Summary
In Alco Vending, the plaintiff alleged that the defendant was directly liable for junk faxes sent in violation of the TCPA. At the summary judgment stage, the parties were in agreement that two others who were neither directly named nor indirectly mentioned in the complaint had actually sent the faxes.
Summary of this case from Aranda v. Caribbean Cruise Line, Inc.Opinion
CASE NO. 1:11 CV 01060
04-22-2015
THE SIDING AND INSULATION CO., Plaintiff, v. ALCO VENDING, INC., Defendant.
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff The Siding and Insulation Co. ("the Company") filed this putative class action lawsuit alleging that the defendant Alco Vending, Inc. ("Alco") sent unsolicited faxes in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). The parties filed cross-motions for summary judgment, which were referred to United States Magistrate Judge Nancy A. Vecchiarelli for a Report and Recommendation. The Magistrate Judge's Report and Recommendation, which is now before the Court, advises that the defendant's motion for summary judgment be granted and that the plaintiff's motion for summary judgment be denied as moot. (Doc. 56).
In reaching her conclusion, the Magistrate Judge reasoned as follows. First, the Magistrate Judge found that the faxes at issue here, which advertised the defendant Alco's services, were actually sent by a third-party, Business to Business Solutions ("B2B"). After reviewing an FCC ruling on the issue and the relevant case law, the Magistrate Judge determined that Alco could not be held liable as a "sender" of unsolicited faxes under the TCPA simply because the faxes advertised Alco's services. Instead, the Magistrate Judge concluded, the plaintiff was required to prove that Alco was vicariously liable for B2B's having sent the unsolicited faxes under common law agency principles.
The Magistrate Judge went on to determine that the plaintiff's complaint failed to state a plausible claim of vicarious liability under theories of actual agency, apparent authority, and ratification. Then, assuming in arguendo that the complaint had stated a plausible agency claim, the Magistrate Judge determined that there was insufficient evidence on the record by which a jury could reasonably find for the plaintiff under any of those agency theories. The Magistrate Judge accordingly recommended that summary judgment be granted in favor of the defendant Alco.
The plaintiff has filed objections to the Magistrate Judge's recommended decision. This Court has considered de novo those portions of the Report and Recommendation to which the plaintiff objects, pursuant to Local Rule 72.3(b) and 28 U.S.C. § 636(b)(1). Finding the plaintiff's objections to be without merit and the Report and Recommendation to be without error, the Court accepts the Magistrate Judge's recommendations. The Report and Recommendation is accordingly adopted in its entirety, and the defendants' motion for summary judgment is granted. The plaintiff's motion for summary judgment is denied as moot.
IT IS SO ORDERED.
/s/_________
UNITED STATES DISTRICT JUDGE
Date: April 22, 2015