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Nieto v. Allied Interstate, Inc.

United States District Court, D. Maryland

October 3, 2014

FELIX NIETO
v.
ALLIED INTERSTATE, INC

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

Plaintiff Felix Nieto, proceeding pro se, filed this action alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, by defendant Allied Interstate, Inc. ("Allied"), a debt collection agency. Allied has filed a motion for summary judgment. Both parties have filed motions to strike each other's affidavits. For the reasons stated below, the motions to strike will be denied and Allied's motion for summary judgment will be granted.

BACKGROUND

This action arises out of a series of thirty telephone calls Allied made to Nieto's number, xxx-xxx-2049 ("2049 number"), between July 5, 2013, and November 19, 2013.

Allied is a debt collection agency. As part of its debt collection process, Allied uses commercial databases to look up the telephone numbers associated with its debtors' accounts. (Def.'s Mot. Summ. J. Ex. E, Commercial Database Results, ECF No. 16-7.) While seeking to collect from one of its debtors, Allied used a LexisNexis database, which mistakenly showed that the debtor's account was associated with Nieto's 2049 number and that that number was assigned to a landline. (Def.'s Mot. Summ. J. Ex. C, Akins Aff. ¶ 5, 8-9, ECF No. 16-5.) Believing that the debtor could be reached at the 2049 number, Allied, seeking repayment, began placing calls to that number on July 5, 2013. Between that date and November 19, 2013-the period during which the calls at issue in this litigation were placed-Allied made thirty such calls. Nieto received those calls to the 2049 number on his cell phone. (Def.'s Mot. Summ. J. Ex. A, Nieto Dep. 42, ECF No. 16-3.) At all relevant times, his 2049 number was assigned to a Voice over Internet Protocol ("VoIP") telephone service, ( id. at 56), which never charged Nieto on a per-call basis, (Def.'s Mot. Summ. J. Ex. B, Allied Req. for Admis. No. 3, ECF No. 16-4).

Upset that he was receiving unwanted calls, and believing these calls violated the TCPA, Nieto filed this case on November 20, 2013. After unsuccessful mediation efforts, Allied moved for summary judgment on May 13, 2014. After Nieto filed his opposition and Allied filed its reply, Nieto filed an affidavit in support of his opposition. That affidavit, and the two affidavits in support of Allied's motion, became the subject of three motions to strike by the parties.

ANALYSIS

Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "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) (emphasis added). Whether a fact is material depends upon the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Id. "A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must view the evidence in the light most favorable to the nonmovant and draw all justifiable inferences in his favor. Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted); see also Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 721 F.3d 264, 283 (4th Cir. 2013) (citation omitted). At the same time, the court must not yield its obligation "to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (citation and internal quotation marks omitted).

ANALYSIS

I. Motions to Strike

Three motions to strike are pending. Nieto has filed two motions to strike the affidavits upon which Allied relies in its motion for summary judgment. (Mot. to Strike Aff. of Charles Akin, Jr., ECF No. 23; Mot. to Strike Aff. of Richard Temple, ECF No. 24.) Allied has filed a motion to strike Nieto's affidavit. (Mot. to Strike Aff. of Felix Nieto, ECF No. 25.)

Nieto's two motions to strike will be denied. Without citing any authority, Nieto claims Allied's affidavits are invalid both because they were not notarized and because the affiants, two Senior Vice Presidents, do not identify their technical telecommunications expertise. Neither argument is valid. Affidavits need not be notarized so long as they are made under penalty of perjury. See 28 U.S.C. § 1746; United States v. Arlington Cnty., Va., 702 F.2d 485, 490 (4th Cir. 1983) ("The letter declared that it was true under penalty of perjury, which conferred upon it the status of an affidavit." (citing id. )). And the Allied affiants show their competence to testify via personal knowledge. The affiants do not claim knowledge of the precise inner workings of the equipment used by Allied; rather, they claim knowledge of the overall processes and equipment at issue. Such testimony does not require in-depth technical expertise. Moreover, "ordinarily, officers... have personal knowledge of the acts of their corporations." Catawba Indian Tribe of S.C. v. State of S.C., 978 F.2d 1334, 1342 (4th Cir. 1992).

Allied's motion to strike will be denied. While it would have been preferable for Nieto to file his affidavit at the same time as his opposition to Allied's motion for summary judgment, in light of his pro ...


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