Breda v. P'ship, Civil Action No. 16-11512-DJC

• Decision Date: 17 November 2017
• Docket Number: Civil Action No. 16-11512-DJC
• Parties: ROBIN BREDA, Plaintiff, v. CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, Defendant.
• Court: U.S. District Court — District of Massachusetts

ROBIN BREDA, Plaintiff, v. CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, Defendant.

Civil Action No. 16-11512-DJC

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

November 17, 2017

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Plaintiff Robin Breda ("Breda") brings two claims against Cellco Partnership d/b/a Verizon Wireless ("Cellco") under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ("TCPA"), for violations of the limitations on making calls using "any automatic telephone dialing system or artificial or prerecorded voice" to a cellular telephone service, 47 U.S.C. § 227(b)(1)(A). D. 1. Cellco has moved for summary judgment. D. 58. Cellco subsequently moved to compel arbitration. D. 71. For the reasons stated below, the Court DENIES Cellco's motion to compel arbitration, D. 71, and ALLOWS its motion for summary judgment, D. 58.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but "must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor." Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). "As a general rule, that requires the production of evidence that is 'significant[ly] probative.'" Id. (quoting Anderson, 477 U.S. at 249) (alteration in original). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

III. Factual Background

Unless otherwise noted, the following material facts are undisputed.¹ Cellco placed calls to Breda's phone number to discuss a Verizon customer's account status in error (the "Verizon Calls"). D. 67, ¶ 5. Cellco had an inaccurate contact phone number for the account, which caused Cellco to continue to call Breda with recorded messages about another person's account status. Id. When Breda received the Verizon Calls, she had moved her phone service and phone number from Cellco to Republic Wireless ("Republic"). Id., ¶ 6. Republic provides telephone service to customers using technology that "prefers" Voice over Internet Protocol ("VoIP") for thetransmission of its customers' calls. Id., ¶ 7. Republic does not have direct access to telephone numbers itself and, therefore, "ported" Breda's telephone number from Cellco to Bandwidth, a third party that provides VoIP service for Republic's customers. D. 67, ¶¶ 8-10. Bandwidth does not provide cellular telephone service and its customers' phone numbers are not cellular telephone numbers, but rather "wireline" numbers. D. 67, ¶¶ 11-12. Breda pays a fixed monthly fee for her phone service through Republic and was not charged on a per call basis for the Verizon Calls. Id., ¶¶ 13-14.

IV. Procedural History

Plaintiffs instituted this action on July 21, 2016. D. 1. The Court has heard the parties on the then ripe, pending motion for summary judgment, D. 58, and took the matter under advisement.² D. 80. Since that hearing, Cellco's motion to compel arbitration, D. 71, has become ripe as Breda has filed its opposition to same, D. 84. The Court now turns to both motions.

V. Discussion

A. Motion to Compel Arbitration

Before reaching the merits of Cellco's motion for summary judgment, Cellco has moved to compel arbitration and dismiss this case, staying consideration of any other pending matters in this case until the Court rules on this motion. D. 71.

Verizon's relationship with Breda was governed by the Verizon Wireless Customer Agreement (the "Agreement"). D. 73-1. Breda contends that the Agreement does not govern the activity forming the basis of her TCPA claim in this case. The Agreement defines the terms of Breda's "service" provided by Verizon. D. 73-1 at 2. The Agreement defines Breda's service as"allowances and features, where you can use them . . . and their monthly and pay-per-use charges." Id. The Agreement states that when a phone number is ported to another provider, Verizon treats such a request "as though you asked us to cancel your Service for that number." Id. at 4. The arbitration clause of the Agreement states that it applies to "ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND SERVICES YOU RECEIVE FROM US." Id. at 9.

