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Baldwin v. Monterey Financial Services, Inc.

United States District Court, M.D. Pennsylvania

October 19, 2017

RICHARD BALDWIN, ET AL. et al., Plaintiffs
v.
MONTEREY FINANCIAL SERVICES, INC., Defendant

          MEMORANDUM

          William J. Nealon United States District Judge

         On November 24, 2014, Plaintiffs, Richard and Laura Baldwin, filed a complaint in the Court of Common Pleas of Schuylkill County. (Doc. 1). Plaintiffs allege that they received a number of communications from Defendant, Monterey Financial Services, Inc., regarding the collection of a debt. (Doc. 1-1). Plaintiffs also claim that two (2) of their friends were contacted by Defendant regarding that debt. (Id.). As a result of these alleged communications, Plaintiffs claim that Defendant violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq ("TCPA"); the Pennsylvania Fair Credit Extension Uniformity Act, 73 P.S. § 2270.1, et seq ("FCEUA"); and invaded Plaintiffs' privacy by intrusion upon seclusion. (Id. at pp. 10-13). On December 10, 2014, Defendant removed the matter to this Court. (Doc. 1).

         On September 15, 2015, Defendant filed a motion for summary judgment, supporting brief, statement of material facts, and an affidavit in support. (Docs. 14, 15, 16). On October 26, 2015, Plaintiffs filed a brief in opposition and statement of material facts. (Docs. 20, 21). On November 11, 2015, Defendant filed a reply brief and statement of material facts. (Docs. 23, 24). On December 9, 2015, Plaintiffs filed a motion for leave to file a surreply and supporting brief, (Docs. 28, 29), which was opposed by Defendant. (Doc. 31). Plaintiffs' motion to file a surreply was granted, and Plaintiffs* surreply was filed. (Docs. 35, 36). Defendant then filed a reply to the surreply. (Doc. 37).

         On September 30, 2016, the Court issued a Memorandum and Order which granted in part and denied in part Defendant's motion for summary judgment. (Docs. 38, 39). In particular, Defendant's motion for summary judgment was granted as to Plaintiffs' FCEUA claim under 73 P.S. § 2270.4(b)(1)(ii) concerning Defendant's communication with Donna Moyer, as well as Plaintiffs' FCEUA claims under section 2270.4(b)(5)(h), (b)(5)(x), and (b)(6)(i). (Id.). Defendant's motion was denied as to Plaintiffs' claims under the TCPA; FCEUA claim under section 2270.4(b)(1)(ii) concerning Defendant's communication with Shawn Yorke; FCEUA claims under sections 2270.4(b)(2)(H), (b)(4), (b)(4)(v), and (b)(6); and state law tort claim of invasion of privacy by intrusion upon seclusion. (Id.).[1] As to those remaining FCEUA claims, the Court notified the parties that it was considering summary judgment in favor of Defendant due to the apparent lack of sufficient evidence in the summary judgment record establishing that Plaintiffs' remaining FCEUA claims can satisfy Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. §§ 201-1 to 201-9.3 ("UTPCPL"). (Docs. 38, 39). Plaintiffs were directed to file their response to this notice on or before October 31, 2016. (Id.). To date, Plaintiffs have not filed any documents in response to the Court's September 30, 2016, Memorandum and Order. Thus, whether Defendant is entitled to summary judgment as to Plaintiffs' remaining FCEUA claims is question ripe for disposition. For the reasons stated below, summary judgment will be entered in favor of Defendant as to the remaining FCEUA claims.

         I. STANDARD OF REVIEW

         Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). "A dispute is 'genuine' only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a fact is 'material' only if it might affect the outcome of the action under the governing law." Shank v. Experian Info. Solutions. Inc., 2016 U.S. Dist. LEXIS 2679, at *1 (M.D. Pa. Jan. 11, 2016) (Jones, J.) (citing Sovereign Bank v. BJ's Wholesale Club. Inc., 533 F.3d 162, 172 (3d Cir. 2008)).

         The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986). Once this showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat* 1 Wildlife Fed'n. 497 U.S. 871, 888 (1990). "[T]he non-movant must go beyond the pleadings, pointing to particular facts that evidence a genuine dispute for trial." Shank. 2016 U.S. Dist. LEXIS 2679, at *2 (citing Guidotti v. Legal Helpers Debt Resolution. L.L.C., 716 F.3d 762, 773 (3d Cir. 2013)). In particular, for a non-moving party to prevail on a motion for summary judgment, they "'must show specific facts such that a reasonable jury could find in that party's favor, thereby establishing a genuine issue of fact for trial."' McGlynn v. Reliance Standard Life Ins. Co., 2015 U.S. Dist. LEXIS 168589, at *9-10 (M.D. Pa. 2015) (Caputo, J.) (quoting Galli v. N.J. Meadowlands Comm'n, 490 F.3d 265, 270 (3d Cir. 2007)). "'While the evidence that the non-moving party presents may be either direct or circumstantial, and need not be as great as a preponderance, the evidence must be more than a scintilla.'" Galli, 490 F.3d at 270 (quoting Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)).

         All inferences "should be drawn in the light most favorable to the nonmoving party, and where the nonmoving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Pastore v. Bell Tel. Co., 24 F.3d 508, 512 (3d Cir. 1994) f quoting Big Apple BMW. Inc. v. BMW of North Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert denied. 507 U.S. 912 (1993)). Moreover, when evaluating a motion for summary judgment, a court "should not evaluate credibility or weigh the evidence." Shank. 2016 U.S. Dist. LEXIS 2679, at *2 (citing Guidotti. 716 F.3d at 772).

         Pursuant to Federal Rule of Civil Procedure 56(f)(3), "[a]fter giving notice and a reasonable time to respond, the court may ... consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute." FED. R. CIV. P. 56(f)(3); see Celotex Corp., 477 U.S. at 326 ("[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte. so long as the losing party was on notice that she had to come forward with all of her evidence."). As stated, the Court provided notice on September 30, 2016, that the Undersigned was considering entering summary judgment in Defendant's favor as to the remaining FCEUA claims pursuant to Federal Rule of Civil Procedure 56(f)(3) and gave Plaintiffs until October 31, 2016, to file a response to the Court's notice. (Doc. 39). Therefore, the Court has authority under Federal Rule of Civil Procedure 56(f)(3) to independently consider summary judgment at this stage concerning the remaining FCEUA claims. See FED. R. Civ. P. 56(f)(3).

         II. STATEMENT OF FACTS

         On August 20, 2013, Plaintiffs entered into an agreement with Prestigious Software Ltd. ("Prestigious"). (Doc. 15, p. 3); (Doc. 21, p. 2). In executing the agreement with Prestigious, Plaintiffs provided a home telephone number and a cellular telephone number. (Id.). The agreement states that it could be canceled "without penalty or obligation" within three (3) days of its execution. (Doc. 15, p. 4); (Doc. 21, p. 3). The agreement reads, in relevant part, that:

YOU MAY CANCEL THIS AGREEMENT WITHOUT PENALTY OR OBLIGATION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD (3rd) BUSINESS DAY FROM YOUR EXECUTION OF THIS AGREEMENT, TO CANCEL THIS AGREEMENT, YOU MUST NOTIFY LICENSOR IN WRITING OF YOUR INTENT TO CANCEL. YOUR NOTICE OF CANCELLATION SHALL BE EFFECTIVE UPON THE DATE SENT AND SHALL BE SENT TO: PRESTIGIOUS SOFTWARE LTD, 3790 Paradise Road, Suite 210, Las Vegas, NV 89169.

(Id.). On August 25, 2013, Plaintiffs sent email correspondence to Prestigious in an attempt to cancel the agreement. (Doc. 15, pp. 4-5); (Doc. 21, pp. 3-4); (Doc. 24, p. 1). On August 26, 2013, Plaintiffs mailed a letter to Prestigious in an attempt to cancel the agreement. (Doc. 15, p. 5); (Doc. 21, p. 4).

         As part of the agreement, Plaintiffs completed a credit application, wherein they each provided a cellular telephone and the names of three (3) references. (Doc. 15, pp. 3-4); (Doc. 21, pp. 2-3). Specifically, Plaintiffs provided the phone numbers of Donna Moyer and Shawn Yorke on the credit application. ...


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