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Mejia v. Warner Cable Inc.

United States District Court, S.D. New York

August 1, 2017

RAQUEL S. MEJIA, LEONA HUNTER, and ANNE MARIE VILLA, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
TIME WARNER CABLE INC., Defendant. ALLAN JOHNSON, Plaintiff,
v.
TIME WARNER CABLE INC., Defendant. Call Number Date Source

          OPINION AND ORDER.

          J. PAUL OETKEN United States District Judge

         Raquel Mejia filed the initial complaint in this action (No. 15 Civ. 6445) (the “Mejia action”) alleging a violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, against Defendant Time Warner Cable Inc. (“Time Warner”) on August 14, 2015. (Dkt. No. 1.) An amended complaint was filed on March 28, 2016, removing Mejia and adding as Plaintiffs Leona Hunter and Anne Marie Villa. (Dkt. No. 45 (“Compl.”).)

         There are several motions currently before the Court: a motion to intervene and a motion to stay filed by Plaintiffs-Intervenors John Fontes, Daymon Byrd, and Gregory Montegna (Dkt. No. 63); Plaintiffs' motion for partial summary judgment (Dkt. No. 75); Time Warner's motion for judgment on the pleadings (Dkt. No. 82); and Time Warner's motion for summary judgment (Dkt. No. 105).

         This Opinion and Order also addresses a fifth motion, a motion for judgment on the pleadings filed by Time Warner in Johnson v. Time Warner Cable Inc., No. 15 Civ. 6518 (S.D.N.Y.) (Dkt. No. 52) (the “Johnson action”). This motion raises substantially the same issues raised in Time Warner's other motion for judgment on the pleadings.

         For the reasons that follow, all of these motions are denied, except for Time Warner's motion for summary judgment, which is granted in part and denied in part.

         I. Background

         A. The TCPA

         The Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, was passed by Congress in response to “[v]oluminous consumer complaints about abuses of telephone technology.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 370-71 (2012). The TCPA bans various privacy-invading practices and directs the Federal Communications Commission (“FCC”) to prescribe regulations. Id. Relevant here, the TCPA prohibits individuals from “mak[ing] any call (other than a call 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 . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA defines “automatic telephone dialing system” (“ATDS”) as “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). The TCPA allows consumers who receive such calls to recover the greater of their actual monetary loss or $500 per violation, and allows for treble damages where a violation is willful or knowing. Id. § 227(b)(3).

         B. Factual Background

         Time Warner is a national cable network provider. (Compl. ¶ 1.) Plaintiffs in the Mejia action allege that Time Warner conducted “wide scale telemarketing campaigns and repeatedly made unsolicited calls to consumers' telephones without consent” in violation of the TCPA. (Id. ¶ 2.) In particular, Plaintiffs allege that Time Warner made one or more unauthorized calls to their cell phones using an ATDS or pre-recorded voice. The individual calls are detailed below. (Id.) Plaintiffs also claim that Time Warner failed to maintain adequate do-not-call policies under the TCPA's implementing regulations. (Id. ¶ 19.)

         Plaintiffs bring this action pursuant to Federal Rule of Civil Procedure 23 on behalf of themselves and four classes of consumers who received calls from Time Warner. (Id. ¶ 62.) They seek damages, statutory penalties, and injunctive relief for recovery of economic injury on behalf of the putative classes. (Id. ¶ 64.)

         Plaintiffs Hunter and Villa bring their claims on the basis of several dozen phone calls made to them by Time Warner. The following facts, describing these calls, are based on undisputed facts in the parties' Rule 56.1 statements of material facts, unless otherwise noted. (See Dkt. No. 138.)

         1. Calls to Plaintiff Villa

         Plaintiff Villa's claim involves a phone number ending in 5900, which was assigned to her on November 23, 2015, and for which she had an unlimited phone plan. (Id. ¶¶ 1, 3, 22.) A Time Warner customer, “A.S.”, established an account listing the 5900 number as the primary contact number. (Id.) A.S.'s account subsequently became delinquent. (Id. ¶ 5.)

