JAMES D. WHITTEMORE United States District Judge

ORDER

BEFORE THE COURT is Plaintiff's Motion for Summary Judgment and Supporting Memorandum of Law (Dkt. 43) and Concise Statement of Undisputed Facts in Support of Plaintiff's Motion for Summary Judgment (Dkt. 44), Defendants' Motion for Summary Judgment (Dkt. 45) and Statement of Material Facts in Support of Their Motion for Summary Judgment (Dkt. 46), and the respective responses in opposition (Dkts. 54, 55, 57). Upon consideration, Defendants' Motion is GRANTED in part and DENIED in part and Plaintiff's Motion is DENIED.

I. BACKGROUND

Plaintiff brings this action alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ("TCPA") arising out of telephone calls made by Defendant CFI Resorts Management, Inc. ("CFIRM") to Plaintiff's cell phone using an automatic telephone dialing system ("ATDS"), allegedly without prior express consent. The phone calls were made in an attempt to collect past due maintenance and tax payments on Plaintiff's timeshare account (Dkt. 46-3, ¶ 34-36). In addition to CFIRM, Plaintiff sues four other defendants.

On October 21, 2004, Plaintiff purchased a timeshare interest at Defendant Westgate Vacation Villas, LLC ("Westgate Villas") from the previous owners on ebay (Dkt. 46-3, ¶ 13). With the ownership of this interest came an obligation to pay maintenance and taxes to Defendant Westgate Homeowner's Association, Inc. ("Westgate HOA") (Dkt. 46-1, ¶ 24). Westgate HOA contracted with CFIRM for the management of the property and collection of unpaid maintenance and taxes (Id.). CFIRM is owned 100% by Defendant Central Florida Investments, Inc. ("CFI") (Id., ¶ 9). CFIRM is the only named Defendant that makes telephone calls to timeshare owners (Id., ¶ 10). CFIRM's policies and procedures regarding phone calls require representatives to document all phone calls to owners, to keep detailed notes of all communications contemporaneously with the making of phone calls, or immediately thereafter, and to report comments on every aspect of the communication, including when the owner requests not to be called (Id., ¶¶ 15-17). CFIRM maintained a log of all communication and calls with Plaintiff (Id., ¶ 18).

On December 2, 2004, a male individual contacted CFIRM via phone, inquiring about changing the owner's name for the timeshare account (Id., ¶ 28, Ex. A). On December 6, 2004, CFIRM received a facsimile from Plaintiff enclosing a copy of the recorded Quit Claim Deed (Id., ¶ 29, Ex. A). On December 10, 2004, a male individual called CFIRM to ask about the status of the name change (Id., ¶ 30, Ex. A). On December 22, 2004, the individual again called CFIRM to obtain account information (Id., ¶ 31). What happened during this call is disputed. Defendants contend that during the December 22, 2004 call, Plaintiff provided his business and cellular phone numbers (Id.). Defendants also contend he confirmed his cell phone number on February 7, 2011 (Id., ¶ 37). Plaintiff claims he never provided his cell phone number to Defendants (Dkt. 43-1, ¶ 13). CFIRM's call log from December 22, 2004 identifies Plaintiff's home and cell phone numbers (Dkt. 46-1, Ex. A). And the call log from February 7, 2011 also identifies Plaintiff's cell phone number (Dkt. 46-1, Ex. B). CFIRM asserts, and Plaintiff does not dispute, that it made no independent attempts to obtain Plaintiff's contact information (Dkt. 46-3, ¶ 31). There are no other records or documentation of these calls.

II. STANDARD

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine factual dispute exists only if a reasonable fact-finder 'could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.'" Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine disputes of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party fails to demonstrate the absence of a genuine dispute, the motion should be denied. Kernel Records, 694 F.3d at 1300 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991)). The nonmoving party must "go beyond the pleadings," and designate specific facts showing that there is a genuine dispute. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324). A mere scintilla of evidence in the form of conclusory allegations, legal conclusions, or evidence that is merely colorable or not significantly probative of a disputed fact cannot satisfy a party's burden. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991); Kernel Records, 694 F.3d at 1301.

The evidence presented must be viewed in the light most favorable to the nonmoving party. Ross v. Jefferson Cnty. Dep't of Health, 701 F.3d 655, 658 (11th Cir. 2012). If there is a conflict between the parties' allegations or evidence, the nonmoving party's evidence is presumed to be true. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003). "Although all justifiable inferences are to be drawn in favor of the nonmoving party," Baldwin Cnty. v. Purcell, 971 F.2d 1558, 1563-64 (11th Cir. 1992), "inferences based upon speculation are not reasonable." Marshall v. City of Cape Coral, 797 F.2d 1555, 1559 (11th Cir. 1986); Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013). If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine dispute over a material fact, the court should not grant summary judgment. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1998). However, if the nonmovant's response consists of nothing more than a repetition of conclusory allegations, summary judgment is not only proper, but required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).

