Andersen v. Harris & Harris, Ltd.
| Decision Date | 21 April 2014 |
| Docket Number | Case No. 13-CV-867-JPS |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | DEAN A. ANDERSEN, Plaintiff, v. HARRIS & HARRIS, LTD., Defendant. |
The plaintiff, Dean Andersen, initiated this suit on July 30, 2013. (Docket #1). He alleges that the defendant, Harris & Harris, Ltd. ("H&H"), violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §§ 227, et seq., by using an automated telephone dialing system to place collections calls to him. (Docket #1, ¶¶ 26-38). The parties filed cross-motions for summary judgment, under a modified briefing schedule. (Docket #41, #42, #50). The parties have fully briefed those motions (Docket #43, #48, #54, #56), and the Court has received ample briefing on Mr. Harris' recently-filed motion to strike (Docket #50, #53, #54, #56). The Court thus turns to resolve the motions, first recounting the pertinent facts, then resolving the motion to strike before addressing the parties' cross-motions for summary judgment.
Before beginning its discussion of the factual background of this case, the Court must first discuss Mr. Andersen's serious failures to follow the Eastern District's Civil Local Rules.
The Court begins its discussion with a primer on the Civil Local Rules of the Eastern District of Wisconsin. Civil Local Rule 56 governs submissions of summary judgment materials. Under Civil Local Rule 56, movants must file "a statement of proposed material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter of law." Civil L.R. 56(b)(1)(C). Failure to submit that statement "constitutes grounds for denial of the motion." Civil L.R. 56(b)(1)(C)(iii). The nonmovant must then file a response to the movant's statement of proposed facts, either admitting or denying each proposed fact, and listing any additional proposed facts that might require the denial of summary judgment. Civil L.R. 56(b)(2)(B)(i-ii). Finally, the movant must reply to any additional facts submitted by the nonmovant, either admitting or denying those facts. Civil L.R. 56(b)(3)(B). Our local rules are very clear: "The Court will deem uncontroverted statements of material fact admitted solely for the purpose of deciding summary judgment." Civil L.R. 56(b)(4).
Mr. Andersen, through counsel, has not followed any of those rules.1 He barely remembered to file the statement of fact required of him as a movant for summary judgment under Civil L.R. 56(b)(1)(C). (See Docket #45,#46). In fact, it was only because H&H's counsel advised Mr. Andersen's counsel of his failure to submit proposed findings of fact that Mr. Andersen's counsel did so. (See Docket #56, at 1-2). And then, because that submission was untimely, he relied on the Court's granting his motion to file that submission late. (Docket #45). Had H&H's counsel not been quite so upstanding, instead allowing the non-submission to stand, then the Court would have been within its discretion to deny Mr. Andersen's motion for summary judgment outright pursuant to Civil L.R. 56(b)(1)(C)(iii).
Equally troubling is Mr. Andersen's later failure to file responses to H&H's proposed additional facts. The Court realizes that this proceeding may appear somewhat confusing, because of the modified briefing schedule (Docket #41), but that is not an excuse for the total failure to file responses to an opposing party's statements of fact. Under either Civil L.R. 56(b)(2)(B) and Civil L.R. 56(b)(3)(B), Mr. Andersen had the obligation to respond to H&H's additional proposed facts, and potentially to raise any new proposed material facts that he believed should persuade the Court to deny H&H's separate motion for summary judgment (Docket #50). That is because Mr. Andersen was acting as both movant and nonmovant at the time he filed his second brief: his second brief was, in effect, both a reply brief in favor of his motion for summary judgment and a response brief in opposition to H&H's motion for summary judgment. (Docket #41). If nothing else, Mr. Andersen should have filed responses to H&H's additional proposed findings. Without those responses, the Court lacks a firm grasp of the basis for any factual disputes that Mr. Andersen may rely on in his second brief. Likewise, his failure to file responses makes it very difficult for H&H to address any factual disputes in its reply brief—because H&H did not receive full or formal notice of those factual disputes from Mr. Andersen, its ability torespond to or explain the importance of those disputes was substantially diminished.
