Zelma v. Williams

RICHARD ZELMA, MARTIN PASCO,and AGV SPORTS GROUP, INC., Plaintiffs,

v. DON WILLIAMS, JEFF REPEDE,KATHLEEN PAGANELLI, PHILLIPBROUSSEAU, GERARD D. ANDREWS,and ABSOLUTE RESERVATIONSCENTER, INC., Defendants.

Case No. 6:10-cv-357-Orl-31KRS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

Dated: October 26, 2011

ORDER

This matter comes before the Court without oral argument on cross motions for summary judgment: Defendants' Motion for Summary Judgment (Doc. 113);¹ Supplemental Motion for Summary Judgment (Doc. 121),² the Response (Doc. 143)³ and the Reply (Doc. 145); Plaintiffs'Motion for Summary Judgment (Doc. 123),⁴ and the Responses (Docs. 141, 142),⁵ Plaintiffs have not filed a reply.

I. Overview

Plaintiffs brought suit on March 8, 2010 alleging, inter alia, that Defendants sent unsolicited facsimile advertisements to Plaintiffs in violation of Telephone Consumer Protection Act (the "federal TCPA" or "TCPA")⁶ and the Maryland Telephone Consumer Protection Act (the "Maryland TCPA" or "MDTCPA").⁷ Specifically, Count I asserts a claim on behalf of all Plaintiffs for violations of the TCPA. (Doc. 1, ¶¶ 95-102 and 107). Count II asserts a "claim" for injunctive relief on behalf of all Plaintiffs pursuant to the TCPA. (Doc. 1, ¶¶ 103-105 and 108).⁸ Lastly, Count III asserts a claim on behalf of Plaintiffs Pasco and AGV Sports Group, Inc., only, for violations of the MDTCPA. (Doc. 1, ¶¶ 106 and 109).⁹ Plaintiffs and Defendants now move for summary judgment on all counts pursuant to Federal Rule of Civil Procedure 56.

II. Background

Unless otherwise noted, the following facts are undisputed. In January of 2005, Plaintiffs began receiving unsolicited facsimile advertisements.¹⁰ Although the specific content varied, many of the documents advertised discounted cruises or trips to Orlando and other destinations.¹¹ Combined, Plaintiffs have received more than two-hundred such advertisements between 2005 and 2007.¹² One of the Plaintiffs, Richard Zelma ("Zelma"), is familiar with TCPA, having been involved in approximately one-hundred suits brought under the statute. In an effort to determine the identity of the senders, he called the various phone numbers listed on the ads and came up with the names of a multitude of companies and individuals, including: Wholesale Connection Co., and its president Don Williams; Absolute Reservations Center, Inc., and its officers Kathleen Paganelli and John Repede; Silvertide Investments, its president Jeff Repede and vice president Don Williams; Velocity Wholesale, Inc., its president Gerard Andrews and secretary Phillip Brousseau.¹³ Plaintiffs allege that these companies and individuals were acting together to solicit and sell vacation packages.

The specific process by which the vacation packages were sold, how (and by whom) they were solicited, and the exact relationship between the Defendants is disputed. What is clear is thatWholesale Connection Company ("WCC")¹⁴ and its affiliate Silvertide Investments ("Silvertide"),¹⁵ "bundled together"¹⁶ vacation packages, then entered into "certain contracts" with "independent contractors" for solicitation and sale of the packages. (Doc. 114 at 6; Doc. 113 at 4). Apparently, one of these "independent contractors" is Velocity Wholesale ("Velocity"). According to Defendants, the contracts specified that the agents would "use legal means only to reach out to prospective customers." (Doc. 113 at 4). Other than the formation of these contracts, Defendants claim WCC and Silvertide had no involvement in solicitation. (Doc. 113 at 3). Once the packages were solicited and sold by the independent contractors, Absolute Reservations Center ("ARC")¹⁷ "fulfilled" the packages after being contacted by a customer. In her deposition, Paganelli describes "fulfillment" as, "[b]ook[ing] travel for clients." (Doc. 118, Ex. 1, 18:15). Despite admitting that "certain contracts" for solicitation were entered into, Defendants claim to have "no idea what individuals or entities sent these unsolicited faxes." (Doc. 113 at 4). In contrast, Plaintiffs allege that the Defendants were running a "common enterprise" to market and sell vacation packages through "overlapping companies." (Doc. 123, Ex. 1, ¶ 5). They allege that all the faxes came from a Canadian company called Protus IP Solutions, Inc.,("Protus") and that Protus was hired by Defendants. Further, it is undisputed that the unsolicited fax ads sent by Protus advertised the Defendants' vacation packages.

