Charvat v. ECHOSTAR SATELLITE, LLC

• Decision Date: 15 December 2009
• Docket Number: Case No. 2:07-cv-1000.
• Citation: 676 F. Supp.2d 668
• Parties: Philip J. CHARVAT, Plaintiff, v. ECHOSTAR SATELLITE, LLC, Defendant.
• Court: U.S. District Court — Southern District of Ohio

676 F.Supp.2d 668

Philip J. CHARVAT, Plaintiff, v. ECHOSTAR SATELLITE, LLC, Defendant.

Case No. 2:07-cv-1000.

United States District Court, S.D. Ohio, Eastern Division.

December 15, 2009.

John William Ferron, Jessica G. Fallon, Lisa A. Wafer, Ferron & Associates, Columbus, OH, for Plaintiff.

Benjamen E. Kern, Law Office of Benjamen E. Kern, Hilliard, OH, Eric Larson Zalud, Benesch Friedlander Coplan & Aronoff, Cleveland, OH, Ryan P. Hatch, Benesch Friedlander Coplan & Aronoff, LLP, Columbus, OH, for Defendant.

MEMORANDUM OPINION & ORDER

JOHN D. HOLSCHUH, District Judge.

Plaintiff Philip J. Charvat filed suit against Defendant EchoStar Satellite, LLC ("Echostar"), alleging violations of the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227, and the Ohio Consumer Sales Practices Act ("OCSPA"), Ohio Revised Code § 1345.02. He also brought common law claims of invasion of privacy and nuisance per se. All of his claims arise out of thirty telemarketing calls allegedly made to his residence by EchoStar or its authorized agents. This matter is currently before the Court on EchoStar's motion for summary judgment (Doc. 33) and on EchoStar's unopposed motion for leave to file a response to Plaintiff's Notice of Supplemental Authority (Doc. 49). For the reasons stated below, the Court grants both motions.

I. Background and Procedural History

EchoStar delivers DISH Network® brand direct broadcast satellite television products and services throughout the United States. (Van Emst Aff. ¶ 3; Ex. A to Mot. Summ. J.) According to the First Amended Complaint, between June of 2004 and August of 2007, Plaintiff received thirty calls from telemarketers attempting to sell DISH Network® brand satellite television programming. Twenty-seven of these calls, placed to Plaintiff's two residential phone lines, were pre-recorded messages (calls 1-21, 23, 24, 27-30) and three calls were placed by live agents (calls 22, 25 and 26). At the conclusion of many of the prerecorded messages, a live operator came on the line. Plaintiff requested on several occasions to be placed on the do-not-call list. (Pl. Aff. ¶ 7; Ex. A to Mem. in Opp'n to Mot. Summ. J.).

Plaintiff recorded and tracked each call. (Id. at ¶¶ 8-9.) Through independent research Plaintiff discovered that the telephone calls were placed by several different companies including DishTV Now, Inc. (calls 3-4, 6-9), Marrik Dish Co. (calls 10 and 13), Marketing Guru, Inc. dba SatelliteSales.com (calls 12, 15, 17-19, 23), JSR Enterprises (calls 20-21, 24), and Dish-Pronto, Inc. (call 22) ("the Retailers"). (Id. at ¶¶ 10-25; Ex. B to Mot. Summ. J.). These particular companies, like thousands of others, had entered into Retailer Agreements with EchoStar whereby they were authorized, as independent contractors, to advertise, promote, and solicit orders for DISH Network® brand programming and to install and activate the necessary satellite television equipment. (Van Emst Aff. ¶¶ 2, 4.) According to Plaintiff, calls 1-2, 11, 14, 16, and 25-30 were placed by callers who identified themselves as working for Dish, Dish Network, or Dish Satellite TV. (Pl. Aff. ¶ 25.)¹

Plaintiff filed suit against EchoStar alleging multiple violations of the TCPA and the OCSPA for each call. He also brought common law claims of invasion of privacy and nuisance per se. On December 16, 2008, 621 F.Supp.2d 549 (S.D.Ohio 2008), this Court issued a Memorandum Opinion and Order granting in part EchoStar's motion for partial judgment on the pleadings, and dismissing Counts 26, 27, 31, and 32 of the First Amended Complaint.

EchoStar has now moved for summary judgment. It essentially argues that because it did not initiate the calls, and because the Retailers who did initiate the calls are independent contractors, EchoStar cannot be held liable for the alleged violations. Likewise, EchoStar maintains that because it did not "knowingly or willfully" violate the law, it cannot be held liable for treble damages under the TCPA or for attorney fees under the OCSPA. EchoStar further argues that because it engaged in no intentional misconduct, Plaintiff's common law tort claims fail as well.

II. Standard of Review

Although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). The standard for summary judgment is found in Federal Rule of Civil Procedure 56(c):

Summary judgment . . . should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

Summary judgment will be granted "only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is . . . and where no genuine issue remains for trial, . . . for the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)). See also Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994).

Moreover, the purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir.1978). The court's duty is to determine only whether sufficient evidence has been presented to make the issue of fact a proper question for the jury; it does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir. 2003).

In a motion for summary judgment, the moving party bears the initial burden of showing that no genuine issue as to any material fact exists and that it is entitled to a judgment as a matter of law. Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir.2003). All the evidence and facts, as well as inferences to be drawn from the underlying facts, must be considered in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Wade v. Knoxville Util. Bd., 259 F.3d 452, 460 (6th Cir.2001). Additionally, any "unexplained gaps" in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

"The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in original). A "material" fact is one that "would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties, and would necessarily affect the application of an appropriate principle of law to the rights and obligations of the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). See also Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. See also Leary, 349 F.3d at 897.

If the moving party meets its burden, and adequate time for discovery has been provided, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The nonmoving party must demonstrate that "there is a genuine issue for trial," and "cannot rest on her pleadings." Hall v. Tollett, 128 F.3d 418, 422 (6th Cir.1997).

When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.

Fed.R.Civ.P. 56(e).

The existence of a mere scintilla of evidence in support of the opposing party's position is insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The nonmoving party must present "significant probative evidence" to demonstrate that "there is more than some metaphysical doubt as to the material facts." Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 340 (6th Cir.1993). The court may however, enter summary judgment if it concludes that a fair-minded jury could not return a verdict in favor of the nonmoving party based on the presented evidence. Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505; Lansing Dairy, Inc., 39 F.3d at 1347.

III. Analysis

A. TCPA and OCSPA Claims

Plaintiff's First Amended Complaint alleges multiple violations of the TCPA and the OCSPA with respect to each call.² The TCPA was enacted by Congress "to protect the privacy rights of citizens by restricting the use of the telephone network for unsolicited advertising." In the Matter of Consumer.Net v. AT & T Corp., 15 F.C.C.R. 281, 282 (1999). The TCPA provides in relevant part:

A person who has received more than one telephone call within any 12-month period by or on

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