The standard for cross motions for summary judgment is the same. See United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) ("Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed."); Perez-Santiago v. Volusia Cnty., No. 6:08-cv-1868-Orl-28KRS, 2010 WL 917872, at *2 (M.D. Fla. Mar. 11, 2010) (quoting Latin Am. Music Co. v. Archdiocese of San Juan of the Roman Catholic & Apostolic Church, 499 F.3d 32, 38 (1st Cir. 2007)) (internal quotation marks omitted). "Cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another." Id. at *2 (citations and internal quotation marks omitted). When considering cross-motions for summary judgment, the Court must "consider and rule upon each party's motion separately and determine whether summary judgment is appropriate as to each under the Rule 56 standard." Monumental Paving & Excavating, Inc. v. Pa. Mfrs.' Ass'n Ins. Co., 176 F.3d 794, 797 (4th Cir. 1999) (citations omitted).

III. DISCUSSION

Defendants move for summary judgment on the following grounds: Plaintiff does not have standing because he is not the subscriber of the cell phone service; assuming Plaintiff does have standing, he consented to receive autodialed calls from CFIRM and never revoked his consent; and Defendants CFI, Westgate, Westgate Villas, and Westgate HOA cannot be held liable for the calls made by CFIRM. Plaintiff cross moves for summary judgment contending that he never provided consent to call his cell phone, repeatedly told CFIRM to stop calling, and that the non-calling Defendants are vicariously liable for the calls made by CFIRM.

The TCPA prohibits the use of an automatic telephone dialing system to call a telephone number assigned to a cellular telephone service, without the prior express consent of the "called party." 47 U.S.C. § 227(b)(1)(A)(iii). The burden is on the creditor to demonstrate it obtained prior express consent because it is in the best position to have records showing such consent. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 565 (2008). Therefore, Plaintiff need only show that Defendants made a call to a number assigned to a cellular telephone service using an automatic dialing system or prerecorded voice. See 47 U.S.C. § 227(b)(1)(A)(iii).

A. Standing

Defendants argue that Plaintiff does not have standing because he was not the subscriber of the cell phone service, and therefore not the "called party" within the meaning of the TCPA. They rely on the Eleventh Circuit's opinion in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1251 (11th Cir. 2014) which held that "called party" means the subscriber of the cell phone service. Plaintiff responds that he was the subscriber of the cell phone number at the time CFIRM made the calls at issue notwithstanding that he was not charged for the calls, also relying on Osario.

The Eleventh Circuit has held that "called party," for purposes who can give "prior express consent" in the context of § 227(b)(1)(A)(iii), means the subscriber to the cell phone service. Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1251 (11th Cir. 2014); Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265, 1267 (11th Cir. 2014). In doing so, the court in Osorio rejected the defendant's position that "called party" means the intended recipient. Osorio, 746 F.2d at 1252. Osario did not address the issue of who has standing to bring a claim under this section.

Generally, the subscriber is the person who is obligated to pay for the telephone or needs the line in order to receive other calls and has the authority to consent to receive calls that would otherwise be prohibited by the statute. Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 639, 641 (7th Cir. 2012); also Osario, 746 F.3d at 1251 (citing Soppet with approval). However, in some cases the subscriber transfers primary use of the telephone to another, as Plaintiff's employer did here. In such a case, the primary user may be the subscriber's agent, thereby permitting the primary user to consent to being called. See Osario, 746 F.3d at 1252. However, Osario does not necessarily stand for the proposition that the primary user must be the subscriber's agent in order to consent. The court did not need to address that issue because the number at issue belonged to the subscriber, and there is no indication from the opinion that he transferred the number to another person for primary use. Rather, the other individual merely provided the subscriber's number as one of her contact numbers. Id. at 1247.

As at least one district court has recognized, Osario and Breslow may have held that a current subscriber qualifies as a "called party," to the exclusion of a prior subscriber who had authorized the call, but they did not address whether the term also covers a cell phone's current primary user. Gesten v. Stewart Law Grp., LLC, No. 14-61650-CIV, 2014 WL 7243330, at *3 (S.D. Fla. Dec. 19, 2014).