"A party who is seeking to compel arbitration must demonstrate 'that a valid agreement to arbitrate exists, that the movant is entitled to invoke the arbitration clause, that the other party is bound by that clause, and that the claim asserted comes within the clause's scope.'" Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa & Casino, 640 F.3d 471, 474 (1st Cir. 2011) (quoting Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d 367, 375 (1st Cir. 2011)). "Whether or not a company is bound to arbitrate . . . is a matter to be determined by the court." Litton Fin. Printing Div. v. N.L.R.B., 501 U.S. 190, 208 (1991) (citing AT&T Techs., Inc. v. Comm'ns Workers, 475 U.S. 643, 651 (1986)). If the agreement a party seeks to enforce has expired, there is still a presumption "in favor of post-expiration arbitration of matters unless 'negated expressly or by clear implication'" in the contract. Litton, 501 U.S. at 204 (quoting Nolde Bros., Inc. v. Bakery Workers, 430 U.S. 243, 255 (1977)). The First Circuit has interpreted this exception to the presumption as a two-pronged inquiry: first, to "determine if the particular dispute has its real source in the contract," and if that is established, to "consider whether postexpiration arbitration of the issue was negated expressly or by clear implication." United Parcel Serv., Inc. v. Union De Tronquistas De P.R., Local 901, 426 F.3d 470, 473 (1st Cir. 2005). Because Breda ported her phone service from Verizon to Republic, under the terms of the Agreement the Court finds that the Agreement was terminated before the Verizon Calls that form the basis of Breda'sclaims. Accordingly, the Court applies the post-expiration arbitration clause analysis laid out in Litton and United Parcel Serv., Inc. to the Agreement.

The Court concludes that the source of the dispute in this case does not arise out of the Agreement. While the undisputed facts demonstrate that Breda used to have a cellular phone plan with Verizon and acquired both equipment and a phone number while that plan was active, D. 67, ¶¶ 3-5, those facts alone do not link the viability of her TCPA claims to her prior Verizon service, as Cellco contends. It is undisputed that the Verizon Calls that form the basis of Breda's TCPA claims were intended for another Verizon customer. D. 67, ¶ 5. In other words, the Verizon Calls did not relate to Breda's service when she was a Verizon customer or the Agreement governing that service. Other courts facing a similar issue have found that arbitration clauses should not be enforced against customers or former customers when the TCPA suit "aris[es] from a completely separate incident" than the parties' preexisting commercial relationship. In re Jiffy Lube Int'l, Inc., 847 F. Supp. 2d 1253, 1263 (S.D. Cal. 2012); see Wagner v. Discovery Bank, No. 12-cv-02786-MSK-BNB, 2014 WL 128372, at *5 (D. Colo. Jan. 13, 2014). This type of TCPA claim can be distinguished from claims "concern[ing] [] accounts [plaintiffs] had already opened with Defendants and Plaintiffs' ongoing responsibility to make payments on those accounts." Cayanan v. Citi Holdings, Inc., 928 F. Supp. 2d 1182, 1208 (S.D. Cal. 2013). Accordingly, Cellco's motion to compel arbitration, D. 71, is denied. The Court now proceeds to the merits of Cellco's motion for summary judgment.

B. TCPA

Cellco argues that Breda's claims fail as a matter of law because the phone calls that she received fall outside the purview of the TCPA. Breda alleges that Cellco violated 47 U.S.C. § 227(b)(1)(A) both strictly and willfully, which prohibits making "any call (other than a call madefor emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice," id., to, inter alia, "any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call." 47 U.S.C. § 227(b)(1)(A)(iii) ("Section 227(b)(1)(A)(iii)"). "The elements of this type of TCPA claim are: (1) the defendant called a cellular telephone service or a service for which the called party is charged on a per call basis; (2) using an [Automated Telephone Dialing System, ("ATDS") ]; and (3) without the recipient's prior consent." Karle v. Sw. Credit Sys., No. 14-30058-MGM, 2015 WL 5025449, at *6 (D. Mass. June 22, 2015), report and recommendation adopted sub nom. Karle v. Sw. Credit Sys., Ne. Utilities Serv. Co., No. 14-30058-MGM, 2015 WL 5031966 (D. Mass. Aug. 25, 2015).

1. Breda's Phone Number Is Not A Per-Charge Service Under The TCPA

Breda's phone number is not "assigned" to a service for which she was charged for the Verizon Calls because she paid a flat monthly fee for unlimited calls. Cellco points to...