Opinion
CASE NO. 13-cv-2262-CAB (JMA)
11-20-2014
NICHOLAS ANDREWS, Plaintiff, v. SALLIE MAE, INC., and DOES 1 through 100, Defendants.
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT [Doc. No. 18]
This matter comes before the court on defendant's motion for partial summary judgment. [Doc. No. 18.] Plaintiff responded in opposition, defendant replied, and the parties filed a joint statement of undisputed facts. [Doc. Nos. 23, 27, 26.] On November 19, 2014, the court heard argument. For the reasons set forth below, defendant's motion is granted.
STATEMENT OF THE CASE
Plaintiff Nicholas Andrews filed his complaint in state court on August 15, 2013. [Doc. No. 1-2.] He sues Sallie Mae, Inc. ("defendant") for violation of California's Rosenthal Fair Debt Collection Practices Act, for violation of the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and for intrusion. On September 20, 2013, defendant removed the action here.
Plaintiff alleges that defendant called his cell phone 100 times in the year preceding his filing of the complaint, and 3000 times in the preceding four years. [Id. ¶¶ 13-14.] Plaintiff further alleges that he told defendant on numerous occasions that he did not consent to the calls. [Id. ¶ 15.] As a remedy, plaintiff demands $1,500 in statutory damages for each call, attorney's fees, and costs. [Id. at p.11.]
On April 9, 2014, defendant moved for partial summary judgment on plaintiff's TCPA claim, to the extent the claim arises from calls placed prior to September 17, 2012. [Doc. No. 7.] Defendant argued that a class action settlement in a prior case, Arthur v. Sallie Mae, Inc., Case. No. 10-cv-198-JLR (W.D. Wash) ("Arthur"), barred recovery for calls defendant made prior to September 17, 2012. Plaintiff did not oppose defendant's motion. Instead, plaintiff and defendant jointly moved the court to enter partial summary judgment of dismissal of plaintiff's TCPA claim, to the extent plaintiff sought recovery for calls placed prior to September 17, 2012. [Doc. No. 12.] The court granted the parties' motion and dismissed plaintiff's TCPA claim with respect to calls placed prior to September 17, 2012. [Doc. No. 13.]
On September 12, 2014, defendant filed its pending motion for partial summary judgment. [Doc. No. 18.] Defendant asks the court to hold that, as a result of the Arthur settlement, plaintiff "is deemed to have provided prior express consent as of September 17, 2012 to receive calls through the use of an automated dialing system and/or an artificial or prerecorded voice." [Id. at 2.]
STATEMENT OF THE UNDISPUTED FACTS
Most of the facts relevant to defendant's motion relate to the Arthur class action. On February 2, 2010, Mark Arthur filed a putative class action in the United States District Court for the Western District of Washington, against Sallie Mae, for violations of the TCPA. See Case No. 2:10-cv-198-JLR, Doc. No. 1 (W.D. Wash. February 2, 2010). The named parties in Arthur reached a settlement and signed an Amended Settlement Agreement in October 2011. [Doc. No. 18-4 at 2.] The Agreement states that any settlement class member who "does not submit a valid and timely Revocation Request will be deemed to have provided prior express consent to the making of Calls by Sallie Mae or any other affiliate or subsidiary of SLM Corporation to any phone numbers reflected in such entities' records." [Id. at 11.] On April 3, 2012, the Arthur court issued an order preliminarily approving the class settlement and directing notice to absent class members. [Doc. No. 26 ¶ 2; Doc. No. 18-5 at 2.]
Plaintiff was a member of the Arthur settlement class. [Doc. No. 26 ¶ 1.] On April 15, 2012, the settlement administrator emailed notice of the Arthur settlement to plaintiff. [Doc. No. 18-2 ¶ 5.] The notice informed plaintiff that "Sallie Mae has agreed to stop making automated calls to the cell phones of Class Members who file a valid revocation request.";; [Doc. No. 18-2 at 6] (emphasis added). The notice informed plaintiff how to submit a Revocation Request and cautioned: "If you do nothing, you will not stop the automated calls nor [sic] receive any monetary award, and you will also lose the right to sue." [Id. at 7] (emphasis in original). Plaintiff did not opt out of the Arthur class settlement and did not submit a Revocation Request to the settlement administrator. [Doc. No. 26 ¶¶ 5, 9.]
On September 17, 2012, the Arthur court entered a Settlement Order and Final Judgment. [Id. ¶ 10; Doc. No. 18-6.] The Final Judgment incorporates the provisions of the parties' Amended Settlement Agreement and defines the Settlement Class as:
All persons to whom, on or after October 27 2005 and through September 14, 2010, Sallie Mae, Inc. or any other affiliate or subsidiary of SLM Corporation placed a non-emergency telephone Call to a cellular telephone through the use of an automated dialing system and/or an artificial or prerecorded voice. Excluded from the Amended Settlement Class are . . . all persons who validly request exclusion from the Settlement Class.[Doc. No. 18-2 ¶ 6.]
