Cin-Q Automobiles, Inc. v. Buccaneers Ltd., Case No: 8:13-cv-01592-AEP
| Decision Date | 17 December 2014 |
| Docket Number | Case No: 8:13-cv-01592-AEP |
| Parties | CIN-Q AUTOMOBILES, INC., and MEDICAL & CHIROPRACTIC CLINIC, INC, Florida corporations, individually and as the representative of a class of similarly situated persons, Plaintiffs, v. BUCCANEERS LIMITED PARTNERSHIP and JOHN DOES 1-10, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on the Defendant's Motion for Final Summary Judgment ("Def.'s Mot.), ECF Nos. 129, 130-37, 142, 155, 158, 160, and Plaintiffs' response in opposition thereto , ECF Nos. 144, 159, as well as Plaintiffs' Motion and Memorandum of Law in Support of Summary Judgment , ECF Nos. 138, 145, 156-57, 159, and Defendant's response in opposition thereto ("Def.'s Resp."), ECF No. 143. For the reasons that follow, Defendant's motion (ECF No. 129) is DENIED, and Plaintiffs' motion (ECF No. 138) is DENIED.
This action arises from a complaint filed by Plaintiffs Cin-Q Automobiles, Inc. ("Cin-Q") and Medical & Chiropractic Clinic, Inc. ("MCC") (collectively, "Plaintiffs"). Am. Compl., ECF No. 70. Plaintiffs, individually and as the representative of similarly-situated persons, seek to recover for purported unsolicited facsimiles transmitted by Defendant BuccaneersLimited Partnership ("BLP"). Am. Compl. 1, ECF No. 70. Plaintiffs assert their private right of action pursuant to the Junk Fax Prevention Act of 2005, 47 U.S.C. § 277 ("JFPA"), and also seek to recover through common law conversion claims. Am. Compl. 9, 14, ECF No. 70.
On January 3, 2014, this Court granted BLP's motion to bifurcate liability and class certification issues, determining that the appropriate standard of liability should be addressed prior to any consideration of class certification. Order 4, ECF No. 68. The parties subsequently filed the instant cross-motions for summary judgment, as well as notices of supplemental authority detailing their respective positions on the recent Eleventh Circuit Court of Appeals opinion relating to this matter, which the Court construes as amendments to the parties' motions for summary judgment.
In January 2009, Matthew Kaiser ("Kaiser"), an employee of BLP tasked with new business development, contacted a Steven Simms ("Simms"), Executive Vice President of Marketing with FaxQom—a purported entity claiming to be in the business of facsimile marketing. Def.'s Mot. 4, App. at 4-9, ECF No. 130. Kaiser, having discussed legal concerns with Simms as well as FaxQom's vast library of "opt-in" numbers, executed a fax indemnity agreement and engaged FaxQom to send a series of facsimiles advertising Tampa Bay Buccaneers tickets. Def.'s Mot. 5, Clement Dep. at 184-186, Mar. 10, 2013, ECF No. 132-1; Def.'s Mot. 6, App. at 34, ECF No. 130.
Several months later, in July 2009, BLP directed FaxQom to fax such advertisements to numbers comprising a series of area codes in and around the greater Tampa Bay area. Pls.' Mot. 4, Ex. C at 12, 138-4. One of the faxes, sent to area code 813 on July 15, 2009, was received by MCC. Pls.' Mot. 4, Ex. D at 20, ECF No. 138-5. Following this first wave offaxes, BLP received multiple complaints from Tampa Bay area residents, reacting internally by requesting that FaxQom remove the individuals' fax numbers from future lists. Pls.' Mot. 5, Ex. C at 22-26, ECF No. 138-4.
Subsequently, on August 13, 2009, BLP directed FaxQom to send a second wave of faxes to the same series of area codes. Pls.' Mot. 6, Ex. C at 31, ECF No. 138-4. Cin-Q alleges it received one of the fax transmissions on August 19, 2009. Pls.' Mot. 6, Ex. E at 267-68, ECF No. 138-6. As with the initial round of faxes, objections followed the August 2009 fax transmissions. One such notice came from attorney Phyllis J. Towzey, who warned BLP that it was violating the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227(b)(1)(C), and offered to settle for $1,000—later debating BLP over the meaning and purpose of "sender" liability under the statute. Pls.' Mot. 7, Ex. F, ECF No. 138-7. Another, more formal complaint came from Cin-Q, who filed a class-action lawsuit against BLP on August 28, 2009. Pls.' Mot. 7, Ex. H, 138-9, ECF No. 138-9.
