Eisenband v. Pine Belt Automotive, Inc.

FRANK EISENBAND,Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. PINE BELT AUTOMOTIVE, INC. d/b/a PINE BELT NISSAN, Defendant.

Civil Action No. 17-8549 (FLW) (LHG)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

March 27, 2020

*NOT FOR PUBLICATION*

OPINION

WOLFSON, Chief Judge:

Before the Court are a Motion for Summary Judgment filed by Defendant Pine Belt Automotive, Inc. d/b/a Pine Belt Nissan ("Defendant" or "Pine Belt") and a Cross-Motion for Sanctions and Partial Summary Judgment filed by Plaintiff Frank Eisenband ("Plaintiff").¹ On October 18, 2017, Plaintiff filed this putative class action against Defendant, bringing four counts for violation of the Telephone Consumer Protection Act ("TCPA") based on allegedly unauthorized text messages and calls from Defendant to Plaintiff.² In its Motion for Summary Judgment, Defendant argues that the computer program that was used to deliver these textmessages and calls did not meet the statutory definition of Automated Telephone Dialing System ("ATDS") and, therefore, Defendant cannot be liable under the TCPA. Plaintiff, in his Motion, contends that Defendant spoliated evidence by "destroying" the alleged ATDS when Defendant cancelled its agreement with a third-party software provider, CRMSuite, Inc ("CRMSuite"). Plaintiff also argues that he is entitled to summary judgment on one of Defendant's potential defenses to the TCPA claims: that Defendant had Plaintiff's consent to send the at-issue messages.

For the reasons that follow Defendant's Motion for Summary Judgment is GRANTED Plaintiff's Motion for Sanctions and Partial Summary Judgment is DENIED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff first contacted Pine Belt in September 2017, by calling to request information about leasing a specific Nissan vehicle for possible pick-up the following day. Defendant's Statement of Undisputed Material Facts ("DSOF") at ¶¶ 8-18. After Defendant returned Plaintiff's call, it then followed up with several text messages to apprise him of special offers or promotions. Id. For instance, on September 25, 2017 at 11:03 am, Plaintiff received the following text message from Pine Belt:

Pine Belt Nissan EXCLUSIVE private offer: This message can save you up to $500 on any previous Pine Belt Nissan quote. Come in, present this message to your sales representative and automatically save up to $500 off our best price. Visit us today at Pine Belt Nissan of Toms River to save big on all inventory. Offer expires on 9/29/2017.

Id. at ¶19.

Plaintiff claims that Pine Belt's messages violated the TCPA because they were sent using an ATDS, that is, a device has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. See 47 U.S.C. § 227(a)(1). Defendantpoints to uncontroverted record evidence purportedly demonstrating that the CRMSuite computer platform, which Defendant used to send the subject text messages, did not meet the statutory definition of ATDS because Pine Belt employees, rather than the device itself, generated the numbers to be called or texted. For support, two Pine Belt representatives testified at depositions that the CRMSuite platform sent messages only to specifically selected persons from Pine Belt's own database. DSOF at ¶¶ 42-43. Second, screen shots of the actual text "campaigns" were printed from Pine Belt's computer platform's "Create Campaign" function, showing the various steps involved in the manual selection of customers and potential customers. Id. at ¶¶ 44-46. The "Create Campaign" function enabled Pine Belt to access its own cultivated contact data to create lists of customers and potential customers who might have been interested in learning of Nissan or Pine Belt promotions or special offers based upon their own prior inquiries to Pine Belt. Id. at ¶¶ 38-46. The CRMSuite platform required that a Pine Belt representative evaluate which of various filter mechanisms to apply in reaching the intended audience for the type of campaign, and then manually type the campaign title, campaign description and the actual content of the text message for each campaign. Id. at ¶¶ 45-46, 56-57.

Finally, CRMSuite's CEO, Richard Latman, who designed and created the platform, testified at his deposition and submitted a declaration attesting that the platform did not have the capacity to generate random or sequential telephone numbers and then dial those numbers.³ Id. at¶ 51. In fact, according to Latman, there was no line of computer code that used the randomizing or "RAND function." Id. at ¶ 52. Rather, messages could only be sent to specifically targeted customers or potential customers within Pine Belt's CRM database and then only to those who "qualified" as recipients by meeting the message criteria specified by the creator of the particular campaign. Id. at ¶¶ 52-58. In sum, Mr. Latman explained that, far from being an automated system, "[t]he platform doesn't do anything automatically:" "Every single piece of this campaign, including the category, the category list has to be created by the dealership, as does the campaign title, the campaign description, the date ranges, everything is manual, even the description." Id. at ¶ 56.

On October 18, 2017, less than four weeks after he initiated communications with Pine Belt, Plaintiff filed the present TCPA Class Action Complaint against Defendant seeking statutory damages of $1,500 for each alleged TCPA violation. Compl. p. 13, Prayer for Relief, ¶¶ B-E. After engaging in discovery, Defendant filed the present Motion for Summary Judgment on August 19, 2019, and, on September 27, 2019, Plaintiff filed his Motion for Sanctions and Partial Summary Judgment. On February 20, 2020, the Court heard oral argument on these motions.

In the present motions, Plaintiff does not contest any facts regarding the operation of the CRMSuite platform and how the dialed numbers are selected by Pine Belt initially. Instead, he argues that Defendant engaged in spoliation by canceling its agreement with CRMSuite, and not providing Plaintiff advance notice of such cancellation, thereby depriving Plaintiff of the evidence that might demonstrate the system actually does function as an ATDS. He alternatively argues that, even accepting the facts as Defendant presents them, the platform meets thedefinition of ATDS, as defined by Federal Communications Commission ("FCC") orders and case law.

II. LEGAL STANDARD

Summary judgment is appropriate where the Court is satisfied that "there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is genuine only if there is "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party," and it is material only if it has the ability to "affect the outcome of the suit under governing law." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor .'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 447 U.S. at 255)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).

The burden of establishing that no "genuine issue" exists is on the party moving for summary judgment. Celotex, 477 U.S. at 330. "A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial." Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). The non-moving party must present "more than a scintilla of evidence showing that there is a genuine issue for trial."Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quotations omitted). Under Anderson, plaintiffs' proffered evidence must be sufficient to meet the substantive evidentiary standard the jury would have to use at trial. 477 U.S. at 255. To do so, the non-moving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (quotations omitted); see also Matsushita, 475 U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

There can be "no genuine issue as to any material fact," however, if a party fails "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.1992).

III. DISCUSSION

Defendant's motion turns on a question of law. Defendant contends that, to qualify as an ATDS, a system must have the capacity to randomly or sequentially generate numbers without human intervention, while Plaintiff argues that an ATDS must only dial numbers...