Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A.

212 F.Supp.3d 1286

PALM BEACH GOLF CENTER–BOCA, INC., Plaintiff,

v.John G. SARRIS, D.D.S., P.A., Defendant.

Case No. 12–80178–CV–WILLIAMS

United States District Court, S.D. Florida.

Signed March 9, 2016

Entered March 10, 2016

Brian J. Wanca, Ryan Michael Kelly, David M. Oppenheim, Anderson + Wanca, Rolling Meadows, IL, Daniel J. Cohen, Phillip A. Bock, Tod Allen Lewis, Bock & Hatch, LLC, Chicago, IL, for Plaintiff.

Eric L. Samore, Erin A. Walsh, Molly A. Arranz, Thomas J. Lyman, III, Smith Amundsen, LLC, Chicago, IL, William Stuart Reese, Lane Reese Summers Ennis & Perdomo, P.A., Coral Gables, FL, Rita Chernyak, Lane Reese Summers, Ennis P.A., Coral, FL, for Defendant.

ORDER

KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on the Parties' competing motions for partial summary judgment (DE 138, 146).

I. BACKGROUND

Defendant Sarris hired Mike Roberts to market the Defendant's dental practice. (DE 136 ¶ 19).¹ At some point in 2005, a company called B2B solicited Roberts and offered to send "mass fax advertisements for $420.00." (DE 136 ¶ 2). B2B was run by Caroline Abraham. Abraham set up the company at the request of her husband to serve as a "middleman" for a Romanian company known as Macaw, which sold fax advertising services to companies in the United States. (DE 136 ¶¶ 10–11). The two main functions of B2B were to provide phone lines for Macaw's fax advertising services and to collect checks that could be deposited into a United States bank account that Abraham had opened for that purpose. (DE 136 ¶ 12; DE 140–5, Deposition of Caroline Abraham 13:8–14).² Macaw was responsible for sending fax advertising for B2B's customers. (DE 136 ¶ 14). Specifically, Macaw's Romanian-based employees were responsible for running the faxing operation, uploading the numbers for fax advertising, and actually transmitting the faxes using Abraham's phone lines. (DE 136 ¶ 14).³ Abraham never personally used or worked on any faxing software or programs to send fax advertisements and she did not have any access to the faxing programs or software being used to send B2B faxes. (DE 161 ¶¶ 55, 58). Moreover, Abraham did not know the name or type of computer program that Macaw used to transmit the faxes and she completely lacks any personal knowledge regarding the fax broadcasting software. (DE 161 ¶ 60–61). Instead, the "computer people in Romania" controlled the faxing. (DE 161 ¶ 55; see also DE 140–5, Abraham Dep. 15:18–23 [Q: Is it fair to say you did not personally transmit any faxes, advertising faxes over phone lines—A: Yes."] ). In 2004, Abraham purchased a list of fax numbers and associated data from InfoUSA⁴ which she sent to Macaw in Romania, who in turn sent fax advertisements to the fax numbers contained in the InfoUSA list. (DE 136 ¶¶ 15–16).

Following B2B's solicitation of Roberts, Roberts discussed the potential fax advertising he wanted done with John Bedford.⁵ (DE 136 ¶ 24). On November 30, 2005, Roberts faxed a form advertisement for Defendant's business to B2B for use in the fax advertising campaign. (DE 151 ¶ 16). On December 1, 2005, Roberts faxed revisions of the advertisement to B2B. (DE 151 ¶ 17). Roberts informed B2B that he did not want the faxes sent to businesses associated with the dental industry and directed that the faxes be sent to the following specific zip codes: 33483, 33484, 33487, 33496, 33431, 33432, 33434, 33444, 33445, and 33346.⁶ (DE 136 ¶¶ 27; DE 143–1 Affidavit of Mike Roberts ¶¶ 12, 13 ["I instructed Business to Business to only send faxes to numbers in the local area; specifically, the only approved zip codes were 33484, 33484, 33487, 33496, 33431, 33432, 33434, 33444, 33445, and 33446. Moreover, I instructed Business to Business not to send any faxes to those associated with the dental practice industry"] ). On December 1, 2005, B2B sent Defendant a fax stating that B2B had "everything needed to start your faxing campaign, except payment," and on December 7, 2005, Sarris Management Corporation issued a check for $420.00 for the faxes to B2B. (DE 151 ¶¶ 22, 23). On December 12, 2005, Abraham⁷ sent an email to her son Joel, stating:

Here's the run of 10,000 that I told you about. It just got ok'd to go tonight... He wanted us to use zips 33483–4, 33487. 33431–2, 33434, 33444–6. I'm sure those will be included in the closest zips you pick up. If you have time, please check, but it's hard to imagine that they would not be included. Here's the bad part—he wants us NOT to send to dentists. I know it's a pain, but could you please remove them by deduping or whatever you do.

