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Jay Clogg Realty Group, Inc. v. Metropolitan Life Insurance Co.

United States District Court, D. Maryland

March 8, 2016



DEBORAH K. CHASANOW United States District Judge

Presently pending and ready for resolution in this case brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), is a motion for summary judgment filed by Defendants Metropolitan Life Insurance Company and MetLife Group, Inc. (collectively, “MetLife” or “Defendants”). (ECF No. 35). Also pending is a motion for leave to file a surreply filed by Plaintiffs. (ECF No. 49). The relevant issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendants’ motion for summary judgment will be granted in part and denied in part. Plaintiffs’ motion for leave to file a surreply will be denied.

I. Background

A. Factual Background

Unless otherwise noted, the facts here are undisputed and construed in the light most favorable to Plaintiffs. Additional facts will be discussed in the analysis section. Plaintiffs are twenty-three individuals and corporations who received unsolicited faxes advertising life insurance policies. Plaintiffs contend that they opted out of a class action lawsuit in Illinois state court known as Shaun Fauley, et al. v. Metropolitan Life Insurance Company, et al. (the “class action”). (See ECF No. 2, at 2-3). The factual underpinning of the class action and of this suit is that Scott Storick, who worked for MetLife at the time, paid Robert Martino to send multitudes of faxes advertising life insurance rates. (See ECF Nos. 35-1, at 2; 42, at 2-4). Mr. Martino would send responses he received to Mr. Storick, who would then follow-up and attempt to sell a life insurance policy.[1] Mr. Martino provided fax advertising services to several clients (ECF No. 43-4, at 20), and Mr. Storick testified in his deposition for the class action that other MetLife employees sent similar unsolicited fax advertisements, including at least one other who used Mr. Martino’s services (ECF No. 43-3, at 57-59). In a deposition taken as part of the class action, Mr. Martino testified that he coded each fax based on which client’s behalf he was sending the fax. (ECF No. 35-12, at 3-4). In Mr. Storick’s case, the code “SS” or “1958” would be printed on the fax or in the fax’s header. (Id.). In his deposition, Mr. Storick suggested that he received some faxes without the codes. (ECF No. 43-3, at 30-32).

B. Procedural History

On December 2, 2014, Plaintiffs filed their complaint in the Circuit Court for Montgomery County. (ECF No. 2). After being served on January 26, 2015, Defendants timely removed the action to this court. (ECF No. 1). Plaintiffs’ complaint alleges that Defendants violated the TCPA (Count I) and the Maryland equivalent (Count II), and includes a list of Plaintiffs’ fax numbers that received unsolicited faxes. (ECF No. 2, at 12). On March 4, 2015, the court entered a scheduling order stating that discovery would conclude on July 17. (ECF No. 16). On June 25, Plaintiffs filed a motion to extend discovery. (ECF No. 22). On July 10, Defendants filed a motion for a protective order. (ECF No. 24). The parties participated in an unsuccessful settlement conference, and the undersigned conducted two telephonic conferences with the parties regarding the discovery motions on August 31 and September 16. The court temporarily granted Defendants’ protective order request and deferred ruling on Plaintiffs’ request for additional discovery. On August 17, Defendants filed the pending motion for summary judgment. (ECF No. 35). Plaintiffs responded and requested the court defer ruling on summary judgment under Federal Rule of Civil Procedure 56(d) due to a need for additional discovery (ECF No. 42), and Plaintiffs replied (ECF No. 48). Plaintiffs then filed a motion for leave to file a surreply. (ECF No. 50).

II. Motion for Summary Judgment

A. Standard of Review

Summary judgment is appropriate under Federal Rule of Civil Procedure Rule 56(a) when there is no genuine dispute as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court of the United States explained that, in considering a motion for summary judgment, the “judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. Thus, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.” Id. at 252.

In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The mere existence of a “scintilla” of evidence in support of the nonmoving party’s case is not sufficient to preclude an order granting summary judgment. See Liberty Lobby, 477 U.S. at 252.

A “party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences.” Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted). Indeed, this court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4thCir. 1987)).

B. Analysis

The TCPA makes it unlawful “for any person within the United States . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). The Maryland analog statute provides that “[a] person may not violate” the TCPA. Md. Code, Com. Law § 14-3201. Both statutes provide for a private right of action. 47 U.S.C. § 227(b)(3); Md. Code, Com. Law § 14-3202(b). Defendants’ argument at this stage is quite simple: they contend that Plaintiffs have put forth no evidence showing that they received faxes from Defendants, ...

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