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Margulis v. Surrey Vacation Resorts, Inc.

United States District Court, E.D. Missouri, Eastern Division

August 4, 2016

MAX MARGULIS, individually and on behalf of all others similarly situated, Plaintiff,
v.
SURREY VACATION RESORTS, INC., d/b/a GRAND CROWNE RESORTS, Defendant.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant’s Motion for Summary Judgment. (Doc. No. 64.) The matter is fully briefed and ready for disposition. For the reasons stated herein, the motion will be denied.

         BACKGROUND

         This case is filed pursuant to the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227) (the “TCPA”). Plaintiff alleges that Defendant Surrey Vacation Resorts, Inc., used an automatic dialer to make a telemarketing call to Plaintiff, without Plaintiff’s prior consent. Plaintiff recorded the call in question. He seeks statutory damages pursuant to the TCPA. In the alternative, he claims a violation of the TCPA rooted in negligence. He also asserts counts for injunctive and declaratory relief.

         The evidence, [1] construed in Plaintiff’s favor, shows the following. Plaintiff complains that on June 18, 2013, Defendant, through its agents, called Plaintiff’s cellular telephone number, 314-303-7470, based in St. Louis County, Missouri (the “Surrey call”). During the Surrey call, an agent for Defendant informed Plaintiff about vacation options in Branson, Missouri, and ultimately attempted to sell Plaintiff a travel package. Plaintiff expressed some interest in the information being offered and repeatedly extended the Surrey call by asking questions about the offered packages. Thus, the Surrey call lasted a total of some fourteen minutes. Toward the end of the Surrey call, Plaintiff made attempts to find out the name of the company that had placed the call, and suggested to the agent that he was on a “do-not-call” list. Plaintiff was finally transferred to a supervisor and demanded that he not be contacted again. Plaintiff recorded the call in its entirety.

         Plaintiff alleges the call was made using an automated telephone dialing system (“ATDS”), a fact that Plaintiff purportedly deduced from the “significant delay after Plaintiff answered the call before Defendant’s agent joined the conversation.” (Doc. No. 1 at 1.) In his deposition, Plaintiff testified that his twenty years of experience with TCPA litigation allowed him to conclude, based on practice in the industry, that the significant delay at the beginning of the call was indicative of the use of an ATDS. It is undisputed that Surrey’s telemarketing dialing system, the Liberation 6000, is capable of predictive dialing. Bradley Dep., Jan. 25, 2016, 57:16-25, 58:1-2.

         In a signed affidavit, David Cope, general counsel for Surrey, testified that Surrey obtained the phone number on which Plaintiff was called from another company, who acquired Plaintiff’s number from an “in-bound survey”-that is, one wherein the consumer called to participate in the survey, rather than being called to participate in the survey. (Doc. No. 65-2.) The subscribing telephone number was identified in Surrey’s files as belonging to a “George Larson.” Those files, a part of the record before the Court, also indicate that in or around August of 2012, a consumer by that name provided consent, via participation in a consumer survey, to be contacted at the phone number 314-303-7470 regarding the sale and promotion of travel goods and services.

         During the duration of the litigation, Surrey proffered that at some point, the phone number must have been transferred from George Larson to Plaintiff. At his deposition on November 11, 2015, however, Plaintiff admitted that he routinely uses the fake name “George Larson” when engaging in telemarketing surveys and calls.

         Although Plaintiff testified that he “had never given permission” to be contacted (Margulis Dep., November 11, 2015, 19:4), he admitted to filling out certain surveys by phone. Plaintiff admitted that he did not believe Surrey was the initial entity that contacted him; instead, he testified that he believed Surrey acquired his information from some unknown third party. Plaintiff’s deposition testimony was as follows:

Q [W]ho provided the lead in this case?
A I forget the name of the company. There was a company that provided this name and phone number to Surrey. And I believe from the discovery that I’ve looked over they were not the ones that took the survey, someone else provided that to them.

         Margulis Dep., 31:11-16. Plaintiff further testified:

Q How do you think that company associated the name George Larson with your phone number?
A From the survey call that was made to that ...

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