Shelton v. Fast Advance Funding, LLC, CIVIL ACTION NO. 18-2071

378 F.Supp.3d 356

James Everett SHELTON

v.FAST ADVANCE FUNDING, LLC

CIVIL ACTION NO. 18-2071

United States District Court, E.D. Pennsylvania.

Signed May 8, 2019

Bryan Anthony Reo, Reo Law LLC, Mentor, OH, Clayton S. Morrow, Morrow & Artim, P.C., Pittsburgh, PA, for James Everett Shelton.

John P. Hartley Complete Business Solutions Group Cynthia A. Clark, Philldelphia, PA 19106 Norman M. Valz, Law Offices of Norman M. Valz, P.C., Blue Bell, PA, for Fast Advance Funding, LLC.

OPINION

CHAD F. KENNEY, JUDGE

Plaintiff James Shelton brought this action for damages based on alleged violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, and the regulations promulgated thereunder, 47 C.F.R. § 64.1200, claiming that Fast Advance Funding, LLC ("Fast Advance") called his personal cellular telephone number for a telemarketing purpose despite his number being on the National Do Not Call Registry in violation of § 227(c)(3)(F) and 47 C.F.R. § 64.1200(c)(2), without having a written policy, available on demand, for maintaining a do-not-call list in violation of 47 C.F.R. § 64.1200(d)(1), and after Plaintiff requested that he not receive calls from Defendant in violation of 47 C.F.R. § 64.1200(d)(3).

I. INTRODUCTION

Throughout this litigation, Defendant Fast Advance has failed to participate in discovery. Significantly, Defendant never responded Plaintiff's Requests for Admission, which Plaintiff propounded on Defendant on February 11, 2019. ECF No. 40-4 ; ECF No. 43. Three weeks prior to the date set for trial, Plaintiff filed a Motion in Limine to prevent Defendant from Offering Testimony or Evidence Contrary to the Admitted Requests for Admission, requesting that the Court confirm that the Requests for Admission are admitted, pursuant to Federal Rule of Civil Procedure ("FRCP") 36(a)(3). ECF No. 40. In its opposition, Defendant argued that the discovery deadline was March 1, 2019, only 18 days after Plaintiff sent Defendant the Requests for Admission, and that Defendant is entitled to 30 days to respond under F.R.C.P 36(a)(3). ECF No. 43. Therefore, Defendant argued, as "Defendant's response date would have been March 13, 2019," which "is after the close of discovery, no response was required." ECF No. 43 at 1. Defendant claimed:

Plaintiff was obliged to serve his Requests for Admissions early enough for Defendant to respond before the completion of the discovery period or move the Court for an extension of the discovery completion date. Plaintiff did neither, and his Request for Admissions were untimely. No response was required.

Id. at 1-2.

Defendant cited no law nor pointed to any statute stating that a defendant does not have to respond to Requests for Admission with a due date 12 days after the discovery deadline, nor did Defendant explain why it did not request that the discovery period be extended. This Court, therefore, granted Plaintiff's Motion in Limine, confirming the Requests for Admission were admitted and requiring that Defendant not seek to admit any evidence at trial to refute or rebut the admissions.

II. REQUESTS FOR ADMISSION

In completely failing to participate in discovery and in ignoring Plaintiff's requests for information despite FRCP 36(a)(3)'s requirement that a "matter is admitted unless ... the party ... serves ... a written answer or objection," Defendant compelled the Court to find for the Plaintiff. FRCP 36 provides the parties an opportunity to "reduce the area of dispute at the trial," and allows the parties to provide a "studied response" made by the party with the "direction and supervision of counsel." Airco Indus. Gases, Inc. Div. of the BOC Grp., Inc. v. Teamsters Health & Welfare Pension Fund of Philadelphia & Vicinity , 850 F.2d 1028, 1036 (3d Cir. 1988). " Rule 36 serves two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be." Langer v. Monarch Life Ins. Co. , 966 F.2d 786, 803 (3d Cir. 1992).

If Defendant had responded to these Requests for Admission, or participated in discovery in any way, the Court would have been able to structure the case for trial. Instead, Defendant was disengaged. In the weeks leading up to trial, this Court was required to email Defendant's counsel multiple times, including sending a letter via mail directly to Defendant Fast Advance, to ensure that it had representation present for trial. A responsive counsel for Defendant finally entered his appearance on April 8, 2019, ECF No. 41, and although Defendant timely filed its pretrial memorandum, it failed to include a proposed verdict slip, proposed Points for Charge, and proposed voir dire, as required by the scheduling order. ECF No. 42 ; ECF No. 43.

