United States District Court, E.D. Pennsylvania
D. WOLSON, J.
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. 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.
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.
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.
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.
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.
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.
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).
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
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