Moreover, several district courts within the Eleventh Circuit, and in other circuits, have construed the statute to confer broader standing than that argued by Defendant. Defendants have not cited binding authority to contrary. Those district courts have held that the primary or regular user of the cell phone has standing. Indeed, the TCPA simply states that "a person or entity" can bring such a claim. 47 U.S.C. § 227(b)(3). This conclusion finds further support from the fact that the TCPA is designed to protect users of telephones from nuisance calls and from unwarranted invasions of their privacy. See Pub.L. 1-2-243, § 2, ¶¶ 12-14, 105 Stat. 2394 (1991) (banning automated or prerecorded telephone calls is the only effective means of protecting telephone consumers from "this nuance and invasion of privacy"; automated or prerecorded telephone calls "are a nuisance, are an invasion of privacy"). Moreover, in Osario, the court also held that a plaintiff need not prove he was charged individually for each autodialed call to his cell phone. Id. at 1258.

There are some inconsistencies in the evidence regarding who pays Plaintiff's cell phone bill. Regardless of whether Plaintiff's employer, Bill Maher Chevrolet is the subscriber in that it owns Plaintiff's cell phone number and pays the bill, Plaintiff is not precluded from having standing as it is not disputed that he was the primary or regular user of his cell phone and received the calls at issue.

B. Plaintiff's Affidavit

Defendants request that Plaintiff's Affidavit be stricken as a sham because it contradicts prior deposition testimony without explanation. Defendants' request is denied. With the exception of Plaintiff's answer as to who pays his cell phone bill, his Affidavit does not flatly contradict earlier clear deposition testimony. Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984) ("When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony."); Faulk v. Volunteers of Am., 444 Fed. App'x 316, 318 (11th Cir. 2011). Although his affidavit provides more specific answers to certain questions, it is not necessarily inconsistent with, or contradictory to, his deposition testimony. The Eleventh Circuit has cautioned that "the court must be careful to distinguish 'between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence.'" Faulk, 444 Fed. App'x at 318 (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)). And, as discussed above, whether Plaintiff pays his cell phone bill or his employer would not change the conclusion that he has standing.

C. Consent

Plaintiff contends that Defendants have failed to demonstrate they obtained prior express consent from Plaintiff. Defendant CFIRM contends it is undisputed that it did. CFIRM has the burden of showing it obtained prior express consent. 23 F.C.C. Rcd. at 565; see Osorio, 746 F.3d at 1253 ("To fall within § 227(b)(1)(A)(iii)'s consent exception, [the defendant] must demonstrate that it had the consent of [the plaintiff], as defined by the common law, to call No. 8626."). Consent may be obtained from current subscriber or his agent, Osario, 746 F.3d at 1251, 1253-54, and is deemed to be given if the cell phone number is provided to the creditor by the consumer in connection with an existing debt. 23 FCC Rcd. at 564; see Osorio, 746 F.3d at1247 (provision of cell phone number in connection with credit card debt could constitute prior express consent); Sartori v. Susan C. Little & Associates, P.A., 571 Fed. App'x 677, 683 (10th Cir. 2014) (consumer's provision of his cell phone number to the creditor because it was unable to reach him at the prior number listed on the account constituted the "prior express consent"). Consent can be revoked, either orally or in writing. Osorio, 746 F.3d at 1255.

Plaintiff argues that Defendants cannot meet their burden of demonstrating they had his consent because they have no documentation of Plaintiff providing consent and no evidence that he provided verbal consent. CFIRM has submitted evidence from which it is fair to infer that Plaintiff provided his cell phone number to it, as the creditor, in connection with his timeshare account. CFIRM produced call logs from December 2004 which reflect that a male individual contacted CFIRM on December 2, 2004 regarding changing the name on Plaintiff's timeshare account. Also in the record is a fax from Plaintiff to the "name change representative" (Dkt. 46-3 at 29) and a letter from Plaintiff enclosing the deed transferring ownership to him (Id. at 30). The call logs include notes referring to what appears to be the fax from Plaintiff and calls from a male individual regarding the status of the name change on the account and wanting to know whether his information is in the system (Dkt. 46-1 at 15).

From this evidence, it is reasonable to infer that the male caller identified in the call logs is Plaintiff. The call logs also contain Plaintiff's cell phone number, which Plaintiff does not dispute. However, he suggests that CFIRM somehow acquired his cell phone number from an "unverified source" (Dkt. 43 at 2). He does not provide any evidence to substantiate this suggestion. Nor does Plaintiff provide evidence of any other way CFIRM would have obtained his cell phone number except from him. Rather, to negate CFIRM's evidence, he submits his own affidavit in which he states that he never provided Defendants with his cell phone number (Dkt. 43-1, ¶ 11-15). As noted previously, Plaintiff's deposition testimony was that he could not recall whether he did or not. Nevertheless, CFIRM has the burden of proving prior express consent. Although just barely, based on the record evidence viewed in the light most favorable to Plaintiff and drawing inferences in his favor, whether Plaintiff provided prior express consent is a disputed issue of material fact precluding summary judgment.

