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Shelton v. FCS Capital LLC

United States District Court, E.D. Pennsylvania

December 11, 2019

FCS CAPITAL LLC, et al., Defendants


          JOSHUA D. WOLSON, J.

         Plaintiff James Everett Shelton can fairly be called a serial plaintiff. Indeed, a docket search reveals at least 18 cases in the Eastern District of Pennsylvania in which Shelton appeared as the plaintiff. News reports document Shelton's litigation efforts.[1] This particular case is one of several that Shelton has filed for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Shelton also asserts claims in this case under the Pennsylvania Telemarketer Registration Act (“PTRA”), 73 P.S. § 2241 et seq. He seeks summary judgment on all of his claims.

         While Shelton has made litigation his avocation, Defendants FCS Capital LLC, Emil Yashayev, and Barry Shargel (collectively “FCS”) have taken the opposite approach to this case: they have largely stuck their heads in the sand. FCS initially had a default entered against it. After having that vacated, FCS filed a motion to dismiss, which was denied. That seems to have ended FCS's participation in the case, however. It did not respond to the discovery that Shelton served. Then, it elected not to respond to Shelton's Motion for summary judgment.

         FCS's abdication of its obligations in this case has consequences. It means that Shelton has established the facts necessary to prevail on his claims under the TCPA. However, because there is no private right of action under the PTRA, Shelton cannot prevail on his claims under Pennsylvania law, regardless of FCS's failure to participate in the case.

         I. FACTS

         FCS made 18 commercial solicitation phone calls to Shelton's cellphone between May 4, 2018, and October 23, 2018. Shelton uses his cellphone for personal rather than business purposes. Shelton does not have an account or an established business relationship with FCS, and FCS did not have permission to contact Shelton for commercial purposes.

         Shelton's cellphone number is listed on the national Do Not Call Registry. FCS does not honor do-not-call requests, nor does it maintain an internal do-not-call list. When FCS made the calls to Shelton's cellphone, it used an automatic telephone dialing system (“ATDS”). It neither made note of nor honored Shelton's various do-not-call requests. FCS failed to provide Shelton with a copy of its internal TCPA and do-not-call compliance policies when Shelton asked for them. FCS was aware of the facts that constituted various violations of the TCPA when it made the calls to Shelton's cellphone. It made all 18 calls willfully and knowingly.

         As a result, Shelton filed the instant lawsuit against Defendants on August 30, 2018, seeking redress for various violations of the TCPA and the PTRA. During the course of discovery, Shelton propounded Requests for Admission (“RFA”) on FCS. FCS, however, never responded to Shelton's RFAs. Similarly, FCS did not respond to Shelton's present Motion, which was filed on October 8, 2019. The motion is before the Court for disposition.


         Federal Rule of Civil Procedure 56(a) permits a party to seek, and a court to enter, summary judgment “if the movant shows that 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). “[T]he plain language of Rule 56[(a)] mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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. v. Catrett, 477 U.S. 317, 322 (1986) (quotations omitted). In ruling on a summary judgment motion, a court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.'” Scott v. Harris, 550 U.S. 372, 378 (2007) (quotation omitted). However, “[t]he non-moving party may not merely deny the allegations in the moving party's pleadings; instead he must show where in the record there exists a genuine dispute over a material fact.” Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (citation omitted). The movant is entitled to judgment as a matter of law when the non-moving party fails to make such a showing. Dodson v. Coatesville Hosp. Corp., No. 18-3065, --- Fed. App'x ----, 2019 WL 2338461, at *2 n.6 (3d Cir. June 3, 2019) (quotation omitted).

         “If a party fails to . . . properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion; [and] grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it[.]” Fed.R.Civ.P. 56(e)(2)-(3). Thus, a moving party is not entitled to summary judgment as a matter of right just because the adverse party does not respond. Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990) (quotation omitted). Instead, the court must conduct a full analysis to determine “whether the moving party has shown itself to be entitled to judgment as a matter of law.” Id.

         III. ANALYSIS

         A. TCPA Claims

         Shelton asserts claims for violations of 47 U.S.C. § 227(b) and § 227(c). Section 227(b) prohibits the use of an ATDS to make calls to a cellphone, with certain exceptions. Section 227(c) prohibits solicitation calls to residential telephone subscribers who have registered their phone numbers on the national Do-Not-Call registry. Shelton has established ...

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