On October 2, 2009, BLP sent a letter to FaxQom demanding indemnification and legal defense. Pls.' Mot. 8, Ex. C at 36, ECF No. 138-4. Several months later, on May 18, 2010, BLP directed FaxQom to send a third wave of faxes, this time containing indemnification language. Pls.' Mot. 8, Ex. C at 38, ECF No. 138-4. MCC once again received a facsimile transmission during this cycle. Pls.' Mot. 9, Ex. J, ECF No. 138-11. Following the third transmission sequence, BLP received a letter from the Florida Attorney General advising the company to immediately stop the facsimile transmissions. Pls.' Mot 9, Ex. C at 48, ECF No. 138-4. BLP ordered FaxQom to stop transmitting faxes on June 9, 2010, and several days later notified FaxQom that no future faxes would be sent pending the result of legal research on the matter. Pls.' Mot. 10, Ex. C at 53-54, ECF No. 138-4.
Subsequent deposition testimony appears to have unveiled a complicated web of conflicting facts underlying the relationships set forth in the above-mentioned sequence of events. For example, testimony points to an individual named Michael Clement ("Clement") as having operated under the alias of Simms, a fiction created by Clement to "keep his name out of it." Def.'s Mot. 11, Michael Wayne Clement Dep. at 68-80, Mar. 10, 2014, ECF No. 132. Further, it appears that FaxQom is not a legal entity, and, unbeknownst to BLP, may not have sent any facsimile transmissions itself, Def.'s Mot. 11, Clement Dep. at 79, ECF No. 132, instead delegating the task to third-party databases and transmitters, who, in turn, delegated tasks to other third parties. Def.'s Mot. 12, Clement Dep. at 254-55, ECF No. 132-1; Def.'s Mot. 13, Jonathan Nelson Dep. at 19, Jan. 16, 2014, ECF No. 134. It is unclear precisely how far removed BLP was from the party that ultimately undertook physically pressing the send button in every transmission, but BLP generally appears to have been two to three degrees of connection removed from the transmissions. Def.'s Mot. 13, Nelson Dep. at 19, 35, ECF No. 134; Def.'s Mot. 13, Brian Sheekey Dep. at 42, Dec. 26, 2013, ECF No. 136.
Summary judgment is appropriate "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); see also Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008). In considering a summary judgment motion, the Court must remember that "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id.; see also Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1280(11th Cir. 2004) . Moreover, "although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000).
"The party moving for summary judgment 'bears the initial responsibility of informing the district court of the basis for its motion.'" Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314-15 (11th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The ultimate inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. Additionally, summary judgment is particularly appropriate where the parties present only questions of law on an issue and no disputed facts. See Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir. 2011).
If, after having reviewed the record through the prism of Federal Rule of Civil Procedure 56, "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," summary judgment ought be granted. Jackson, 372 F.3d at 1280 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)) (internal quotation marks omitted).
The TCPA, in relevant part, makes it unlawful for any person to use a fax machine, computer or other device to send an unsolicited advertisement to a fax machine if the sender or recipient is in the United States. 47 U.S.C. § 227(b)(1)(C); e.g., Palm Beach Golf Ctr.-Boca,Inc. v. Sarris, 981 F. Supp. 2d 1239, 1247 (S.D. Fla. 2013) rev'd and remanded on other grounds, 771 F.3d 1274 (11th Cir. 2014); Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 683 (7th Cir. 2013), reh'g denied (Sept. 24, 2013), cert. denied sub nom. Turza v. Holtzman, 134 S. Ct. 1318 (2014). The statute provides a private right of action for injunctive relief and for damages equal to the actual monetary loss or $500 for each violation. 47 U.S.C. § 227(b)(3).
BLP asserts summary judgment is warranted in its favor because, as a matter of law, Plaintiffs are unable to establish that BLP used a facsimile machine to send the advertisements at issue. Def.'s Mot. 13, ECF No. 129. According to BLP, a violation of the TCPA requires that a "sender" be an entity actually using a facsimile machine to send facsimiles. Def.'s Mot. 13-14, ECF No. 129. BLP also contends that, absent direct participation, an agency relationship is required to establish BLP's liability under the statute—something BLP further argues is absent in the instant...
To continue reading
Request your trial