Smith v. Securus Techs., Inc., Case No. 15–cv–550 (SRN/HB).

• Decision Date: 04 August 2015
• Docket Number: Case No. 15–cv–550 (SRN/HB).
• Citation: 120 F.Supp.3d 976
• Parties: Samantha SMITH and Daniel Boyd, on behalf of themselves and all others similarly situated, Plaintiffs, v. SECURUS TECHNOLOGIES, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

120 F.Supp.3d 976

Samantha SMITH and Daniel Boyd, on behalf of themselves and all others similarly situated, Plaintiffs,

v.SECURUS TECHNOLOGIES, INC., Defendant.

Case No. 15–cv–550 (SRN/HB).

United States District Court, D. Minnesota.

Signed Aug. 4, 2015.

Keith J. Keogh and Michael S. Hilicki, Keogh Law, LTD, Chicago, IL, Peter F. Barry and Patrick J. Helwig, Barry & Helwig, LLC, Minneapolis, MN, for Plaintiffs.

Monte A. Mills, Greene Espel PLLP, Minneapolis, MN, Stephanie A. Joyce, Arent Fox LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

I. INTRODUCTION

This matter is before the Court on Defendant's Motion for Summary Judgment [Doc. No. 18] and Plaintiffs' Motion For Relief Under Fed.R.Civ.P. 56(d) [Doc. No. 35]. For the reasons set forth below, the Court grants Defendant's motion, and denies Plaintiffs' motion.

II. BACKGROUND

A. The Parties and Phone Calls that Plaintiffs Received

Plaintiffs Samantha Smith and Daniel Boyd (collectively "Plaintiffs") bring this suit against Defendant Securus Technologies, Inc. ("Defendant" or "Securus") for allegedly contacting Plaintiffs on their cellular telephones without their prior express consent, in violation of the Telephone Consumer Protection Act (TCPA) and the Minnesota Automatic Dialing–Announcing Devices Law (ADAD). (See Am. Compl. ¶ 1 [Doc. No. 8].)

Plaintiffs are natural persons who are citizens of the State of Minnesota. (Id. ¶¶ 7–8.) Defendant is a Delaware corporation headquartered in Dallas, Texas. (Id. ¶ 9.) Securus is "a provider of inmate telephone services for over 2,200 correctional facilities, including many in the State of Minnesota." (Id. ¶ 10.) Inmates use Securus's service in order to make outgoing calls from the correctional facilities at which they are housed.

Plaintiffs allege that "between November 28, 2014, and December 1, 2014, Defendant called each of Plaintiffs' cellular telephones several times using an automated telephone dialing system." (Id. ¶ 32.) As part of some of these calls, Plaintiffs claim that Securus "delivered a message using an artificial or prerecorded voice." (Id. ¶ 33.) Each call allegedly informed Plaintiffs about the name of the inmate trying to contact them, the name of the correctional facility from which the call was being made, and instructions on how to accept or decline the call. (Id. ¶ 12.) Plaintiffs argue that they did not consent to receiving any of these non-emergency calls. (Id. ¶¶ 36, 43.) And, thus, Plaintiffs contend that the "robocalls" violated the TCPA and the ADAD.

B. Telephone Consumer Protection Act (TCPA) and Minnesota Automatic Dialing–Announcing Devices Law (ADAD)

Under the TCPA, it is unlawful for any person "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 ... 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). In order to "make" a call, the party must "cause [the call] to exist." See Black's Law Dictionary 967 (7th ed.1999) (defining "make" as causing something to exist); see id. (10th ed.2014) (same).

The TCPA further defines the term "automatic telephone dialing system" to mean "equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." Id. § 227(a)(1)(A), (B). The TCPA grants consumers, such as Plaintiffs, a private right of action, with provision for $500 or the actual monetary loss in damages for each violation, whichever is greater, and treble damages for each willful or knowing violation. Id. § 227(b)(3).