On the morning of what was intended to be a jury trial, on May 1, 2019, this Court met with the parties to discuss the remaining issues, if any, for a jury to decide in this matter. At the time of this meeting, this case had been called for a jury trial, ECF No. 38, and a jury was waiting to be empaneled. Defendant argued that it should be allowed to take the testimony of Plaintiff James Shelton to establish that his phone was used for business purposes, which it claimed would act as a bar to standing under the TCPA,¹ despite having done no discovery at all on this, or any other, matter during the discovery period. Furthermore, neither in its pretrial memorandum nor at the hearing prior to the trial did Defendant cite any Third Circuit precedent, nor any explicit section of the TCPA, decisively establishing that use of one's phone for business purposes precluded standing.²

This Court determined that, because the Requests for Admission were deemed admitted, Defendant had admitted that Plaintiff's cell phone was a "personal cellular telephone," and a "private mobile telephone ... used for personal purposes." ECF No. 1 at ¶¶ 20, 50.³ Therefore, the Court concluded that the evidence admitted conclusively established that Plaintiff was permitted to register his telephone number on the National Do Not Call Registry, and, even considering the holding in Shelton v. Target Advance , Plaintiff has standing in this matter. Once the Court had determined the issue of standing, and because the Requests for Admission were deemed admitted, the parties agreed that there were no other issues for which they needed a jury, even though a jury was waiting to be empaneled. The parties agreed that the Court should decide the only remaining issue, whether the violations of the TCPA and its regulations were willful and knowing, which the statute states is a matter for the court to determine.⁴ The Court made its findings based on a preponderance of the evidence standard.

III. FINDINGS OF FACT

1. The phone calls made in this case were claimed to be violative of the regulations, 47 C.F.R. § 64.1200(c) and (d), established pursuant to 47 U.S.C. § 227(c), which require that "[n]o person or entity shall initiate any telephone solicitation to ... [a]residential telephone subscriber who has registered his or her telephone number on the [N]ational [D]o-[N]ot-[C]all [R]egistry," § 64.1200(c)(2), and "[n]o person or entity shall initiate any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity." § 64.1200(d) (emphasis added).

2. Plaintiff James Shelton is the subscriber of a cellphone number (the "Phone Number"), which he uses as his personal cellular telephone number for "personal purposes," and which has been registered on the National Do Not Call Registry since June 2015. ECF No. 1 at ¶¶ 19-20, 50.⁵

3. Defendant has no established business relationship with Plaintiff, and Defendant lacks express prior written consent to contact Plaintiff on his cellular telephone for solicitation purposes. ECF No. 40-1 at ¶¶ 9-10.

4. On March 16, 2018, Plaintiff received a call from a representative of Fast Advance, which Plaintiff answered, regarding a sales pitch about business funding. ECF No. 1 at ¶¶ 21-22. Plaintiff told the caller that if he was interested or had any questions, he would call Defendant back. Id. at ¶ 25.

5. Plaintiff did not consent at that time to receiving any additional telemarketing calls. Id. After this first call, without ever giving Fast Advance permission or consent to call him, Plaintiff received an additional 15 calls from Fast Advance from March 16, 2018 through April 20, 2018. Id. at ¶ 29.

6. On May 1, 2018, Plaintiff wrote an email to Fast Advance, copying Fast Advance's legal counsel, requesting that Fast Advance put his number on their internal do-not-call list and requested to receive a copy of Fast Advance's internal do-not-call policy. Id. at ¶ 35. Defendant did not provide a written copy of their internal do-not-call policy to Plaintiff. Id. at ¶ 36.

7. From May 1-3, 2018, Plaintiff received another five calls from Defendant. Id. at ¶¶ 42-47.

8. In total, Plaintiff received 22 calls from Fast Advance while his number was on the National Do-Not-Call registry, five of which Plaintiff received after requesting to have his number on Defendant's internal do-not-call list. Id. at ¶ 53; ECF No. 40-1 at ¶ 32.

9. Defendant has admitted that it "does not scrub against the [N]ational Do Not Call Registry," "does not honor Do Not Call requests as a matter of routine," and "does not purchase the [N]ational Do Not Call list from the [Federal Trade Commission (‘FTC’) ]." ECF No. 40-1 at ¶¶ 20-22.

10. Defendant further admitted that it "has neither policies nor procedures in place to honor ‘do not call’ requests," "does not maintain an internal ‘Do Not Call’ list," "never recorded any Do Not Call request made from" Plaintiff, and "did not honor Plaintiff Shelton's Do Not Call requests." ECF...