The Final Judgment further states that "each Settlement Class Member . . . will be deemed to have fully released and forever discharged Sallie Mae . . . as of the date of the Final Approval Order . . ." for claims that arise out of the Telephone Consumer Protection Act. [Id. ¶ 9.]
DISCUSSION
A. Legal Standard
"The court shall grant 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). A fact is material if, under governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine "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 absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 324). Inferences drawn from the underlying facts are viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). B. Analysis
Defendant asks the court to find as a matter of law that plaintiff is deemed to have provided prior express consent, as of September 17, 2012, to receive calls from defendant made through the use of an automated dialing system and/or an artificial or prerecorded voice. [Doc. No. 18 at 2.]
In his opposition to defendant's motion, plaintiff first argues that there is a genuine dispute of fact as to whether he was a member of the Arthur class. Yet plaintiff subsequently acknowledges in the parties' joint statement of undisputed facts that he "is a member of the settlement class in the class action known as [Arthur]." [Doc. No. 26 ¶ 1.]
Next, plaintiff challenges the Arthur court's authority to approve the Arthur class settlement's provision relating to prior express consent. Namely, plaintiff argues that he cannot be deemed to have given his prior express consent to automated calls from defendant as of September 17, 2012, because this would conflict with a Federal Communications Commission Declaratory Ruling, In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 564 (2008).
But the court does not find that the Arthur settlement conflicts with FCC precedent. The FCC has repeatedly held that "persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary." Id. (quoting In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752 (1992)). Here, plaintiff received notice of the Arthur settlement, including of the consequence that if he did not opt out or submit a Revocation Request, he would "not stop the automated calls" and would "also lose the right to sue." [Doc. No. 18-2 at 7.] By failing to opt out or submit a Revocation Request, plaintiff knowingly released his number to defendant and permitted defendant to call him.
If plaintiff had objections to any terms of the Arthur settlement, he could have done what the settlement notice instructed him to do: opt out or raise objections. [Id. at 6.] Absent a showing of a Due Process violation—which plaintiff here does not assert—plaintiff cannot now collaterally attack the Western District of Washington's approval of the Arthur class settlement. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-812 (1985). As the United States District Court for the Southern District of Florida held in addressing a similar argument from another Arthur class member:
Whether the Arthur court had the authority to approve the revocation request procedure is not properly brought before this Court. That issue could have been addressed upon an appeal from the Arthur Settlement Order and Final Judgment. In the absence of a reversal of this Order and Judgment on appeal, it remains binding upon Plaintiff and is determinative of the motion before this Court.Fostano v. Pioneer Credit Recovery, Inc., No. 13-80511-CIV, 2014 WL 657680, at *4 (S.D. Fla. Feb. 20, 2014).
Plaintiff also argues that the Arthur settlement does not preclude claims for violations of the TCPA occurring after September 14, 2010, because the Arthur class applied only to persons who received automated calls on their cell phones from Sallie Mae between October 27, 2005 and September 14, 2010. [Doc. No. 18-2 ¶ 16.] To the court's bewilderment, this argument directly conflicts with the parties' earlier joint motion for partial summary judgment, in which the parties moved the court "to enter partial judgment of dismissal as to [plaintiff's TCPA claim], barring [p]laintiff's recovery for telephone calls placed by [d]efendant prior to September 17, 2012." [Doc. No. 12 ¶ j.] The parties explained that this relief was justified because, while the Arthur class period ended September 14, 2010, the Final Judgment stated that all class members released all TCPA claims against Sallie Mae arising as of the date of the Final Judgment, September 17, 2012. [Id. ¶ i.] Presumably, plaintiff forgot that he joined this prior motion, which the court granted. [Doc. No. 13.]
Finally, plaintiff contends that, even if he is deemed to have given his prior express consent to defendant's automated calls to his cell phone as of September 17, 2012, he subsequently revoked that consent. Plaintiff supports this argument with his declaration, in which he states, "I have repeatedly revoked any consent [defendant] had over and over again. I orally revoked consent many times prior to 9/10/201 [sic], in between 9/10/2010 and 9/17/2012 and after 9/17/2012";; [Doc. No. 23-2 ¶ 5] (emphasis added).
Defendant responds that the issue of whether plaintiff revoked his consent after September 17, 2012 is not before the court. Rather, defendant only seeks partial summary judgment that plaintiff is deemed to have given his prior express consent as of September 17, 2012. Thus, defendant acknowledges that, with respect to plaintiff's TCPA claim, a factual issue remains as to whether plaintiff revoked his prior express consent subsequent to September 17, 2012.
CONCLUSION
For the reasons set forth above, defendant's motion for partial summary judgment [Doc. No. 18] is GRANTED. Plaintiff is deemed to have given his prior express consent to defendant's automated calls as of September 17, 2012. A genuine dispute of material fact remains as to whether plaintiff subsequently revoked his consent.
IT IS SO ORDERED. DATED: November 20, 2014
/s/_________
CATHY ANN BENCIVENGO
United States District Judge