Shearer v. Aig Direct Ins. Servs., Inc., CIVIL ACTION NO. 1:15-CV-1416

DARYI SHEARER, Plaintiff, v. AIG DIRECT INSURANCE SERVICES, INC., Defendant

CIVIL ACTION NO. 1:15-CV-1416

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

September 29, 2016

(Chief Judge Conner)

MEMORANDUM

Plaintiff Daryi Shearer ("Shearer") brings this action against defendant AIG Direct Insurance Services ("AIG Direct") pursuant to the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. (Doc. 1). Before the court are AIG Direct's motion (Doc. 16) for summary judgment and motion (Doc. 23) in limine. The court will deny AIG Direct's motion for summary judgment, and will grant AIG Direct's motion in limine.

I. Factual Background & Procedural History¹

AIG Direct is an insurance provider that sells life insurance products. (Doc. 18 ¶ 3). AIG Direct maintains a website through which interested consumers may request quotes for life insurance policies. (Id.) The website proclaims that "[i]t takes 2 minutes to request your term life quote." (Id. ¶ 3). To obtain that quote, prospective patrons must use the website's interactive form. (Id.) The form contains several fillable boxes in which a user may enter personal identifying information, including his or her name, physical characteristics, email address, date of birth, and pertinently, primary and secondary telephone numbers. (Id. ¶¶ 3-6). After the user enters their personal information, he or she may submit the form by clicking on a button labeled "Get Your FREE Quote!" (Id. ¶ 3). In the space between the form's boxes and the button, the website's text plainly explains that AIG Direct may call users who provide their personal information using the website's form:

By submitting this request, I consent to receive phone calls from AIG Direct, regarding AIG Direct's products and services, at the phone number(s) above, including my wireless number if provided. I understand these callsmay be generated using an automated technology. I understand that consent is not required to make a purchase.

(Id.)

The AIG Direct life insurance website received a form containing Shearer's personal information on May 9, 2015. (Doc. 17-7). The form included Shearer's full name, primary and secondary phone numbers, email address, date of birth, and identifying physical characteristics. (Id.) Shearer's internet provider confirmed that Shearer's data was submitted to AIG Direct using a computer located at his physical address. (Doc. 17-3; Doc. 17-5 ¶ 6).

AIG Direct's computer system maintains a log of each call that it places to people who request life insurance quotes. (Doc. 17-5 ¶¶ 6-7). AIG Direct records all conversations between its employees and potential customers in such an individualized call log. (Id.) Shearer's log reveals that AIG Direct called Shearer 25 times between May 9, 2015 and July 7, 2015. (Doc. 17-8). AIG Direct avers, however, that it has two recorded conversations between its representatives and Shearer because Shearer only spoke with AIG Direct employees twice. (Doc. 17-5 ¶¶ 9-11). The log reflects that AIG Direct's employees spoke with Shearer for 111 seconds on June 8, 2015, and for 19 seconds on July 7, 2015, the last call on the log. (Doc. 17-8). The log contains records of four other phone calls that Shearer apparently answered. (Doc. 17-5 ¶¶ 9-11). AIG Direct denies that recordings of those calls hold any content because they were terminated before any conversation took place.(Id.) The log also has records of 19 other phone calls that AIG Direct placed to Shearer's cellular telephone number. (Id.) AIG Direct maintains that it has no recordings of those phone calls because Shearer did not answer them. (Id.)

AIG Direct notes that, during the June 8, 2015 conversation, Shearer discussed his life insurance quote with an AIG Direct agent. (Doc. 17-5 ¶ 10). AIG Direct's counsel played the recording at Shearer's deposition. (Doc. 17-2, Shearer Dep. 46:10-48:15, Feb. 15, 2016 ("Shearer Dep.")). Shearer did not ask the agent to stop AIG Direct's calls during that conversation. (Id.) Shearer instead inquired as to the purpose of the call and answered several of the agent's questions. (Id.) AIG Direct's counsel also played a July 7, 2015 call between Shearer and an AIG Direct representative. (Id. 42:4-12). At that time, Shearer informed the representative that he had previously asked AIG Direct "to take [his] name off the list" and that he wanted AIG Direct to stop calling his telephone number. (Id.) The agent promptly ended the call. (Id.) No further attempts to contact Shearer appear in AIG Direct's call log or in telephone records that Shearer provided during discovery. (Doc. 17-4; Doc. 17-8).

