Rowan v. Pierce
| Docket Number | CIVIL 20-1648 (RAM) |
| Decision Date | 01 September 2023 |
| Parties | NATHAN ROWAN, individually and on behalf of all others similarly situated Plaintiff v. BROCK PIERCE Defendant |
| Court | U.S. District Court — District of Puerto Rico |
Pending before the Court is Defendant Brock Pierce's (“Pierce” or “Defendant”) Motion for Summary Judgment, accompanied by his Statement of Undisputed Material Facts (“SUMF”). (Docket Nos. 153 and 154). For the reasons discussed below, having considered the parties' submissions both in opposition to and in support of the same, the Court hereby GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment.
On November 16, 2020, Plaintiff Nathan Rowan (“Rowan” or “Plaintiff”) filed a Complaint against former Independent presidential candidate Brock Pierce. (Docket No. 1). Subsequently Plaintiff filed an Amended Complaint on July 12, 2021. (Docket No. 35). Rowan claims Pierce violated the Telephone Consumer Protection Act (“TCPA” or “Act”), 47 U.S.C. § 227(b)(1)(A)(iii), by sending pre-recorded messages to promote Defendant's campaign to consumers' phone numbers, including Plaintiff's, without their consent. Id. ¶ 40.
Defendant filed a Motion for Summary Judgment on March 24, 2023. (Docket No. 153). Pierce asserted two main arguments: first, that Plaintiff lacks standing because he has not presented evidence of any injury-in-fact, and second, Defendant is not personally liable. Plaintiff filed a Response in Opposition, accompanied by his Opposing Statement of Material Facts (“OSMF”) and Additional Statement of Material Facts (“Add'l SMF”), and Defendant filed a Reply containing a Reply Statement of Undisputed Material Facts (“Reply SUMF”). (Docket Nos. 170, 170-1, and 173, respectively).
Summary judgment is proper under Fed.R.Civ.P. 56(a) if a movant shows “no genuine dispute as to any material fact” and that they are “entitled to judgment as a matter of law. ” “A dispute is ‘genuine' if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. ” Thompson v. Coca-Cola Co. , 522 F.3d 168, 175 (1st Cir. 2008) (citation and quotation marks omitted). A fact is considered material if it has '” Sands v. Ridefilm Corp. , 212 F.3d 657, 660-61 (1st Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986)).
The party moving for summary judgment “bears the initial burden of showing that no genuine issue of material fact exists. ” Feliciano-Munoz v. Rebarber-Ocasio, 970 F.3d 52, 62 (1st Cir. 2020) (citation omitted). “The nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists. ” Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006). However, it '” Feliciano-Munoz, 970 F.3d at 62 (quoting McCarthy v. Nw. Airlines, Inc. , 56 F.3d 313, 315 (1st Cir. 1995)). The nonmovant similarly cannot rely on “conclusory allegations, improbable inferences, and unsupported speculation” to defeat summary judgment. River Farm Realty Tr. v. Farm Family Cas. Ins. Co. , 943 F.3d 27, 41 (1st Cir. 2019) (citation and quotation marks omitted).
In this District, summary judgment is governed by Local Rule 56. See L. CV. R. 56. Per this Rule, an opposing party must “admit, deny or qualify the facts supporting the motion for summary judgment by reference to each numbered paragraph of the moving party's statement of material facts. ” L. CV. R. 56(c).
Furthermore, unless the fact is admitted, the opposing party must support each denial or qualification with a record citation. Id. In particular, citations must refer “to the specific page or paragraph or identified record material,” and “[t]he court may disregard any statement of fact” that is improperly supported. L. CV. R. 56(e). If a party opposing summary judgment fails to comply with the rigors that Local Rule 56 imposes, “a district court is free, in the exercise of its sound discretion, to accept the moving party's facts as stated. ” Caban Hernandez v. Philip Morris USA, Inc. , 486 F.3d 1, 7 (1st Cir. 2007). Thus, litigants ignore this rule at their peril. Id.
As an initial matter, the Court considers issues raised by Defendant in his Reply regarding admissibility of evidence. Defendant moves to exclude portions of Plaintiff's Response as inadmissible. (Docket No. 173 at 11-12). These portions include a WhatsApp chat, Plaintiff's discovery responses and declaration, and the expert declaration of Randall Snyder. Id.