Defendants argue that the Court should grant summary judgment in their favor because: (1) Williams, Paganelli, and Repede cannot be held liable in their individual capacity; and (2) there is no evidence to tie any of the Defendants to the unsolicited faxes. In their Motion, Plaintiffs argue the Court should grant summary judgment in their favor because the close relationship between the companies demonstrates sufficient connection to hold them liable under the statute. For the reasons discussed infra, the Court will deny summary judgment for all parties.

III. Standards

A. Summary Judgment

A party is entitled to summary judgment when it can show that there is no genuine issue as to any material fact. FED. R. CIV. P. 56(c); Beal v. Paramount Pictures Corp., 20 F.3d 454, 458 (11th Cir. 1994). Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Watson v. Adecco Employment Servs., Inc., 252 F. Supp. 2d 1347, 1351-52 (M.D. Fla. 2003). In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255.

When a party moving for summary judgment points out an absence of evidence on adispositive issue for which the non-moving party bears the burden of proof at trial, the non-moving party must "go beyond the pleadings and by [its] 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 Corp., 477 U.S. at 324-25 (internal quotations and citations omitted). Thereafter, summary judgment is mandated against the non-moving party who fails to make a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324-25; Watson, 252 F. Supp. 2d at 1352. The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) ("conclusory allegations without specific supporting facts have no probative value") (citations omitted); Broadway v. City of Montgomery, Ala., 530 F.2d 657, 660 (5th Cir. 1976).

When faced with cross motions for summary judgment a court must consider each motion on its own merits. See Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983). Where both parties "disagree as to the facts and take inconsistent legal theories the mere filing of cross motions for summary judgment does not warrant the entry of such judgment." Id.

B. Telephone Consumer Protection Act

47 U.S.C. § 227(b)(1)(C) provides, in relevant part, that it shall be unlawful "to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement . . . ." Subsection (b)(3) provides for enforcement through a private right of action in state court, "if permitted by the laws or rules of a State." Federal courts do not have federal question jurisdiction under 28.U.S.C. § 1331 over a private suit brought under the TCPA. Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir. 1998). However, in a previous order, this Court held that it could accept jurisdiction under 28.U.S.C. § 1332. (Doc. 14).

The regulations implementing the TCPA, 47 C.F.R. § 64.1200(a)(3), prohibit the use of a "telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." Subsection (f)(8) defines a "sender" as "the person or entity on whose behalf an unsolicited facsimile advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement." The Eleventh Circuit has noted that the TCPA "is essentially a strict liability statute," in that it "does not require any intent for liability except when awarding treble damages." Alea London Ltd. v. American Home Servs., Inc., 638 F.3d 768, 775-76 (11th Cir. 2011) (citing Penzer v. Transp. Ins. Co., 545 F.3d 1303, 1311 (11th Cir. 2008) (stating "[n]umerous courts have determined that the TCPA does not require intent, except when awarding treble damages")); Universal Underwriters Ins. Co. v. Lou Fusz Auto. Network, Inc., 401 F.3d 876, 893 n.3 (8th Cir. 2005) (noting that "[t]he Act makes no exception for senders who mistakenly believe that the recipients' permission or invitation existed." Intent is only relevant in determining whether treble damages should be awarded.). The only exception to liability under the statute is (1) when the sender has an "established business relationship" with the recipient, (2) the sender obtained the fax number through prior consent or because it was voluntarily made available for "public distribution," and (3) the ad contains a notice informing the recipient of the right to "opt out" of future advertisements.¹⁸ See 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3)(iii).¹⁹

The federal TCPA provides that a private plaintiff may recover actual monetary loss or "receive $500 in damages for each such violation, whichever is greater." 47 U.S.C. §...