         As a result of A.S.'s delinquency, Time Warner placed calls to Villa's number in order to collect payments from A.S. (Id. ¶¶ 6, 8.) A total of seven calls were made to Villa's number. The first six calls to Villa's number were made two each on November 27, December 2, and December 8 of 2015. (Id. ¶ 7.) These calls were made using an “interactive voice response” (“IVR”) calling system. (Id.) The seventh call to Villa's number was placed by Time Warner's vendor, Meridian, on December 9, 2015. (Id. ¶ 15.)

         The following table shows the calls made by Time Warner to Villa's number:

Call Number

Date

Source

1

11/27/2015

IVR

2

11/27/2015

IVR

3

12/02/2015

IVR

4

12/02/2015

IVR

5

12/08/2015

IVR

6

12/08/2015

IVR

7

12/09/2015

IVR

         Time Warner has not called Villa's number since December 9, 2015. (Id. ¶¶ 19, 20.) Time Warner claims that it disconnected A.S.'s account on December 24, 2015, and removed Villa's number from its billing system. (Id. ¶¶ 28-29.)

         2. Calls to Plaintiff Hunter

         Plaintiff Hunter's claim involves a phone number ending in 1089, which was assigned to her on May 18, 2015, and for which she had an unlimited phone plan. (Id. ¶¶ 33, 64.) Before Hunter was assigned this number, it belonged to a Time Warner customer, “A.F.” (Id. ¶ 31.) A.F.'s account subsequently became delinquent multiple times from around May 2015 to February 2016. (Id. ¶ 35.)

         Due to several issues relating to A.F.'s service, Time Warner placed calls to Hunter's number. (Id. ¶ 36.) A total of forty-four calls were made to Hunter's number. (Id. ¶ 37.) The first twenty calls were made between May 28, 2015, and August 18, 2015, using an IVR calling system. (Id. ¶¶ 36, 38-48.) On June 15, 2015, Hunter blocked the phone number used by Time Warner's IVR platform using the “Metro Block-It” application, and Time Warner claims that calls fourteen to twenty were blocked by the application. (Id. ¶¶ 49-50.) The twenty-first call was placed by Time Warner's vendor, eClerx, on August 22, 2015, and was not blocked. (Id. ¶ 51-52.) The twenty-second through thirty-eighth calls were made between August 23, 2015, and February 1, 2016, using an IVR calling system. (Id. ¶¶ 36, 54.) Time Warner claims that calls twenty-four through thirty-eight were also blocked. (Id. ¶ 54.) On January 31, 2016, A.F. called Time Warner and confirmed that the 1089 number (Hunter's number) was associated with his account. (Id. ¶ 55.) In early February of 2016, A.F. moved out of his old home and established Time Warner service at his new home. (Id. ¶ 56.) On February 5, 2016, A.F. again informed Time Warner that the 1089 number was associated with his account. (Id. ¶ 58.) The thirty-ninth through forty-fourth calls were made between February 6, 2016, and February 10, 2016. (Id. ¶¶ 36, 57.) The thirty-ninth through forty-second calls were placed by Time Warner's external vendors, InfoCision and NobelBiz. (Id. ¶¶ 36, 59.) The forty-third and forty-fourth calls were made using Time Warner's IVR system. (Id. ¶ 36.)

         The following table shows the calls made by Time Warner to Hunter's number:

Call Number
Date
Source
1
5/28/2015
IVR
2
5/28/2015
IVR
3
5/28/2015
IVR
4
6/4/2015
IVR
5
6/4/2015
IVR
6
6/4/2015
IVR
7
6/10/2015
IVR
8
6/10/2015
IVR
9
6/10/2015
IVR
10
6/13/2015
IVR
11
6/15/2015
IVR
12
6/15/2015
IVR
13
6/15/2015
IVR
14
6/18/2015
IVR
15
7/28/2015
IVR
16
8/1/2015
IVR
17
8/4/2015
IVR
18
8/7/2015
IVR
19
8/13/2015
IVR
20
8/18/2015
IVR
21
8/22/2015
eClerx
22
8/23/2015
IVR
23
8/24/2015
IVR
24
8/24/2015
IVR
25
8/28/2015
IVR
26
10/28/2015
IVR
27
11/7/2015
IVR
28
11/13/2015
IVR
29
11/28/2015
IVR
30
12/2/2015
IVR
31
12/8/2015
IVR
32
12/14/2015
IVR
33
12/28/2015
IVR
34
1/7/2016
IVR
35
1/13/2016
IVR
36
1/28/2016
IVR
37
1/28/2016
IVR
38
2/1/2016
IVR
39
2/6/2016
InfoCision
40
2/8/2016
InfoCision
41
2/9/2016
InfoCision
42
2/9/2016
NobelBiz
43
2/9/2016
IVR
44
2/10/2016
IVR