Defendant seeks to exclude a WhatsApp chat purportedly containing conversations between Pierce and others on two bases: first, that its “veracity has never been tested” and second, that it contains inadmissible hearsay. (Docket No. 173 at 11). The Court construes the first objection as a challenge to the document's authenticity. In general, “[e]vidence that is inadmissible at trial . . . may not be considered on summary judgment. ” Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998). Accordingly, unauthenticated documents typically cannot be used to defeat a motion for summary judgment. Gomez-Gonzalez v. Rural Opportunities, Inc. , 626 F.3d 654, 666 (1st Cir. 2010); see also Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000) (citing to Fed.R.Civ.P. 56(e) for the proposition that “[d]ocuments supporting or opposing summary judgment must be properly authenticated. ”). However, following a 2010 amendment to Fed. R. Crim. P. 56, the essential inquiry is whether a party can show that it will be able to authenticate questioned evidence at trial. See Joseph v. Lincare, Inc. , 989 F.3d 147, 155-57, 155 n. 4 (1st Cir. 2021) ().
To authenticate evidence, “the proponent must produce evidence to support a finding that the item is what the proponent claims it is. ” Fed.R.Evid. 901(a). The proponent may rely on the testimony of a witness with knowledge to do so. Id. 901(b). Evidence may also be authenticated through extrinsic evidence. See United States v. Browne, 834 F.3d 403, 413-415 (3d Cir. 2016) (permitting authentication of group Facebook chats through circumstantial evidence).
The document in question here is the purported transcript of a WhatsApp group chat that included Pierce; John Souza (“Souza”), an associate of Pierce's; and Brian Anderson (“Anderson”), the owner and operator of a company called Media Mash, among others. See Docket No. 112 at 6-7. The WhatsApp chat was produced in response to a subpoena sent by Plaintiff to Media Mash. Id. Defendant questions the “veracity” of the WhatsApp chat because Plaintiff did not depose specific third parties in the chat. [1](Docket No. 173 at 11). However, Plaintiff did depose both Pierce and Anderson. (Docket Nos. 154-1 and 154-2, respectively). During his deposition, Anderson was shown the WhatsApp chat and acknowledged that it was the same chat that (1) he had participated in with Defendant and other individuals and (2) he had testified about earlier in the day. (Docket No. 154-3 at 66). Anderson also noted that he believed a particular cell phone number in the chat belonged to the Defendant. [2] Id. at 67-68. Finally, there is circumstantial evidence in the WhatsApp chat that supports its authenticity, such as references to Defendant's presidential campaign staff. See, e. g. , Docket No. 112-7 at 6 (). For these reasons, the Court finds that Rowan has sufficiently authenticated the WhatsApp chat in the record that it may be relied upon for summary judgment purposes.
Turning next to the issue of hearsay, “[i]t is black-letter law that hearsay evidence cannot be considered on summary judgment. ” Davila v. Corp. De P. R. Para La Difusion Publica, 498 F.3d 9, 17 (1st Cir. 2007); see Fed.R.Civ.P. 56(e) (). Hearsay is an out-of-court statement offered for the truth of the matter asserted. Bonner v. Triple-S Mgmt. Corp. , 68 F. 4th 677, 689 (1st Cir. 2023) (citing Fed.R.Evid. 801(c)). However, admissions made by a party-opponent are not hearsay. Id. Nor are statements offered for context, rather than for the truth of the matter asserted. United States v. Cruz-Diaz, 550 F.3d 169, 176 (1st Cir. 2008) (citing United States v. Bailey, 270 F.3d 83, 87 (1st Cir. 2001)).
Here Plaintiff relies on statements made by Pierce and others in the WhatsApp chat. See Docket No. 170 at 12-13. Given that Pierce is the named Defendant and Rowan's party-opponent, the portions of the WhatsApp chat associated with Pierce's phone number that Plaintiff used to support the OSMF and Add'l SMF are non- hearsay and are therefore admissible in the summary judgment context. However, Plaintiff also refers to statements made by individuals speaking about the campaign. See, e. g. , Docket No. 170-1 at 20 (). The individuals are unidentified “and, without that information, there is no reliable way to tell whether” their messages may fit within the category of statements that are not hearsay. Davila, 498 F.3d at 17 (referring to Fed.R.Evid. 801(d)(2)). Accordingly, the WhatsApp chat messages sent by persons other than Defendan...
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