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Shields v. Gawk Inc.

United States District Court, S.D. Texas, Galveston Division

April 24, 2019

JOE SHIELDS Plaintiff.
v.
GAWK INC.; SCOTT KETTLE; KENNEDY WEAVER Defendants.

          MEMORANDUM AND RECOMMENDATION

          ANDREW M. EDISON UNITED STATES MAGISTRATE JUDGE

         Pending 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 IN PART.

         FACTUAL BACKGROUND

         Plaintiff 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 consent.

         Shields 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.

         On 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.

         Shields 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.

         SUMMARY JUDGMENT STANDARD

         Under 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).

         The 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, 655 (1962).

         Once 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).

         PRO SE LITIGANTS

         Shields 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 omitted).

         In this 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 Judgment.

         Notwithstanding 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 ...


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