Worsham v. TSS Consulting Grp.

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MICHAEL C. WORSHAM, Plaintiff, v. TSS CONSULTING GROUP, LLC and MARCOS I. TAVERAS, Defendants

No. 6:18-cv-1692-LHP

United States District Court, M.D. Florida, Orlando Division

March 28, 2023

ORDER AND ORDER TO SHOW CAUSE TO PLAINTIFF

LESLIE HOFFMAN PRICE UNITED STATES MAGISTRATE JUDGE.

This cause came on for consideration without oral argument on the following motion filed herein:

MOTION PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT UNDER RULE 56 (Doc. No. 221)

FILED July 19, 2022

THEREON it is ORDERED that the motion is DENIED.

I. BACKGROUND

This action stems from unwanted calls Plaintiff Michael C. Worsham, a former attorney proceeding pro se, alleges he received from Defendants TSS Consulting Group, LLC (“TSS”), a now inactive limited liability company located in Florida, and Marcos I. Taveras, the managing member of TSS. Plaintiff resides in Forest Hill, Maryland, and has been the subscriber to the Verizon cellular wireless telephone number 410-557-6192 continuously since 2014. Doc. No. 47, ¶ 1; Affidavit of Michael C. Worsham (“Worsham Aff.”) (Doc. No. 221-1, ¶ 1).^[1] The number was originally Plaintiff's landline number, but he changed it to his cellular number in 2014. Worsham Aff., ¶ 2. The number has been registered with the National Do Not Call List continuously for at least the last 10 years. Id. Plaintiff never gave Defendants or anyone working for Defendants written or prior express permission to call Plaintiff at the 410-557-6192 number. Id., ¶ 3.

Between March 28, 2018 and September 18, 2018, Plaintiff received at the 410557-6192 phone number 83 phone calls, all originating from a 410-557-7890 phone number. Id., ¶¶ 4-5; see also Doc. No. 47, ¶¶ 11-14. And between May 23, 2018 and December 27, 2018, Plaintiff received an additional 12 phone calls, originating from the numbers 888-778-5736, 2018, 2002, and 800-847-2911. Worsham Aff., ¶¶ 4-5; Doc. No. 47, at 5. During 18 of these calls, Plaintiff attempted to opt out by telling the person on the call to stop calling his cellular number, but this had no effect and the calls continued at least through June 2019. Worsham Aff., ¶¶ 5-12, 16. The majority of the calls were prerecorded voice solicitation messages, and never identified the company, the caller, or any phone number or address. Id., ¶¶ 8-14, 16, 21; Doc. No. 47, ¶¶ 13, 15, 19. During two phone calls on June 7, 2018, Plaintiff spoke to two different salespersons, one of whom stated that the company was TSS Consulting Group, located in Windermere Florida. Worsham Aff. ¶¶ 2141. And during two phone calls on June 3, 2019, the salesperson said that he worked with TSS. Id., ¶ 16. During the first June 7, 2018 call, the person Plaintiff was speaking to provided a call back number of 407-986-5439, extension 2071. Id., ¶ 30. On at least six occasions, Plaintiff asked the salesperson on the call for a copy of their Do Not Call policy, but it was never provided. Id., ¶ 20.

Based on these phone calls, Plaintiff initiated the present lawsuit.^[2] Doc. No. 1. As relevant to the present motion, on April 2, 2019, Plaintiff filed a Third Amended Complaint against TSS and Taveras, alleging 22 violations of the Telephone Consumer Protection Act (“TCPA”) and the Maryland Telephone Consumer Protection Act (“MD TCPA”). Doc. No. 47. Plaintiff sought both statutory damages and injunctive relief. Id. The case was stayed from October 2, 2019 through May 24, 2021 due to the Defendants' filing of bankruptcy proceedings.

Doc. Nos. 155-57, 162-66. See also 11 U.S.C. § 362(a)(1). On March 30, 2020, both bankruptcy proceedings were resolved. See in re TSS Consulting Group, LLC, No. 6:19-bk-6322 (Bankr. M.D. Fla.); In re Marcos Taveras, No. 6:19-bk-6316 (Bankr. M.D. Fla.). See also Docs. 160-61.^[3] As a result, the parties agreed that the only relief remaining that Plaintiff could pursue was statutory injunctive relief under the TCPA. See Doc. No. 165. Accordingly, the case was reopened so that Plaintiff could pursue injunctive relief under the federal statute only. Doc. No. 166.^[4]Pursuant to the Amended Case Management and Scheduling Order, discovery closed on November 30, 2021, and the deadline to file dispositive motions was January 31, 2022. Doc. No. 190, at 3-4.

