Moore v. Dish Network L.L.C.

• Decision Date: 15 October 2014
• Docket Number: Civil Action No. 3:13–CV–36.
• Citation: 57 F.Supp.3d 639
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Chester MOORE, Plaintiff, v. DISH NETWORK L.L.C., Defendant.

57 F.Supp.3d 639

Chester MOORE, Plaintiff

v.DISH NETWORK L.L.C., Defendant.

Civil Action No. 3:13–CV–36.

United States District Court, N.D. West Virginia, Martinsburg.

Signed Oct. 15, 2014.

Harry F. Bell, Jr., The Bell Law Firm PLLC, Charleston, WV, Michael J. Vitoria, William P. Howard, Morgan & Morgan, P.A., Tampa, FL, Rachel J. Goldfarb, The Bell Law Firm, PLLC, Highlands Ranch, CO, for Plaintiff.

Amber M. Moore, Bridget M. Cohee, Lucien G. Lewin, Steptoe & Johnson, PLLC, Martinsburg, WV, Benjamen Edward Kern, Eric Larson Zalud, Benesch Friedlander Coplan & Aronoff LLP, Cleveland, OH, for Defendant.

MEMORANDUM OPINION AND ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GINA M. GROH, District Judge.

Currently pending before the Court are Plaintiff Chester Moore's Renewed Motion for Partial Summary Judgment [ECF 107] and Defendant DISH Network L.L.C.'s Motion for Summary Judgment [ECF 108]. For the following reasons, the Court GRANTS IN PART Moore's Renewed Motion for Partial Summary Judgment and GRANTS IN PART DISH's Motion for Summary Judgment.

I. Background

A. Facts

On December 19, 2011, Chester Moore signed an application with Cintex wireless for a cell phone subsidized by the federal Lifeline program. At the time of his application, Moore had a cell phone with another service provider through that program. The Lifeline program provides low-income consumers with subsidized cell phone service. See 47 C.F.R. § 54.401. To qualify for this program, “a consumer must not already be receiving a Lifeline service.” Id. § 54.409(c). In response to his application, Cintex provided Moore with a cell phone with a number ending in 2882.

Moore claims that, after he received the Cintex cell phone, DISH Network L.L.C. called the 2882 number multiple times between January 2012 through August 2012 from numbers ending in 8047 and/or 8290. Am. Compl. ¶ 14. Moore has never been a DISH customer.

DISH admits that it called the 2882 number thirty-one times regarding a customer's past due account from the 8047 number. Specifically, it is undisputed that DISH made the following thirty-one phone calls to the 2882 number:

1. 1/8/12 at 2:49 p.m.

2. 1/10/12 at 11:17 a.m.

3. 1/14/12 at 3:23 p.m.

4. 1/26/12 at 1:51 p.m.

5. 1/28/12 at 10:42 a.m.

6. 1/29/12 at 3:58 p.m.

7. 1/31/12 at 1:43 p.m.

8. 2/8/12 at 3:00 p.m.

9. 2/10/12 at 3:34 p.m.

10. 2/10/12 at 3:35 p.m.

11. 2/14/12 at 12:46 p.m.

12. 2/15/12 at 12:42 p.m.

13. 2/16/12 at 11:12 a.m.

14. 2/18/12 at 3:56 p.m.

15. 2/24/12 at 6:30 p.m.

16. 2/25/12 at 10:49 a.m.

17. 3/6/12 at 1:20 p.m.

18. 3/6/12 at 5:25 p.m.

19. 3/12/12 at 3:35 p.m.

20. 3/20/12 at 3:19 p.m.

21. 3/26/12 at 11:42 a.m.

22. 5/29/12 at 12:11 p.m.

23. 6/4/12 at 9:43 a.m.

24. 6/10/12 at 9:31 a.m.

25. 6/16/12 at 8:33 a.m.

26. 6/22/12 at 8:41 a.m.

27. 6/28/12 at 9:52 a.m.

28. 7/5/12 at 11:33 a.m.

29. 7/11/12 at 12:51 p.m.

30. 7/17/12 at 12:22 p.m.

31. 7/23/12 at 8:34 p.m.

DISH made these calls using a Cisco UCCE Outbound Option, Version 8.5.4 dialer (“Cisco Dialer”). A prerecorded message was played on all calls except for calls 1, 4 through 7, 11 through 18, 20, and 21 because those calls were not met with a positive voice (i.e., no one answered the call).

