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Olney v. Job.Com, Inc.

United States District Court, E.D. California

May 1, 2014

PETER OLNEY, Plaintiff,
v.
JOB.COM, INC., et al., Defendants.

MEMORANDUM DECISION AND ORDER RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 110).

LAWRENCE J. O'NEILL, District Judge.

Now pending before the Court is Defendant Job.com's ("Job.com's" or "Defendant's") motion for summary judgment. Plaintiff Peter Olney ("Plaintiff") has opposed the motion, and Defendant has filed a reply. The Court has reviewed the parties' submissions, and for all the reasons discussed below DENIES Defendant's motion for summary judgment.

I. BACKGROUND

A. Factual Background

This case concerns alleged violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq. Specifically, Plaintiff claims that Defendant made improper automated telephone calls to his cell phone. The facts are as follows.[1]

1. Plaintiff Registers With Resume-Now

On August 12, 2012, Plaintiff registered his resume with a website called "Resume-Now" as part of his efforts to seek new employment. Resume-Now is owned and operated by LiveCareer, Inc. ("LiveCareer"). Registration with Resume-Now generally consists of three steps. First, the registrant is prompted to create or upload a new resume. Second, the registrant is asked for information regarding the job he or she seeks. Third, the registrant is asked to enter and confirm his or her email address. According to Defendant, at this point the registrant also (1) is given an opportunity to review Resume-Now's terms of use and privacy policy; (2) is asked to acknowledge that he or she has read and agrees to the terms of use and privacy policy; and (3) is allowed to uncheck a box that reads: "[R]eceive... free information on managing my career."

On August 13, 2012, Plaintiff used the Resume-Now's resume posting service, a service that is offered only to subscribing members. To initiate the resume posting service, Plaintiff clicked a button labeled: "Post Resume. Instantly post your resume to 90 job boards." Plaintiff was then directed to the resume posting splash page, where Plaintiff was given the option to choose from various categories of job search websites that he wished his resume to be posted. Plaintiff chose to post his resume on "General Sites." Upon choosing "General Sites, " Plaintiff was directed to a pop-up page displaying a list of additional job sites where his resume would be sent. "Job.com" was one of the websites listed in the pop-up page.

As part of this process, Plaintiff was required to provide additional contact information. The website read: "Enter your mailing address and current phone [number] so that recruiters and potential employers can contact you." Plaintiff entered his cell phone number on this page. Plaintiff was then given another chance to review Resume-Now's terms of use and privacy policy. Plaintiff reviewed the policy and completed the resume posting process by clicking "Post."

2. Plaintiff Registers With Job.com

On August 17, 2012, Plaintiff registered an account with Job.com via Resume-Now's website. The registration process consisted of populating fields on five pages, one of which was the "Profile" page. On the Profile page, Plaintiff's cell phone number was entered in the "Home Phone" field. Defendant asserts that Plaintiff also left a box unchecked that read: "[B]y keeping the box above checked, I'd like to be contacted by phone to discuss educational opportunities to help prepare me for my dream career." Although the box was checked by default, a registrant may uncheck the box if they wish to opt out of the service. The parties refer to this box as "the opt-out box." Plaintiff claims that he never visited Job.com, never saw the opt-out box, and therefore could not have checked it nor left it unchecked.

3. Windy City Calls Plaintiff Regarding Educational Programs

Defendant forwarded Plaintiff's profile, including his phone number, to a third party, Windy City Call Center, LLC ("Windy City"). Windy City operates the Windy City Call Center, which is used to provide "education leads" to higher learning institutions. Defendant, through Windy City, placed multiple calls a day to Plaintiff on August 17, 2012 through September 4, 2012, for the purpose of selling Defendants' or a third party's services.

B. Relevant Procedural History

Plaintiff initiated this action on October 19, 2012 on behalf of himself and all other similarly situated individuals.[2] According to Plaintiff's second amended complaint (the "SAC") - presently the operative complaint - Plaintiff seeks statutory damages and injunctive relief against Job.com for negligent and willful violations of the TCPA. SAC ¶ 1.

On March 4, 2014, Defendant filed the now pending motion for summary judgment. Plaintiff filed an opposition to the motion on March 25, 2014, and Defendant filed a reply on April 1, 2014. In addition, Plaintiff filed an objection to Defendant's reply on April 3, 2014, to which Defendant filed a response on April 4, 2014.

Defendant asserts it is entitled to summary judgment on Plaintiff's TCPA claim for three reasons. First, Defendant argues that Plaintiff provided prior express consent to receive calls from Defendant. Second, Defendant argues that LiveCareer was Plaintiff's agent and provided Defendant express consent to call Plaintiff. Third, Defendant argues ...


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