(DE 143–3; DE 136 ¶ 34). There is no evidence that Roberts changed his instructions⁸ and Abraham has no personal knowledge about the specific faxes at issue in this case, other than what she gleaned from the documents produced at her deposition. (DE 136 ¶¶ 41–42; DE 140–5, Abraham Dep. 51:5–14). Abraham never spoke to anyone at Dr. Sarris's office regarding the fax advertisements, including Roberts, and she has no recollection of speaking to any salesperson at B2B or Macaw regarding the services to be provided for Roberts.⁹ (DE 136 ¶¶ 41–43; DE 140–5, Abraham Dep. 35:7–21; 51:15–23; 122:25–123:5). Abraham had no involvement in selecting the recipients to whom the fax at issue was sent; she testified that if Roberts had requested a specific target for fax advertisements, she had no way of knowing if Macaw followed the instructions when it created the list of recipients and transmitted the faxes over her phone lines. (DE 140–5, Abraham Dep. 116:20–117:2; DE 136 ¶¶ 41–45). For every single fax campaign, Macaw was responsible for uploading the numbers to which the faxes would be sent and then sending the faxes using Abraham's phone lines. (DE 151 ¶ 59; DE 136 ¶ 14; DE 160–5 32:24–33:10).¹⁰

Notwithstanding Roberts' instruction and the December 12, 2005 email, B2B sent the fax advertisements to persons outside the identified zip codes.¹¹ (DE 144–1). B2B never notified Roberts or Defendant that the faxes had been sent. (DE 136 ¶ 44). According to Plaintiff's expert, Robert Biggerstaff, 7,058 faxes advertising Defendant's services were sent by B2B. (DE 136 ¶ 47). Of those 7,058 faxes, 4,984 were sent to fax numbers associated with entries outside of the zip codes identified by Roberts and listed in Abraham's December 12, 2005 email. (DE 136 ¶ 49).¹²

II. LEGAL STANDARD

Summary judgment is appropriate "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). Under this standard, "[o]nly disputes over facts that might affect the outcome of the suit under the governing [substantive] law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And any such dispute is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

"The moving party bears the initial burden of establishing the nonexistence of a triable fact issue." Continental Cas. Co. v. Wendt , 205 F.3d 1258, 1261 (11th Cir. 2000) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the movant establishes the absence of a genuine issue of material fact, the nonmoving 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, 106 S.Ct. 2548 (quoting FED. R. CIV. P. 56(c) ). Thus, "[i]f the non-movant ... fails to adduce evidence which would be sufficient ... to support a jury finding for the non-movant, summary judgment may be granted." Brooks v. Blue Cross & Blue Shield , 116 F.3d 1364, 1370 (11th Cir. 1997) (citation omitted). When a motion for summary judgment is presented to the Court, it opens the entire record for consideration, and the Court may enter judgment in favor of the non-moving party on any grounds apparent in the record, even where there is no formal cross-motion. See Burton v. City of Belle Glade , 178 F.3d 1175, 1204 (11th Cir. 1999).

In evaluating a motion for summary judgment, the Court considers the evidence in the record, "including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials ...." Fed. R. Civ. P. 56(c)(1)(A). The Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, and must resolve all reasonable doubts about the facts in favor of the non-movant." Rioux v. City of Atlanta , 520 F.3d 1269, 1274 (11th Cir. 2008) (quotation marks and citations omitted). While all reasonable inferences arising from the undisputed facts should be made in favor of the nonmovant, "an inference based on speculation and conjecture is not reasonable." Ave. CLO Fund, Ltd. v. Bank of Am., N.A. , 723 F.3d 1287, 1294 (11th Cir. 2013). Thus, "the nonmoving party cannot create a genuine issue of material fact through speculation, conjecture, or evidence that is ‘merely colorable’ or ‘not significantly probative.’ " Phillips v. Smith , 429 Fed.Appx. 905, 907 (11th Cir. 2011). At the summary judgment stage, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505.

III. ANALYSIS

Plaintiff has moved for partial summary judgment on whether the fax at issue was an advertisement within the meaning of the TCPA, whether the advertisement was successfully sent by fax to 7,085 telephone numbers, and whether the fax was sent without the recipient's prior express invitation or permission to do so. (DE 139 at 3–4). Defendant has not responded to Plaintiff's argument regarding...