During the period in which these calls occurred, Moore called DISH several times and informed DISH that it was calling the wrong number and asked DISH to stop calling the 2882 number. On June 11, 2012, in response to one of these calls, DISH added the 2882 number to its do-not-call list. Pl.'s Notice of Filing, Oct. 29, 2013, ECF 48–7 at 8. Additionally, DISH's notes for the account underlying the phone calls reflect that Moore called DISH on June 22, 2012, July 12, 2012, and July 19, 2012 concerning the calls to the 2882 number. Specifically, these notes read: (1) June 22–“added [the 2882 number] to the internal DNC list”; (2) July 12—“stated Chester (not a DISH customer) called and stated that he was getting calls to his phone [the 2882 number]”; and (3) July 19—“Mr Chester Moore, upset w/ calls on cell phn, says contact 4 months, phn # no longer belongs.” Pl.'s Notice of Filing, Oct. 29, 2013, ECF 48–5 at 47–48 (capitalization omitted).

B. Procedural History

On March 22, 2013, Moore filed a complaint raising the single claim that DISH violated the Telephone Consumer Protection Act (“TCPA”) each time it called the 2882 number. On October 29, 2013, Moore moved for partial summary judgment, seeking a finding that DISH is liable for the thirty-one calls it made to the 2882 number. DISH moved for the Court to defer consideration of this motion or deny it, arguing that more time was needed for discovery. The Court denied Moore's motion pursuant to Federal Rule of Civil Procedure 56(d) because DISH did not have adequate time to conduct discovery to oppose the motion.

Additionally, Moore moved to amend his complaint to add The CBE Group, Inc., a third-party collection agent, as a party because he discovered it called the 2882 number concerning the past due DISH account. The Court granted this motion. Moore later voluntarily dismissed The CBE Group, Inc. from this matter.

On August 14, 2014, Moore filed a Renewed Motion for Partial Summary Judgment. Moore again argues he is entitled to summary judgment as to the thirty-one phone calls that DISH admits it made to the 2882 number. He seeks a finding that DISH is liable for these calls and an award of statutory damages. On August 15, 2014, DISH filed a Motion for Summary Judgment, arguing that it is not liable for the thirty-one calls or any additional calls made to the 2882 number.

II. Standard of Review

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, the Court must conduct “the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. 2505.

The party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). That is, once the movant has met its burden to show an absence of material fact, the party opposing summary judgment must then come forward with affidavits or other evidence demonstrating there is indeed a genuine issue for trial. Fed.R.Civ.P. 56 ; Celotex Corp., 477 U.S. at 323–25, 106 S.Ct. 2548 ; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). A motion for summary judgment should be denied “if the evidence is such that conflicting inferences may be drawn therefrom, or if reasonable men might reach different conclusions.” Phoenix Savs. & Loan, Inc. v. Aetna Cas. & Sur. Co., 381 F.2d 245, 249 (4th Cir.1967) ; see also id. at 253 (noting that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge”).

III. Discussion

The TCPA prohibits the making of a call to a cell phone in the following circumstances:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States-

(A) to make any call (other than a call made for 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—

...

(iii) to 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). “A person or entity” can bring a claim to recover the greater of actual damages or $500 for a violation of § 227(b)(1)(A)(iii). Id. § 227(b)(3). A court may award treble damages for a willful or knowing violation. Id.

Moore requests that the Court find DISH liable for the thirty-one calls that DISH admits it made to the 2882 number and award him damages in the amount of $500 for calls 1 through 24 and treble damages for calls 25 through 31.

DISH argues that it is not liable for these calls, but does not dispute Moore's requested damages should the Court find liability. In contesting liability, DISH makes the following arguments that relate to all thirty-one calls: (1) Moore cannot recover because he violated the Lifeline program when obtaining the cell phone underlying this case; (2) Moore cannot recover because he was not charged for the calls; and (3) Moore lacks statutory standing because he is not the “called party” referenced in the TCPA. Next, DISH argues it is entitled to summary judgment as to calls 1, 4 through 7, 11 through 18, 20, and 21 because it did not make them using an automatic telephone dialing system (“ATDS”) or an artificial or prerecorded voice. Then, DISH contends Moore cannot recover for calls 30 and 31 because he lacks Article III and statutory standing. Finally, DISH argues that, to the extent Moore seeks to recover for calls made from the 8290 number or any calls in addition to those DISH has admitted, Moore cannot do so because there is no evidence connecting DISH to the 8290 number or...