Dixon v. Monterey Financial Services, Inc.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND TO STRIKE; AFFORDING PLAINTIFF LEAVE TO AMEND RE: DKT. NO. 43

          MAXINE M. CHESNEY United States District Judge.

         Re: Dkt. No. 43 Before the Court is defendant Monterey Financial Services, Inc.'s "Motion for Summary Judgment [and] to Strike Plaintiff's Class Allegations, " filed May 13, 2016. Plaintiff Edith Dixon has filed opposition, to which defendant has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.^[1]

         BACKGROUND

         The following facts are undisputed.

         On November 14, 2014, plaintiff engaged the services of Aamco Transmissions & Total Car Care and was billed $2274.76. (See Lucas Decl. Ex. A at 2.) To pay for the services, she signed an agreement titled "FlexPay Plus ACH Debit Authorization" ("the Contract"), in which she agreed to pay $1264.96 as a down payment and authorized Kahuna Payment Solutions to debit the sum of $190.15 from her bank account each month, for a total of twelve months. (See id. Ex. A at 1.) When she executed the Contract, plaintiff provided a telephone number ending in "1147" (see id.), which is a cellular telephone number (see Little Decl., filed May 13, 2016, Ex. A at 3.) On November 18, 2014, the Contract was "assigned" to defendant "for servicing." (See Lucas Decl. Ex. B.) Defendant thereafter "placed certain telephone calls, both manual and autodialed, to the phone number [p]laintiff provided in the Contract" (see id. ¶ 7), including calls made on May 7, 2015, May 19, 2015, and May 22, 2015 (see id. Ex. C at 19-21).

         During the call made to plaintiff on May 7, 2015, plaintiff told defendant's representative, "I have, um, an attorney Todd Friedman, who helps me with, um, consumer mistreatment the way I'm being treated, " and "[w]hat I'm going to do is contact Todd Friedman and have him contact you guys." (See Friedman Decl. Ex. A.)^[2]

         During the call made to plaintiff on May 19, 2015, plaintiff told defendant's representative, "I asked you guys not to call me and you can contact my attorney." (See id. Ex. B.) When the representative then asked plaintiff why defendant needed to contact her attorney, plaintiff stated, "Because I'm turning this over to an attorney, " and "because you guys keep calling me." (See id.)

         During the call made to plaintiff on May 22, 2015, plaintiff told defendant's representative, "I am asking you to not call me anymore and contact Mr. Friedman." (See Little Decl., filed June 3, 2016, Ex. A.) Defendant did not thereafter call plaintiff. (See Lucas Decl. ¶ 8.)

         DISCUSSION

         In the operative complaint, the First Amended Complaint ("FAC"), plaintiff alleges defendant violated the Telephone Consumer Protection Act ("TCPA") when, after she "revoked her consent to be called by [d]efendant" (see FAC ¶ 8), "[d]efendant continued to call [p]laintiff on her cellular telephone" (see FAC ¶ 8), using an "automatic telephone dialing system" (see FAC ¶ 9). Based on said allegations, plaintiff alleges two causes of action, titled, respectively, "Negligent Violations of the [TCPA]" and "Knowing and/or Willful Violations of the [TCPA]." Plaintiff seeks to proceed on her own behalf and on behalf of a nationwide class. By the instant motion, defendant argues it is entitled to summary judgment on plaintiff's TCPA claims, or, in the alternative, that the class action allegations should be stricken.

         A. Motion for Summary Judgment

         1. Legal Standard

         Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a "court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(a).

         The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. Once the moving party has done so, the nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." See Celotex, 477 U.S. at 324 (internal quotation and citation omitted). "When the moving party has carried its burden under Rule 56[ ], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the [opposing party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations ...