Career Counseling, Inc. v. Amsterdam Printing & Litho, Inc.

Career Counseling, Inc. d/b/a Snelling Staffing Services, a South Carolina Corporation,individually and as the representative of a class of similarly-situated persons, Plaintiff, v. Amsterdam Printing & Litho, Inc., Taylor Corporation, John Does 1-10, Defendants.

Civil Action No.: 3:15-cv-05061-JMC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

June 19, 2018

ORDER AND OPINION

Plaintiff Career Counseling, Inc. ("Plaintiff"), brings an action on behalf of itself and all others similarly situated, as a result of receiving "unsolicited facsimiles"¹ from Defendants Amsterdam Printing & Litho, Inc. ("Amsterdam") and Taylor Corporation ("Taylor") (collectively "Defendants"), in violation of the Telephone Consumer Protection Act, Pub. L. No. 102-243, 105 Stat. 2394 (codified at 47 U.S.C. § 227) ("TCPA"). (ECF No. 1 at 1-2 ¶¶ 1-2.) Before the court is Defendants' Second Motion for Summary Judgment (ECF No. 116). For the reasons stated herein, the court DENIES Defendants' Second Motion for Summary Judgment (ECF No. 116).

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

In its Complaint, Plaintiff alleges that Defendants sent at least two (2) "unsolicited facsimile advertisements" ("fax advertisements") between June 2015 and December 2015, whichviolated the TCPA. (ECF No. 1 at 1-2 ¶ 2, 4 ¶ 12.)² Plaintiff alleges that the fax advertisements are unsolicited because "[it] had not invited or given permission to Defendants to send the fax[es]." (Id. at 4 ¶ 14.) Plaintiff seeks relief expressly authorized by the Junk Fax Protection Act of 2005, Pub. L. No. 109-21, 119 Stat. 359 (codified at 47 U.S.C. § 227(b)(1)(C)) ("JFPA"), which amended the TCPA. (Id. at 2-3 ¶ 5.) Plaintiff seeks "(1) injunctive relief enjoining Defendants, their employees, agents, representatives, contractors, affiliates, and all other persons and entities acting in concert with them, from sending unsolicited advertisements in violation of the JFPA; and (2) an award of statutory damages in the minimum amount of $500 for each violation of the JFPA, and to have such damages trebled, as provided by § 227(b)(3) of the TCPA." (Id.)

Defendants move for summary judgment on the basis that Amsterdam only sent Plaintiff "solicited" fax advertisements with Plaintiff's prior express invitation or permission.³ (ECF No. 116-1 at 7, 16-18.) Alternatively, even if Amsterdam sent "unsolicited" fax advertisements to Plaintiff, it had an established business relationship ("EBR") with Plaintiff because Plaintiff purchased goods from Amsterdam twice. (Id. at 18-22.) Moreover, Amsterdam's faxes contained compliant opt-out notices. (Id.) Lastly, Defendants move the court to grant summary judgment and to dismiss Taylor from this case because Taylor cannot be held liable for fax advertisements sent by Amsterdam. (Id. at 22-31.)

On December 28, 2015, Plaintiff filed its Complaint. (ECF No. 1.) On March 23, 2016, the case was reassigned to the undersigned. (ECF No. 23.) On May 16, 2017, Defendants filed aMotion for Summary Judgment. (ECF No. 69.) On June 23, 2017, Plaintiff responded (ECF No. 81), and on June 30, 2017, Defendant replied (ECF No. 85). On August 23, 2017, the court granted the Parties' Consent Motion for Leave to Supplement Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification (ECF No. 88).⁴ (ECF No. 89.) The same day, Defendants filed a Supplemental Response to Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification (ECF No. 91), to which Plaintiff replied (ECF No. 93.)⁵

On November 2, 2017, a hearing was scheduled in regard to Plaintiff's Motion for Class Certification (ECF No. 68) and Defendants' Motion for Summary Judgment (ECF No. 69). (ECF No. 96.) On November 16, 2017, the court granted Defendants' Second Unopposed Motion for Leave to Supplement Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification (ECF No. 99). (ECF No. 100.) The same day, Defendants filed a Second Supplemental Response to Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification (ECF No. 102), to which Plaintiff replied (ECF No. 103.)

