-13, 15.

On October 28, 2020, November 24, 2020, and December 22, 2020, Beard received prerecorded telemarketing voicemails to her 6590 number. See [D.E. 60] ¶¶ 17, 19, 23; Am. Compl. [D.E. 7] ¶ 22; [D.E. 33] 7. The parties dispute whether these prerecorded voicemails came from calls or ringless voicemails. See [D.E. 60] ¶¶ 28-29. On November 18, 2020, Beard called JH Chevrolet using her 0677 number and left a voicemail. See id. ¶ 20. In the voicemail, Beard stated, "My number is (919) 288-0677. Do not call this number. I'm not interested in a car. I have not done business with y'all. I work a full-time job. My number is (919) 288-65 -- 0766." Id. at ¶ 21. Following this voicemail, JH Chevrolet did not contact the 0677 number. Id. at ¶ 22.

On April 14, 2021, Beard filed a putative class action under the TCPA against JH Chevrolet alleging that the prerecorded voicemails caused injuries, including, "invasion of privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion," because the prerecorded voicemails made Beard "stop what she was doing and listen to the pre-recorded messages" and "occupied [her] telephone lines and rendered the devices unavailable for the receipt of other calls." Am. Compl. ¶¶ 22-27. On March 30, 2022, JH Chevrolet moved for summary judgment. See [D.E. 32]. In its motion for summary judgment, JH Chevrolet argues that ringless voicemails are not calls under the TCPA, the intangible harms that Beard alleges are not a "concrete injury" sufficient to support Article III standing, and even if ringless voicemails are calls and Beard has standing, Beard provided prior express written consent to be contacted. See id.

II.

Summary judgment is appropriate when, after reviewing the record as a whole, the court determines that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Scott v. Harris, 550 U.S. 372, 378, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment must initially demonstrate the absence of a genuine issue of material fact or the absence of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, see Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505, but "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis and quotation omitted). A trial court reviewing a motion for summary judgment should determine whether a genuine issue of material fact exists for trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In making this determination, the court must view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. See Harris, 550 U.S. at 378, 127 S.Ct. 1769.

A genuine issue of material fact exists if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position [is] insufficient . . . ." Id. at 252, 106 S.Ct. 2505; see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) ("The nonmoving party, however, cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another."). Only factual disputes that affect the outcome under substantive law properly preclude summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

A.

JH Chevrolet argues that the prerecorded ringless voicemails left for Beard several times are not "calls" under the TCPA. The TCPA makes it unlawful "to make any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service." 47 U.S.C. § 227(b)(1)(A). The TCPA does not define "call" and the FCC, United States Supreme Court, and Fourth Circuit have not decided whether a ringless voicemail qualifies as a call.

Although only a few courts have addressed whether a ringless voicemail is a call under the TCPA, every court that has addressed this question has held that a ringless voicemail is a call under the TCPA. See, e.g., Grigorian v. FCA US, LLC, 838 F. App'x 390, 393 (11th Cir. 2020) (unpublished) (per curiam); Schaevitz v. Braman Hyundai, Inc., 437 F. Supp. 3d 1237, 1246-49 (S.D. Fla. 2019); Saunders v. Dyck O'Neal, 319 F. Supp. 3d 907, 909-12 (W.D. Mich. 2018). Moreover, other courts have held that "call" as used in the TCPA means "to communicate with or try to get into communication with a person by a telephone." See, e.g., Ashland Hosp. Corp. v. Serv. Employees Int'l Union Dist. 119 WV/KY/OH, 708 F.3d 737, 742 (6th Cir. 2013). And a ringless voicemail does just that. Furthermore, prerecorded voicemails, text messages, and calls that directly go to voicemail are subject to the same TCPA restrictions as traditional calls. See, e.g., Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 461-63 (7th Cir. 2020) (Barrett, J.); see also 47 U.S.C. § 227(b)(1)(A)(iii); Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 92-95 (2d Cir. 2019); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017); Susinno v. Work Out World, Inc., 862 F.3d 346, 350-52 (3d Cir. 2017); Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 2012); Davis v. Safe Streets USA. LLC, 497 F. Supp. 3d 47, 54 (E.D.N.C. 2020). And the FCC proposed a ruling earlier this year declaring...