         On February 9, 2016, Hunter told Time Warner that it had called the wrong number and asked Time Warner to stop calling. (Id. ¶ 61.) Since February 10, 2016, Time Warner has placed no further calls to Hunter's number, and Time Warner claims that on March 21, 2016, it removed Hunter's number from its billing system. (Id. ¶ 71.)

         C. Procedural Background

         Given the procedural and substantive complexity of this action and several related actions, a bit of background-some of which was already covered in the Court's previous opinion (Dkt. No. 110)-is essential.

         Raquel Mejia filed the initial complaint in the Mejia action on August 14, 2015. An amended complaint was filed on March 28, 2016, removing Mejia and adding Plaintiffs Leona Hunter and Anne Marie Villa. (Dkt. No. 1; Dkt. No. 45.) In an Opinion and Order dated December 15, 2016, this Court appointed interim class counsel in the Mejia action and denied Plaintiffs' request for class-wide discovery pending the disposition of the potentially case-dispositive motions. (Dkt. No. 110.)

         The Mejia action is not the only relevant TCPA action against Time Warner currently pending in this Court. This Court is also presiding over a related case, the Johnson action, brought by Plaintiff Allan Johnson against Time Warner alleging violations of the TCPA, stemming from calls made to Johnson's phone by Time Warner using an IVR calling system. Johnson v. Time Warner Cable Inc., No. 15 Civ. 6518 (S.D.N.Y. Aug. 18, 2015) (Dkt. No. 1).

         There is yet another TCPA class action pending against Time Warner in the Central District of California, Fontes v. Time Warner Cable Inc., 14 Civ. 02060 (C.D. Cal.) (the “Fontes action”). The Fontes action is currently stayed, and the plaintiffs in the Fontes action seek to intervene here and stay the actions currently pending in this Court. (Dkt. No. 63.) The Fontes Plaintiffs also attempted to centralize these actions-along with four additional TCPA actions also pending in the Central District of California (Dkt. No. 26 at 3)-under 28 U.S.C. § 1407, but their motion was denied by the United States Panel on Multidistrict Litigation on October 3, 2016. (Dkt. No. 60; Dkt. No. 61.)

         Two appellate actions are also relevant to the current case. First, King v. Time Warner Cable Inc., No. 15-2474 (2d Cir.), is currently pending in the Court of Appeals for the Second Circuit, which held oral argument on January 25, 2017. In King, Time Warner is challenging a district court decision holding, inter alia, that Time Warner's IVR system is an ATDS under the TCPA. King v. Time Warner Cable, 113 F.Supp.3d 718, 725 (S.D.N.Y. 2015). This holding forms the basis for Plaintiffs' motion for summary judgment in this action. As of the date of this Opinion and Order, the Second Circuit has not issued a decision in King.

         Second, ACA International v. FCC, No. 15-1211 (D.C. Cir.), is currently pending in the Court of Appeals for the District of Columbia Circuit, which held oral argument on October 19, 2016. (Dkt. No. 72 at 11.) In ACA International, the court is reviewing a final order of the FCC regarding its interpretation of ATDS under the TCPA. (Dkt. No. 37.) The D.C. Circuit has not issued a decision in ACA International as of the date of this Opinion and Order.

         This Opinion addresses the five pending motions in three groups. First, the Court addresses the motions for summary judgment filed by Plaintiffs and by Time Warner in the Mejia action. Second, the Court addresses the motions for judgment on the pleadings filed by Time Warner in the Mejia action and the Johnson action. And third, the Court addresses the motion to intervene and stay by the Fontes plaintiffs.

         II. Motions for Summary Judgment

         There are two motions for summary judgment pending in the Mejia action. First, Plaintiffs, relying on the district court decision in King, move for partial summary judgment on the issue of whether Time Warner's IVR phone system is an ATDS. (Dkt. No. 76 at 1-2.) Second, Time Warner moves for summary judgment on Plaintiffs' individual claims, arguing that they have various defects meriting summary judgment. (Dkt. No. 113 at 1-2.) The Court addresses these motions in turn.

