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NICE WIN!: FTSA Defendant Walks Away from Claim Using Some Strong Procedural and Evidentiary Moves and the Czar Approves
Wednesday, June 7, 2023

Really nice moves down in Florida by attorneys for Bright Solar Marketing recently.

In Bales v. Bright Solar Marketing, 2023 WL 3687811 (M.D. Fl. May 26, 2023) Defendant moved for summary judgment arguing that it did not make any of the three calls at issue in the FTSA complaint.

Plaintiff alleges three calls were made but, in discovery, upped that number to 22. The Court refused to permit the additional calls to be let into the case reasoning that doing so would be to permit an ungranted motion for leave to amend the complaint:

Under the FTSA and the similar federal statute, the Telephone Consumer Protection Act (TCPA), each call may be a separate violation giving rise to an award of statutory damages. See Fla. Stat. § 501.059(9)–(10); 47 U.S.C. § 227(b)(3)(B); Calta v. Vision Solar FL, LLC, No. 8:22-CV-897-CEH-MRM, 2022 WL 17730114, at *3, *5 (M.D. Fla. Dec. 16, 2022). And, in determining whether a plaintiff can recover for a call, the circumstances of each call are important. See Newhart v. Quicken Loans Inc., No. 9:15-CV-81250, 2016 WL 7118998, at *3 (S.D. Fla. Oct. 12, 2016) (explaining, in a TCPA case, the importance of examining “individual calls”). Thus, by now seeking to recover for nineteen calls, Bales is attempting to substantively change the nature of his claims. At least three courts in this district have rejected similar attempts to assert new calls at the summary judgment stage. See Wilcox v. Green Tree Servicing, LLC, No. 8:14-CV-1681-T-24, 2015 WL 2092671, at *2 (M.D. Fla. May 5, 2015); Orr v. Credit Prot. Ass’n, L.P., No. 3:13-CV-1530 J-32MCR, 2015 WL 439343, at *1–2 (M.D. Fla. Feb. 3, 2015); Wood v. GC Servs., LP, No. 8:10-CV-1979-T-27TBM, 2012 WL 995207, at *3 (M.D. Fla. Mar. 23, 2012). Having considered the record in this case, this Court similarly concludes that Bales’s argument that Bright Solar violated the FTSA by calling him nineteen times is an improper attempt to amend the Complaint at summary judgment. See Flintlock, 710 F.3d at 1228; see also Merle Wood & Assocs., Inc. v. Trinity Yachts, LLC, 714 F.3d 1234, 1238 (11th Cir. 2013); Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314–15 (11th Cir. 2004) (“A plaintiff may not amend [his] complaint through argument in a brief opposing summary judgment.”); Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1296–97 (11th Cir. 2006). As such, the nineteen alleged calls are not properly before the Court, and Bales is precluded from seeking relief on this basis.

That’s a fantastic win right out of the gate.

But it gets better.

Next the Court considered the evidence on the 3 calls that were alleged in the complaint.

As to the first call, the evidence showed that Plaintiff called the Defendant first and then received a call back. The Court concluded this fact, per se, destroyed Plaintiff’s FTSA claim:

Undisputed evidence shows that Bales called Bright Solar on July 19. See Bales Dep. at 24–25; Fortenberry Decl. at 9, 22. The FTSA prohibits “telephonic sales call[s]” under certain circumstances. Fla. Stat. § 501.059(4), (8). A “[t]elephonic sales call” is a “a telephone call, text message, or voicemail transmission to a consumer….” Id. § 501.059(1)(j) (emphasis added). Similarly, the FTMA prohibits certain “commercial telephone solicitation phone call[s],” which are “unsolicited telephone call[s] to a person initiated by a commercial telephone seller or salesperson.” Fla. Stat. §§ 501.603(1)(a), 501.616(6)(a) (emphasis added). Because Bales called Bright Solar on July 19, 2021, he cannot recover under either statute for this call.

Booyah.

Next as to the second call the Court found that the call logs showed the Plaintiff called Defendant and not vice versa: “But the call records produced by Bright Solar show that Bales, not Bright Solar, made this phone call. See Fortenberry Decl. at 10, 22.”

Strike two!

That just leaves one call–and the court found that Plaintiff’s claim that he was called “[s]ometime after” July 20, 2021 is just too vague to create an issue of fact–especially in light of the Defendant’s records showing no subsequent calls were made!

So overall great work here by the defense lawyers to peel back the onion and go layer by layer. Very nice win. Czar approves!

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