On November 27, 2017, Plaintiff filed an Unopposed Motion for Leave to File Response to Defendants' Second Supplement to Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification. (ECF No. 104.) On November 28, 2017, the court granted this Motion (ECF No. 105), and Plaintiff filed its Response (ECF No. 106). On December 1, 2017, there was a hearing regarding Plaintiff's Motion for Class Certification (ECF No. 68) and Defendants' Motion for Summary Judgment (ECF No. 69). (ECF No. 109.)

On March 27, 2018, Defendants filed a Third Motion for Leave to Supplement Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Class Certification. (ECF No. 112.) On the same day, the court granted Defendants' Motion (ECF No. 112), and due to the complexity and amount of supplemental information filed by the parties, the court also denied without prejudice Plaintiff's Motion for Class Certification (ECF No. 68) and Defendants' Motion for Summary Judgment (ECF No. 69). (ECF No. 113.) The court directed the parties to refile their respective motions and to consolidate any supplemental caselaw or arguments in the parties' respective memorandums of law within fourteen (14) days of the court filing its Order. (Id.) On April 10, 2018, Defendant filed its Second Motion for Summary Judgment. (ECF No. 116.) On April 24, 2018, Plaintiff responded to Defendants' Motion (ECF No. 116). (ECF No. 120.)

II. JURISDICTION

The court has jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiff brings its claim pursuant to the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(C). (See ECF No. 1 at 3 ¶ 6.)

III. LEGAL STANDARD

Summary judgment should be granted "if the movant shows 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).⁶ A fact is "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49 (1986). A genuine question of material fact exists where, after reviewing the record as a whole, the court finds that a reasonable jury could return a verdict for the non-moving party. Id. at 248.

In ruling on a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990) (citing Pignons S.A. De Mecanique v. Polaroid Corp., 657 F.2d 482, 486 (1st Cir. 1981)). The non-moving party may not oppose a motion for summary judgment with mere allegations or denials of the movant's pleading, but instead must "set forth specific facts" demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 324 (1986); Anderson, 477 U.S. at 252. All that is required is that "sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson, 477 U.S. at 249 (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968)). "Mere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). "[T]he burden [to show no genuine issue of material fact] on the moving party may be discharged by 'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the non-moving party's case." Celotex Corp., 477 U.S. at 325.

A party cannot create a disputed issue of material fact simply by contradicting [his or] her own testimony. See Halperin v. Abacus Technology Corp., 128 F.3d 191, 198 (4th Cir. 1997) ("[i]t is well established that 'a genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of [a party's] testimony is correct.'") (quoting Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984)), holding on other grounds limited by Baird v. Rose, 192 F.3d 462 (4th Cir. 1999); Johnson v. Bryant, No. CA 0:11-537-JFA-PJG, 2012 WL 2935254, at *2 (D.S.C. July 19, 2012) (same).

IV. ANALYSIS

I. Telephone Consumer Protection Act

"Voluminous consumer complaints about abuses of telephone technology—for example, computerized calls dispatched to private homes—prompted Congress to pass the TCPA." Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 370-71 (2012). "Congress determined that federal legislation was needed because telemarketers, by operating interstate, were escaping state-law prohibitions on intrusive nuisance calls. The Act bans certain practices invasive of privacy and directs the Federal Communications Commission ("FCC or Commission") to prescribe implementing regulations." Id.

The JFPA's amendment to the TCPA had three purposes:

(1) Create a limited statutory exception to the current prohibition against the faxing of unsolicited advertisements to individuals without their "prior express invitation or permission" by permitting such transmission by senders of commercial faxes to those with whom they have an established business relationship (EBR).

(2) Require that senders of faxes with unsolicited advertisements (i.e., "junk faxes") provide notice of a recipient's ability to opt out of receiving any future faxes containing unsolicited advertisements and a cost-free mechanism for recipients to opt out pursuant to that notice.

(3) Require the Federal Communications Commission [ ] and Comptroller General of the United States to provide certain reports to Congress regarding the enforcement of these provisions.

S. Rep. No. 109-76, at 1 (2005).

At issue in this...