noting that conflicting witness testimony on consent presents “exactly the kind of factual dispute that cannot properly be resolved on summary judgment”
How later courts described this case
- noting that conflicting witness testimony on consent presents “exactly the kind of factual dispute that cannot properly be resolved on summary judgment”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
YAJAIRIS VARGAS,
Plaintiff,
v. Case No: 8:19-cv-1109-T-60AAS
VEHICLE SOLUTIONS CORP.,
Defendant.
_______________________________________
ORDER DENYING “PLAINTIFF’S DISPOSITIVE
MOTION FOR SUMMARY JUDGMENT”
This matter is before the Court on “Plaintiff’s Dispositive Motion for Summary
Judgment and Memorandum of Law in Support,” filed on July 8, 2020. (Doc. 38).
Defendant Vehicle Solutions Corporation filed a response on August 21, 2020. (Doc.
45). Plaintiff filed a reply on September 28, 2020. (Doc. 49). After reviewing the
motion, response, reply, court file, and record, the Court finds as follows:
Background
The son of Plaintiff Yajairis Vargas incurred a debt to Defendant to purchase a
car. Because her son worked for Plaintiff’s company, Plaintiff made payments on the
car loan by taking money out of her son’s paycheck. According to Plaintiff, the loan
fell into arrears due to confusion over the timing of payments and Defendant contacted
her son to attempt to obtain payment. Plaintiff intervened to try to resolve the matter,
calling Defendant on her cell phone, which had a number ending in -6032. Plaintiff
alleges that Defendant began calling Plaintiff on the -6032 number, using both auto-
dialing and recorded messages without her consent. She now moves for summary
judgment.
Legal Standard
Summary judgment is appropriate “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). A properly supported motion for summary
judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of material
fact will preclude summary judgment. Id.
The moving party bears the initial burden of showing that there are no genuine
issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th
Cir. 2004). When the moving party has discharged its burden, the nonmoving party
must then designate specific facts showing the existence of genuine issues of material
fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995). If there
is a conflict between the parties’ allegations and evidence, the nonmoving party’s
evidence is presumed to be true and all reasonable inferences must be drawn in the
nonmoving party’s favor. Shotz v. City of Plantation, Florida, 344 F.3d 1161, 1164
(11th Cir. 2003).
Analysis
The Telephone Consumer Protection Act (“TCPA”) prohibits auto-dialed or
prerecorded calls to cell phones without the “prior express consent of the called party.”
47 U.S.C. § 227(b)(1)(A)(iii). The TCPA further provides that “[a] person or entity”
may assert an action based on a violation of the foregoing provision, for monetary or
injunctive relief, or both. 47 U.S.C. § 227(b)(3).
Plaintiff alleges that she never gave her consent to receive auto-dialed or
prerecorded calls from Defendant, and if she did give consent, she subsequently
revoked it, repeatedly speaking with Defendant’s representatives and directing them
to cease calling. Plaintiff has moved for summary judgment, arguing that there is no
genuine issue of fact as to the elements of the alleged TCPA violation or as to
Defendant’s willfulness.
In opposition to Plaintiff’s motion, Defendant has submitted the deposition
testimony of its collections manager, Christina Perez, and a declaration from Nuria
Santamaria, a “skip tracer” also employed by Defendant. Defendant argues that this
evidence raises a genuine issue of material fact regarding consent.
In her deposition, Perez testified that as Defendant’s collections manager, she
typically sits in a room not far from employees such as Santamaria, who contact
customers by phone. She testified that on December 17, 2018, she overheard
Santamaria speaking to Plaintiff over the phone, and that she herself spoke with
Plaintiff on occasions after that. While Perez did not specifically recall hearing
Santamaria ask for Plaintiff’s consent on that call, Perez testified that one of
Santamaria’s assigned tasks was to obtain consent to received auto-dialed and
prerecorded calls. She further testified that when a party requests not to be called, as
Plaintiff claims she did, Perez is informed and speaks with the party. Perez testified
that did not happen on December 17, 2018, and Defendant’s business records contain
no reference to such a request by Plaintiff on that call. Perez testified that only
several months later did Plaintiff request not to be called, at which point Perez put
Plaintiff on “do not call” status, which was later lifted at Plaintiff’s request.
Santamaria’s affidavit corroborates Perez’s testimony concerning the December
17, 2018 call. Her affidavit states that on that call Plaintiff gave consent for
Defendant to contact her at the -6032 number using automatic and prerecorded
systems. Plaintiff argues that Santamaria’s affidavit is conclusory and should be
disregarded. The affidavit, however, while not detailed, is not impermissibly
conclusory. It provides Santamaria’s position with Defendant, the date of the call, the
participants in the call, and the content of the call relevant to the issues on Plaintiff’s
summary judgment motion. The Court is not required to disregard the affidavit
because it does not recount other details of the conversation or because its statement
regarding Plaintiff’s consent is framed in somewhat “legal” language.
Plaintiff argues that if she in fact ever gave consent, she revoked it in
subsequent calls, including the December 17, 2018, call. However, given the stark
contrast between Plaintiff’s and Defendant’s versions of that call, a reasonable jury
could question Plaintiff’s credibility and disbelieve her testimony as to other calls as
well.
Courts in TCPA cases have repeatedly held that conflicting evidence and
credibility issues, such as those presented here, must be determined by the jury and
preclude summary judgment. See, e.g., Osorio v. State Farm Bank, F.S.B., 746 F.3d
1242, 1256 (11th Cir. 2014) (noting that conflicting witness testimony on consent
presents “exactly the kind of factual dispute that cannot properly be resolved on
summary judgment”); Brown v. Ocwen Loan Servicing LLC, 8:18-cv-136-T-60AEP,
2019 WL 4221718, at *7 (M.D. Fla. Sept. 5, 2019) (‘Whether James revoked
his consent is a question for the jury that cannot be resolved on summary judgment.”);
Cinquini v. Synchrony Bank, 16-cv-3409-T-36TGW, 2018 WL 7284359, at *9 (M.D. Fla.
June 11, 2018) (‘Where evidence conflicts over consent, summary judgment is
unavailable.”).
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
“Plaintiffs Dispositive Motion for Summary Judgment and Memorandum of
Law in Support” (Doc. 38) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this 2nd day
November, 2020.
me
-TOMBARBER i (ssst—‘—s—sS
UNITED STATES DISTRICT JUDGE
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