On December 23, 2021, Plaintiff filed a “Motion for Permanent Injunctive Relief,” which appears to have been a first motion for summary judgment. Doc. No. 198. Defendants never responded to the motion. Nor did Defendants timely respond to the Third Amended Complaint. See Doc. No. 211. So, on June 1, 2022, the Court issued an Order to Show Cause, and based on the parties' responses, the Court denied without prejudice Plaintiff's “Motion for Permanent Injunctive Relief,” deemed Defendants' belated answers to the Third Amended Complaint to be timely filed, and set forth a briefing schedule for a renewed motion for summary judgment. Doc. No. 220, at 6-7. See also Doc. Nos. 211, 216-17. With respect to Plaintiff's filing of a renewed summary judgment motion, the Court explicitly ordered that

The motion must be all inclusive - in other words, Plaintiff shall make all necessary legal arguments, and attach all materials to that motion -that he wishes the Court to consider. The Court will not consider any discovery materials, evidence, or arguments that are incorporated by reference (other than the Third Amended Complaint and Defendants' Answers thereto). Plaintiff shall ensure that the renewed motion satisfies the requirements of Rule 56, contains citation to appropriate legal authority to support the requested relief, and addresses all elements of the claims and relief asserted in the Third Amended Complaint that Plaintiff is continuing to pursue against Defendants, including, but not limited to, establishing, via admissible evidence under the Federal Rules of Evidence, that Defendants owned or had control over the telephone number(s) at issue.

Doc. No. 220, at 7.

On July 19, 2022, Plaintiff filed his renewed motion for summary judgment. Doc. No. 221. In direct contravention of the Court's June 28, 2022 Order, Plaintiff did not attach all materials to the motion that he wished the Court to consider, rather he continued to incorporate materials attached to his unsuccessful July 20, 2019 motion for preliminary injunction (Doc. No. 95), and materials attached to the first motion for summary judgment. (Doc. No. 198). See Doc. No. 221, at 2-4. The only materials attached to the renewed motion consist of an updated affidavit from Plaintiff himself, and a copy of the Electronic Articles of Incorporation for TSS. Doc. Nos. 221-1, 221-2. In addition, the renewed motion exceeds the 25-page limit without prior authorization. See Doc. No. 32, at 9; Doc. No. 190, at 11.

Defendants filed a timely response in opposition, in which they contend that the requested injunctive relief is overly broad and exceeds the authority of the TCPA, and that Plaintiff has failed to establish that Defendants initiated the calls at issue. Doc. No. 224. With leave of Court, Plaintiff filed a timely reply, in which he again refers to the materials filed with the previously identified motions, and argues that the doctrine of nondelegation establishes Defendants' liability in this case. Doc. No. 228. With the motion fully briefed, and for the reasons discussed below, the motion is due to be denied, and Plaintiff shall be provided an opportunity to show cause why summary judgment should not instead be entered in favor of Defendants as to all claims. See Fed.R.Civ.P. 56(f).

II. STANDARD OF REVIEW

A court should grant a motion for summary judgment “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). The movant “bears the initial burden of identifying for the district court those portions of the record ‘which it believes demonstrate the absence of a genuine issue of material fact.'” Cohen v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir. 1996) (quoting Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1396 (11th Cir. 1994), modified on other grounds, 30 F.3d 1347 (11th Cir. 1994)). Once the movant carries its initial burden, the nonmovant may avoid summary judgment by demonstrating an issue of material fact. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (citation omitted). The non-movant must provide more than a “mere ‘scintilla' of evidence” supporting its position, and “there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986)). In this analysis, the Court is only required to consider the materials cited by the parties, but it may consider other materials in the record. Fed.R.Civ.P. 56(c)(3).

“A factual dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” United States v. Four Parcels of Real Prop. in Green & Tuscaloosa Ctys., 941 F.2d 1428, 1437 (11th Cir. 1991) (quoting Anderson, 477 U.S. at 248). When analyzing a motion for summary judgment, a court draws all reasonable inferences from the evidence in the light most favorable to the non-movant and resolves all reasonable doubt in the non-movant's favor. Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citing Lubetsky v. Applied Card Sys., Inc., 296 F.3d 1301, 1304 (11th Cir. 2002)).

Because the only issues remaining in this case involve claims for injunctive relief, there is no right to a jury trial. See Herstal SA v. Clyde Armony, Inc., 838 F.3d 1071, 1088 (11th Cir. 2016) (“[A] right to a jury trial does not exist for suits seeking only injunctive relief, which is purely equitable in nature.” (c...