         A. Legal Standard

         Summary judgment is appropriate where “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). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if, considering the record as a whole, a rational jury could find in favor of the non-moving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         “On summary judgment, the party bearing the burden of proof at trial must provide evidence on each element of its claim or defense.” Cohen Lans LLP v. Naseman, No. 14 Civ. 4045, 2017 WL 477775, at *3 (S.D.N.Y. Feb. 3, 2017) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). “If the party with the burden of proof makes the requisite initial showing, the burden shifts to the opposing party to identify specific facts demonstrating a genuine issue for trial, i.e., that reasonable jurors could differ about the evidence.” Clopay Plastic Prods. Co. v. Excelsior Packaging Grp., Inc., No. 12 Civ. 5262, 2014 WL 4652548, at *3 (S.D.N.Y. Sept. 18, 2014). The court views all evidence “in the light most favorable to the non-moving party” and summary judgment may be granted only if “no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Lunds, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).

         Though a party may move for summary judgment before the completion of full discovery, summary judgment “should be denied ‘where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.'” Delphi-Delco Elecs. Sys. v. M/V NEDLLOYD EUROPA, 324 F.Supp.2d 403, 417 (S.D.N.Y. 2004) (quoting Anderson, 477 U.S. at 250). Where a nonmoving party shows that it cannot present facts essential to its opposition, the court may defer or deny the motion. See Fed R. Civ. P. 56(d).

         B. Plaintiffs' Motion for Summary Judgment

         Plaintiffs move for partial summary judgment, arguing that the ruling by the district court in King collaterally estops Time Warner from litigating whether the IVR calling system used to make several of the calls to Plaintiffs is an ATDS under the TCPA. (Dkt. No. 76 at 1.) Time Warner argues that Plaintiffs have failed to show that the IVR system used to call them is identical to the one at issue in King, preventing the application of collateral estoppel (also known as issue preclusion). (Dkt. No. 87 at 1.) Time Warner also argues that the Court should exercise its discretion and decline to find preclusive effect here because its application would be unfair and would not promote judicial economy. (Id.)

         In King, Judge Hellerstein granted partial summary judgment to the plaintiff on the basis that Time Warner's IVR system qualified as an ATDS. King, 113 F.Supp.3d at 725. In making this determination, Judge Hellerstein focused on Time Warner's failure to “identif[y] any human involvement at all in any stage of the customer selection, list compilation, or dialing processes.” Id. Accordingly, he concluded that the ATDS generation of customer lists was “fully automated from start to finish.” Id. Judge Hellerstein also cited the FCC's ruling that an ATDS is “any technology with the capacity to dial random or sequential numbers.” Id. (quoting Press Release, Federal Communications Commission, FCC Strengthens Consumer Protections against Unwanted Calls and Texts (June 18, 2015), https://www.fcc.gov/document/fcc-strengthens-consumer-protections-against-unwanted-calls-and-texts). He concluded that “[p]laintiff has alleged, and Defendant has not credibly refuted, that the IVR has the requisite capacity. Whether it actually dialed King's number randomly or from a list is irrelevant. The IVR was an ATDS under § 227(a)(1).” Id. Time Warner has challenged this portion of Judge Hellerstein's ruling and the issue is currently on appeal in the Second Circuit. King v. Time Warner Cable Inc., No. 15-2474. Argument was held on January 25, 2017; the Second Circuit has not released a decision as of the date of this Opinion and Order.

         Collateral estoppel precludes relitigation of issues actually litigated and decided in a prior action, so long as the determination of those issues was essential to the judgment in the prior action. Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir. 1995). “Four elements must be met for collateral estoppel to apply: (1) the issues of both proceedings must be identical, (2) the relevant issues were actually litigated and decided in the prior proceeding, (3) there must have been ‘full and fair opportunity' for the litigation of the issues in the prior proceeding, and (4) the issues were necessary to support a valid and final judgment on the merits.” Id. (quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986)). However, “[t]he Supreme Court has afforded district courts ‘broad discretion' in determining whether to deny collateral estoppel, ” and “‘the general rule should be that in cases where . . . the application of offensive estoppel ...


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