Shearer's account differs from AIG Direct's recitation of the facts. According to Shearer, AIG Direct started calling him in March or May 2015. (Doc. 20 ¶ 24). When he answered AIG Direct's phone calls, he received an automated message that identified the caller as AIG Direct Insurance Services. (Doc. 20-2 ¶ 3). He also maintains that he received four or five calls from AIG Direct per day. (Id.) Shearer ostensibly asked AIG Direct representatives to stop calling him in March 2015, but the calls continued through July 2015. (Id.) He describes another discussion inwhich he instructed an AIG Direct representative to stop the company's telephone calls. (Id. at ¶ 8). Shearer claims that the representative laughed at him, and that the telephone calls continued. (Id.) Shearer nevertheless conceded during his deposition that he had no recollection of asking any AIG Direct representative to stop calling him prior to July 2015. (Shearer Dep. 46:5-8). Shearer denies ever requesting an AIG Direct life insurance quote. (Id. at 45:24-48:17). He speculates that his wife, Elizabeth Shearer, may have requested it on his behalf and without his permission. (Doc. 20 ¶ 9).

Shearer initiated the case sub judice by filing a complaint (Doc. 1) on July 21, 2015. Therein, Shearer asserts one statutory claim: that AIG Direct violated the TCPA by purposefully initiating several automated, non-emergency telephone calls to his cellular phone number without obtaining his prior express consent. (Doc. 1 ¶¶ 23-28). AIG Direct filed its motion (Doc. 16) for summary judgment on March 28, 2016. It also filed a motion (Doc. 23) in limine on July 8, 2016. AIG Direct's motions are fully briefed and ripe for disposition.

II. Legal Standard

Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact" and for which a jury trial would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of proof tasks the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, tosustain a judgment in favor of the non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986). Only if this threshold is met may the cause of action proceed. See Pappas, 331 F. Supp. 2d at 315.

III. Discussion

AIG Direct avers that the court should grant its motion for summary judgment because Shearer has failed to establish the requisite elements of a TCPA claim. To wit, AIG Direct asserts that Shearer did not make a sufficient evidentiary showing with regard to the element of consent. Shearer submits two genuine issues of material fact for the court's consideration: (1) that he never granted AIG Direct consent to call his cellular telephone number, and (2) that AIG Direct exceeded the scope of any consent he granted by continuing to call his telephone number after he demanded that the calls stop.

AIG Direct further argues that the court should grant its motion in limine because Shearer may offer testimony at trial based on pure speculation, to wit: that Shearer's wife may have requested a life insurance quote from AIG Direct on his behalf and without his knowledge. The court will address these issues seriatim.

A. Summary Judgment

The TCPA provides that no entity may initiate telephone calls to cellular or residential telephone lines using automatic dialing apparatuses, artificial voices, or prerecorded messages. 47 U.S.C. § 227(b)(1)(A)(iii). A private cause of action is available to those whose phones receive calls in violation of the TCPA. Id. The statute also explains that the cause of action does not accrue if the calls were placedwith "prior express consent of the called party." Id. Congress has empowered the Federal Communications Commission ("FCC") to implement rules and enforce the TCPA. Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268-69 (3d Cir. 2013) (citing 47 U.S.C. § 227(b)(2)). In its rules, the FCC has stated that automatically dialed telephone calls to landlines and cellular lines are permissible provided that "the recipient has granted 'permission to be called at the number which they have given, absent instructions to the contrary.'" Gager, 727 F.3d at 269 (citing In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8769 ¶ 31 (Oct. 16, 1992) (emphasis removed)). The FCC has further ruled that prior express consent is an affirmative defense with respect to prerecorded phone calls and automated voice messaging. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 564 ¶ 9 (Jan. 4, 2008).

With its motion, AIG Direct presents record evidence indicating that Shearer filled out its interactive form for prospective life insurance buyers. (Doc. 17-7). AIG Direct provides a sample interactive form. (Doc. 17-6). AIG Direct also submits a data sheet containing Shearer's personal information, which was submitted from a computer located at...