Even if Plaintiff consented to CFIRM's calls, CFIRM is still not entitled to summary judgment because there is an issue of material fact as to whether and when he revoked whatever consent CFIRM might have had. Plaintiff says he told CFIRM at least five times to stop calling him. CFIRM says he did no such thing. As such, the question of whether Plaintiff revoked whatever consent CFIRM might have had should proceed to a jury. See Osario, 746 F.3d at 1256.

D. Vicarious and Individual Liability of All Defendants

Defendants contend that they are not liable for the acts of another defendant where it is clear that only CFIRM made to calls to Plaintiff because direct liability under the TCPA can only be imposed against the entity that made the call. In addition, Defendants contend that direct liability is the only TCPA theory of liability alleged in the Amended Complaint. Plaintiff contends that the four non-calling Defendants may be held vicariously liable for CFIRM's actions. He does not address Defendants' arguments that only direct liability is available and that he has failed to plead a theory of vicarious liability.

It is undisputed that CFIRM made the subject calls. Other than a footnote in the Amended Complaint alleging that "Defendants are believed to be closely related corporate entities, all of which are either controlled or otherwise entwined with Central Florida Investments, Inc.," (Dkt. 15 at 1 n.1), the Amended Complaint alleges no facts to suggest any sort of agency relationship between or among any of the Defendants. However, the Eleventh Circuit's recent decision in Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., No. 13-14013, 2015 WL 1004234 (11th Cir. Mar. 9, 2015) excuses Plaintiff's failure to specifically plead a theory of vicarious liability. In that case, the court held that Florida's heightened pleading standards do not apply to state law claims in federal court. Id. at *1 n.4, *10. It found that the district court erred in dismissing the plaintiff's conversion claim because it failed to satisfy Florida's heightened pleading standard. Id. at *10-11.

All that is required under Federal Rule of Civil Procedure 8's liberal pleading standard is "a short and plain statement of the claim showing that [the plaintiff] was entitled to relief, sufficient to give fair notice to [the defendant] of what the claim was and the grounds upon which it rested." Id. at *11 (internal citations and quotations omitted). It was enough that the complaint in Palm Beach Golf Center-Boca, Inc. alleged that the defendant's "sending of 'unsolicited faxes . . . permanently misappropriated Plaintiff's fax machine, toner, paper, and employee time to Defendant's own use." Id. (internal quotations omitted). Similarly here, Plaintiff alleges that "Defendants contacted Plaintiff's cell phone without express permission, with an automated telephone dialing system" (Dkt. 15, ¶ 10). Under Palm Beach Golf Center-Boca, Inc., that is enough.

In response to Defendants' motion, Plaintiff argues that the non-calling Defendants may be held vicariously liable for the calls placed by CFIRM. Plaintiff cites various cases dealing with agency relationships and makes conclusory statements parroting statements of law. Plaintiff does not, however, cite any record evidence to support these statements. Defendants, as the moving party, bear the initial burden to show that there are no genuine issues of material fact that should be decided at trial. They have met their burden of demonstrating that the non-calling Defendants are not directly liable by showing that only CFIRM placed the calls at issue. Plaintiff does not dispute this. And, he has wholly failed to demonstrate that there is a material issue of fact as to any theory of vicarious liablity. As such, Defendants CFI, Westgate, Westgate Villas, and Westgate HOA are entitled to summary judgment. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

As to Plaintiff's motion on this issue, the conclusory allegations in it are not supported by any facts (see Dkt. 43 at 3, 5-6). And the purported undisputed facts relevant to this issue in his statement of undisputed facts are not supported by the actual evidence. Again, Plaintiff has failed to establish the existence of the essential elements of a vicarious liability claim. See Cleveland, 526 U.S. at 805-06.

Accordingly,

1. Plaintiff's Motion for Summary Judgment and Supporting Memorandum of Law (Dkt. 43) is DENIED.

2. Defendants' Motion for Summary Judgment (Dkt. 45) is GRANTED in part as to Defendants Central Florida Investments, Inc., Westgate Resorts, LTD., Westgate Vacation Villas, LLC, and Westgate Vacation Villas Owners Association, Inc. Defendants' Motion is DENIED in all other respects.

3. The Clerk is directed to ENTER FINAL JUDGMENT in favor of Defendants Central Florida Investments, Inc., Westgate Resorts, LTD., Westgate Vacation Villas, LLC, and Westgate Vacation Villas Owners Association, Inc. and against Plaintiff Greg Soulliere.

4. Defendants' Request for Oral Argument on Motion for Summary Judgment (Dkt. 47) is DENIED.

DONE AND ORDERED this 23^rd day of March, 2015.

/s/ _________

JAMES D. WHITTEMORE

United States District Judge
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