The Minnesota ADAD is "virtually identical" to the TCPA. See Van Bergen v. State of Minn., 59 F.3d 1541, 1548 (8th Cir.1995). According to the ADAD, "[a] caller shall not use or connect to a telephone line an automatic dialing-announcing device unless: (1) the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; or (2) the message is immediately preceded by a live operator who obtains the subscriber's consent before the message is delivered." Minn.Stat. § 325E.27(a). The ADAD defines "automatic dialing-announcing device" to mean "a device that selects and dials telephone numbers and that, working alone or in conjunction with other equipment, disseminates a prerecorded or synthesized voice message to the telephone number called." Id. § 325E.26, subd. 2 (emphasis added).

C. Plaintiffs' Claims

Plaintiffs allege that Defendant violated the TCPA and the ADAD by making these calls, and brings this action on behalf of (1) themselves; (2) a class of United States persons who similarly received unauthorized "robocalls" from Securus, within four years of the date the Complaint in this case was filed; and (3) a sub-class of Minnesota persons who also received these unauthorized "robocalls," within six years of the date the Complaint was filed. (See id. ¶¶ 47–61.)

Plaintiffs allege three counts against Securus. In Count I, Plaintiffs claim that Securus negligently violated the TCPA by placing non-emergency telephone calls to Plaintiffs, without their prior express consent, "using an automatic telephone dialing system, or device that has the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and/or using an artificial or prerecorded voice." (See id. ¶¶ 62–66.) In Count II, Plaintiffs allege that "despite being well aware of the TCPA's prohibitions," Securus placed these "robocalls" in willful violation of the TCPA. (See id. ¶¶ 67–71.) Finally, in Count III, Plaintiffs claim that Defendant violated the Minnesota ADAD by using "an automatic dialing-announcing device to transmit information to Plaintiffs," and by using "multiple prerecorded and/or synthesized voice messages to communicate with Plaintiffs, without Plaintiffs' consent or a statutory right." (See id. ¶¶ 72–76.)

D. Procedural Posture

On April 10, 2015, before any discovery was completed in this case, Defendant filed a Motion for Summary Judgment [Doc. No. 18], a supporting brief [Doc. No. 20], and several supporting affidavits and exhibits [Docs. No. 21, 22, 23]. On May 1, 2015, Plaintiffs filed a response brief [Doc. No. 30], with supporting affidavits and exhibits [Doc. No. 31, 32, 33]. A few days later, Plaintiffs also filed a Motion For Relief Under Fed.R.Civ.P. 56(d) [Doc. No. 35], with a supporting memorandum [Doc. No. 36], arguing that the Court should either deny Defendant's motion, or, in the alternative, grant a continuance and allow Plaintiffs an opportunity to conduct relevant discovery. On May 14, 2015, Defendant filed a response brief to Plaintiffs' motion [Doc. No. 45], and a reply brief in relation to its Motion for Summary Judgment [Doc. No. 42]. The Court heard oral argument on both motions on June 3, 2015. On July 13, 2015, Defendant notified the Court via letter that the Federal Communications Commission (FCC) released an order that was related to the issues pending in this case. (See Def.'s Letter [Doc. No. 48].) On July 28, 2015, Plaintiffs filed a letter in response. (See Pls.' Letter [Doc. No. 49].)

III. Defendant's Motion for Summary Judgment

A. Standard of Review

Summary judgment is proper if, drawing all reasonable inferences in favor of the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action.’ " Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).

The party moving for summary judgment bears the burden of showing that the material facts in the case are undisputed. Id. at 323, 106 S.Ct. 2548. However, "a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505. Moreover, summary judgment is properly entered "against a party who 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 Corp., 477 U.S. at 322, 106 S.Ct. 2548. Defendant moves for summary judgment on all three of Plaintiffs' claims.

B. Analysis

In order for Plaintiffs to establish their negligence and willful violation claims under the TCPA, they must prove that Securus "called" their cellular telephone numbers "using an automatic telephone dialing system" or "an artificial or prerecorded voice," without their "prior express consent." Steinhoff v. Star Tribune Media Co., LLC, No. 13–cv–1750 (SRN/JSM), 2014 WL 1207804, at *2 (D.Minn. Mar. 24, 2014) (citing Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir.2012) ). Similarly, in order for Plaintiffs to establish their ADAD claim, Plaintiffs must demonstrate that Securus used an "automatic dialing-announcing device" to call Plaintiffs, without their prior express consent. See ...