United States District Court, E.D. Missouri, Eastern Division
MAX MARGULIS, individually and on behalf of all others similarly situated, Plaintiff,
SURREY VACATION RESORTS, INC., d/b/a GRAND CROWNE RESORTS, Defendant.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
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.
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.
evidence,  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
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.
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.
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.
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
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 ...