United States District Court, S.D. Texas, Galveston Division
JOE SHIELDS Plaintiff.
GAWK INC.; SCOTT KETTLE; KENNEDY WEAVER Defendants.
MEMORANDUM AND RECOMMENDATION
M. EDISON UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff s 1st Amended Motion for
Summary Judgment as to Defendant Kennedy Weaver ("Motion
for Summary Judgment")- Dkt. 24. All dispositive motions
have been referred to the undersigned by United States
District Court Judge George C. Hanks, Jr. for report and
recommendation. Dkt. 21. After careful consideration of the
pleadings and the applicable law, the Court RECOMMENDS that
the Motion for Summary Judgment be GRANTED IN PART and DENIED
Joe Shields ("Shields") claims that Defendant
Kennedy Weaver ("Weaver") violated the Telephone
Consumer Protection Act ("TCPA"), 47 U.S.C. §
227 etseq., and Section 305.053 of the Texas
Business and Commerce Code when Weaver sent a non-emergency,
automated call to Shields's cell phone without his
contends that he was assigned a cellular telephone number by
his cellular service provider on July 16, 2014, and submitted
this number to the National Do-Not-Call list within 24 hours.
Shields says that this phone number was never submitted on
any website and only his family and friends were provided
with the phone number.
February 13, 2018, at 7:31 p.m., Shields's cell phone
rang twice, but he apparently did not pick up in time. The
cell phone indicated that he had missed a call and had a new
voicemail message waiting. Shields then accessed the
voicemail. It was a prerecorded message from Weaver offering
cash for houses in the Houston area. The voicemail instructed
"interested parties to call the telephone number
281-236-9343, which is the telephone number that was assigned
to the Defendant Weaver at the time the robocall was
made." Dkt. 24 at 3. Shields called this number and
spoke to Weaver who confirmed that "it was a recorded
message from me yes" and that "it is the way we do
marketing for our business." Id.
alleges that this recorded message made to his cellular
telephone number violates Section 227(b) of the TCPA because
it is the use of an artificial or prerecorded voice to
deliver a message without his prior express consent. See
Al U.S.C. § 227(b)(1)(B). Shields also contends
that the call violates Section 227(c) of the TCPA because it
is unlawful to make telephonic solicitations to a telephone
number listed on the Do-Not-Call registry. See Id.
at § 227(c)(5); 47 C.F.R. § 64.1200(c). Shields
further claims that Weaver has violated Section 305.053 of
the Texas Business and Commerce Code for the same
', reasons Section 227(b) and 227(c) have been
violated-by the making an artificial or . prerecorded call to
his cellular phone number, and by initiating a telemarketing
call to his cellular phone number when it was on the National
Do-Not-Call list. As a result of this single February 13,
2018 phone call, Shields "requests the Court find that
the Defendant Weaver is liable to [Shields] in the statutory
sum of $2,000.00 . . . [f]urther, due to Defendant
Weaver's willful and knowing behavior, [Shields] requests
that the Court treble the statutory amount to
$6,000.00." Dkt. 24 at 3-4. Shields further requests the
court grant an injunction against Weaver prohibiting him from
engaging in similar behavior in the future.
Federal Rule of Civil Procedure 56, a court must grant a
motion for summary judgment if "the movant shows that
there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). A dispute of fact is not
"material" unless its resolution would affect the
outcome of the case. See Hamilton v. Segue Software
Inc., 232 F.3d 473, 477 (5th Cir. 2000).
moving party bears the burden of informing the court of the
basis for its belief that there is an absence of a genuine
issue for trial and of identifying those portions of the
record that demonstrate such absence. See Celofex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). However, all
evidence and reasonable inferences made must be viewed in the
light most favorable to the party opposing the motion.
See United States v. Diebold, Inc., 369 U.S. 654,
the moving party has made an initial showing, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
See FED. R. Civ. P. 56(e); Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
585 (1986). The party defending against the motion for
summary judgment cannot defeat the motion unless he provides
specific facts that demonstrate a genuine issue of material
fact such that a reasonable jury might return a verdict in
his favor. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). Mere assertions of a factual dispute
unsupported by probative evidence will not prevent summary
judgment. See Id. at 249-50. In other words,
conclusory statements, speculation, and unsubstantiated
assertions will not suffice to defeat a motion for summary
judgment. See Douglass v. United Servs. Auto.
Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996).
and Weaver are both proceeding pro se in this case.
"Despite our general willingness to construe pro se
filings liberally, we still require pro se parties to
fundamentally abide by the rules that govern the federal
courts." EEOC v. Simbaki, Ltd., 767 F.3d 475,
484 (5th Cir. 2014) (internal quotation marks and citation
omitted). When it comes to summary judgment proceedings, this
means that a pro se party moving for summary judgment is
required to properly present summary judgment evidence and
specifically refer to this evidence in order to place it
before the court. See Id. ("Pro se litigants
must properly . . . present summary judgment evidence")
(internal citations omitted). Likewise, "the notice
afforded by the Rules of Civil Procedure and the local rules
is considered sufficient to advise a pro se party of his
burden in opposing a summary judgment motion." Howe
v. Adams, No. 3:14-CV-349, 2018 WL 1427175, at *3 (S.D.
Tex. Mar. 22, 2018) (internal quotation marks and citation
case, the Court has bent over backwards to accommodate the
pro se litigants. The Court has explained to the parties on
several occasions that they need to abide by the Federal
Rules of Civil Procedure-even if they are not represented by
counsel. The Court even held a telephonic hearing last month
at which it gave Weaver extra time to respond to the Motion
for Summary Judgment. Despite the Court's guidance,
Weaver failed to file a response to the Motion for Summary
Weaver's failure to respond to the Motion for Summary
Judgment, summary judgment may not be awarded by default
"simply because there is no opposition, even if the
failure to oppose violated a local rule." Hibernia
Nat'l Bank v. Admin. Cent. Sociedad Anonima, 776
F.2d 1277, 1279 (5th Cir. 1985). "However, a court may
grant an unopposed summary judgment motion if the undisputed
facts show that the movant is entitled to judgment as a