United States District Court, M.D. Pennsylvania
RICHARD BALDWIN, ET AL. et al., Plaintiffs
MONTEREY FINANCIAL SERVICES, INC., Defendant
William J. Nealon United States District Judge
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).
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).
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.). 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
STANDARD OF REVIEW
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)).
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)).
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).
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).
STATEMENT OF FACTS
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).
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. ...