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E & G Inc. v. Mount Vernon Mills Inc.

United States District Court, D. South Carolina, Greenville Division

June 12, 2018

E & G, Inc., individually and as the representative of a class of similarly-situated persons, Plaintiff,
Mount Vernon Mills, Inc. and John Does 1-5, Defendants.



         Before this Court is Defendant Mount Vernon Mills, Inc. (“Mount Vernon”)'s Motion for Summary Judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 50.) The Court held a hearing on this Motion on May 29, 2018, and has considered the arguments of the parties, as well as the briefing submitted and the entire record in this case. For the reasons set forth herein, Mount Vernon's Motion for Summary Judgment is DENIED.


         Plaintiff E & G, Inc. (“Plaintiff”) filed this action on February 2, 2017, as a class action lawsuit against Defendants Mount Vernon and John Does 1-5 alleging Defendants violated the federal Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227 (“TCPA”). Plaintiff contends Defendants have sent facsimile transmissions of unsolicited advertisements to Plaintiff and the class in violation of the TCPA, including the facsimile transmission which is the subject of the instant litigation (“subject fax”), sent on or about December 1, 2015. (ECF No. 1 at 2.) Plaintiff filed an initial Motion for Class Certification and Request for Status Conference on February 7, 2017. (ECF No. 6.) That motion was denied on March 28, 2017, without prejudice and with leave to re-file. (ECF No. 22.) The parties proceeded with bifurcated discovery in this action with Phase I discovery limited to the issues of: (1) whether Plaintiff was a Wyndham franchisee at the relevant time and consented to received fax advertisements from Wyndham; (2) whether Plaintiff had an existing business relationship with Wyndham Worldwide Corporation and its subsidiaries or affiliates; (3) and any other facts relevant to the issue as to whether the faxes are considered “solicited” or “unsolicited” under the applicable law and regulations. (ECF No. 42 at 1-2.) The instant Motion was filed on December 15, 2017 at the conclusion of the Phase I discovery and replies and responses have been filed.


         A court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The judge is not to weigh the evidence, but rather to determine if there is a genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If no material factual disputes remain, then summary judgment should be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence should be viewed in the light most favorable to the non-moving party. See Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Thus, at the summary judgment phase, “[t]he pertinent inquiry is whether there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., No. 17-1503, 2018 WL 1916320, at *3 (4th Cir. Apr. 24, 2018)(internal citation and quotation marks omitted).


         At issue in this case is what Seventh Circuit Judge Frank Easterbrook has termed “another of the surprisingly many junk-fax suits under 47 U.S.C. § 227, the Telephone Consumer Protection Act, which together with the FCC's implementing regulations establishes some simple rules that many fax senders ignore.” Chapman v. First Index, Inc., 796 F.3d 783, 784 (7th Cir. 2015). The Telephone Consumer Protection Act (“TCPA”) prohibits the use of “any telephone facsimile machine, computer, or other devise to send, to a telephone facsimile machine, an unsolicited advertisement” unless:

(i) the unsolicited advertisement is from a sender with an established business relationship with the recipient;
(ii) the sender obtained the number of the telephone facsimile machine through-
(I) the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or
(II) a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution, except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before July 9, 2005, if the sender possessed the facsimile machine number of the recipient before July 9, 2005; and
(iii) the unsolicited advertisement contains a notice meeting the requirements under paragraph (2)(D)…

47 U.S.C. § 227(b)(1)(C). The TCPA defines the term “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5); Carlton & Harris Chiropractic, Inc. v. PDRNetwork, LLC, 883 F.3d 459, 463 (4th Cir. 2018). In sum, liability may exist under the TCPA if the ...

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