This District has adopted its Civil Local Rules for a reason. It views them as best practices, designed to ensure that the parties and the Court best understand the facts and arguments in each case. Violation of the Civil Local Rules—particularly when the violation involves submissions to the Court—are serious, because the violation seriously diminishes the abilities of the parties and the Court to understand the totality of the situation before it.
Thus, the Court predominantly agrees with H&H: it must deem H&H's additional proposed facts as admitted, as a result of Mr. Andersen's failure to respond to them, and pursuant to Civil L.R. 56(b)(4). This is especially true in light of the fact that Civil L.R. 56(b)(4) states that the "Court will deem uncontroverted statements of material fact admitted solely for the purpose of deciding summary judgment" (emphasis added). Moreover, the Seventh Circuit has routinely noted the importance of allowing district courts to enforce their local rules: "'Because of the important function local rules like [the Northern District of Illinois' local rule on summary judgment] serve in organizing the evidence and identifying disputed facts, we have consistently upheld the district court's discretion to require strict compliance with those rules.'" Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (). To be sure, Mr. Andersen has raised some potentially-valid objections to the evidence on which H&H based a number of its additional proposed facts. The Court will address those objections because it is not fully comfortabletreating facts as admitted if those facts are based upon inappropriate or inadmissible evidence. Nonetheless, the Court will otherwise treat H&H's additional proposed facts as admitted, particularly in recounting this factual background. The Court will address the evidentiary objections more fully in a separate section below.
Mr. Andersen opened an account with WE Energies in December of 2003. (DPFF ¶ 26). In connection with that account, he received utility services at eleven separate meters (DPFF ¶ 29; PPFF ¶ 1) and agreed to pay for those services (DPFF ¶ 26).2
Of course, when Mr. Andersen opened his account, he had to provide personal information, including contact information, such as his cell phone number. (DPFF ¶ 27). WE Energies' records reflect that Mr. Andersen called twice in the month of May, requesting that WE Energies employees call him back on his cell phone number—(920) 217-2839, which the Court will refer to as Mr. Andersen's "cell phone number" for the balance of this opinion, because it is the number at which Mr. Andersen received the allegedly-illegal calls in question. (DPFF ¶¶ 34-35). Shortly thereafter, Mr. Andersen called to change his contact information: he added his cell phone number as his "Business Phone," later changing it to his "Cell," and finally his primary phone number in WE Energies' account records. (See DPFF ¶¶ 27-28, 32, 37).WE Energies would not have changed that information unless Mr. Andersen specifically requested that they do so.3
Mr. Andersen resided at 505 Lake Street, in Waukesha, Wisconsin, and received utility service from WE Energies at that location. (PPFF, ¶ 1). He apparently has no recollection of the year that he moved to that address, but he has used his cell phone number since 2007, prior to the time he moved to that address. (DPFF ¶¶ 44-45). He eventually was evicted from 505 Lake Street, and therefore stopped receiving services at that address. (DPFF ¶ 50).
He later stopped paying his account entirely, on July 7, 2011. (DPFF ¶ 41). At that time, WE Energies hired H&H to collect Mr. Andersen's debt. (DPFF ¶ 42). In connection with that collection, WE Energies provided H&H with the primary phone number listed on Mr. Andersen's account: his cell phone number, (920) 217-2839. (DPFF ¶ 42).
H&H started collections calls to that phone number in October of 2011. (PPFF ¶ 2). It primarily used a TouchStar dialing system, which automatically calls phone numbers and then leaves artificial, prerecordedvoicemail messages. (PPFF ¶¶ 3, 6-7, 14). During this time, Mr. Andersen's outgoing voicemail greeting message stated:
any and all automated calls and automated voicemail messages to this cell phone are strictly forbidden and any and all consent under 47 U.S.C. section 227 has been and is hereby revoked. If you are not an automated call or automated recording, please leave a message and someone will get back to you shortly.
(PPFF ¶ 13). Of course, because H&H was using a dialer system, it never received that message, and so continued to call Mr. Andersen's cell phone number. In the end, it called Mr. Andersen's cell phone number approximately 163 times. (See PPFF ¶ 3, and Def.'s Resp.). Finally, a live agent reached Mr. Andersen, at...
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