IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

 

CITY SELECT AUTO SALES, INC.,

a New Jersey corporation, 

individually and as the 

representative of a class of 

similarly situated persons,

Plaintiff,

v.

DAVID/RANDALL ASSOCIATES, INC. 

and RAYMOND MILEY, III,

Defendants.

HONORABLE JEROME B. SIMANDLE

Civil Action

No. 11-2658 (JBS/KMW)

OPINION

APPEARANCES:

Alan C. Milstein, Esq.

SHERMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY, PC

Eastgate Corporate Center 

308 Harper Drive, Suite 200

Moorestown, N.J. 08057

-andTod A. Lewis, Esq.

Jonathan B. Piper, Esq.

BOCK & HATCH, LLC

134 N. La Salle St., Ste. 1000

Chicago, Ill. 60602

Attorneys for Plaintiff City Select Auto Sales, Inc.

F. Emmett Fitzpatrick, III, Esq.

FLAMM WALTON, P.C.

794 Penllyn Pike

Blue Bell, PA 19422

Attorney for Defendants and Third Party Plaintiffs David 

Randall Associates, Inc. and Raymond Miley, III

SIMANDLE, Chief Judge:

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Contents

I. INTRODUCTION.............................................. 3

II. BACKGROUND................................................ 7

Factual Background ...................................... 7

Procedural History ..................................... 13

III. Discussion............................................... 16

IV. Defendants’ Motion to Decertify the Class................ 17

Standard of Review Applicable to Defendants’ Motion .... 18

Defendants Fail to Demonstrate that the Class Must be 

Decertified ................................................. 19

V. Plaintiff’s Motion for Class-Wide Summary Judgment....... 24

Standard of Review Applicable to Plaintiff’s Motion .... 24

Summary Judgment Will Be Granted in Favor of the Class and 

against Defendants as to the TCPA Claim ..................... 25

1. The Subject Facsimile Transmissions Constitute “facsimile 

advertisements” under the TCPA ............................ 26

2. No Issues of Fact Exist as to the Unsolicited Nature of 

the Facsimile Advertisements .............................. 28

3. Defendants Constitute “Senders” under the TCPA ........ 35

4. Issues of Fact Preclude Summary Judgment with respect to 

the Claim of Individual Liability against Mr. Miley ....... 38

5. The Record Demonstrates the Class’s Entitlement to an 

Award of Statutory Damages in the Amount of $22,405,000 ... 42

a. Biggerstaff’s Reports and the Underlying B2B Records 

Constitute Admissible Evidence for Purposes of Summary 

Judgment................................................. 44

b. Any Outstanding Issue Concerning the Third-Party 

Default Defendants Does Not Preclude the Entry of Summary 

Judgment in Favor of the Class........................... 52

c. Determination of Damages and Entry of Judgment ...... 54

VI. CONCLUSION............................................... 56

2

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I. INTRODUCTION

In this class action arising under the Telephone Consumer 

Protection Act, 47 U.S.C. § 227 (hereinafter, the “TCPA”), 

Plaintiff City Select Auto Sales, Inc. (hereinafter, 

“Plaintiff”) alleges that Defendants David/Randall Associates, 

Inc. (hereinafter, “Randall”) and Raymond Miley, III (hereafter,

“Miley” and collectively, the “Defendants”) transmitted unlawful

facsimile advertisements 44,832 times to 29,113 different fax 

numbers, through a third-party entity Business to Business 

Solutions (hereinafter, “B2B”).

Plaintiff now seeks the entry of class-wide summary 

judgment against Defendants with respect to the TCPA claims (see

generally Pl.’s Br. [Docket Item 141]), while Defendants move to 

decertify the Class. (See generally Defs.’ Br. [Docket Item 

133].) Both motions, however, principally result from, and/or 

are motivated by, three prior rulings of this Court.

First, on February 7, 2012, the Court rejected Defendants’ 

position that the limitations period applicable to Plaintiff’s 

claims precluded this action from proceeding. See generally

City Select Auto Sales, Inc. v. David Randall Assocs., Inc., No. 

11-2658, 2012 WL 426267, at *5-*6 (D.N.J. Feb. 7, 2012). In 

particular, the Court found, at the Rule 12(b)(6) phase, that

the pendency of a related state court action tolled the 

3

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limitations period for the federal Class members, thereby 

rendering their claims timely. See id. at *5-*6. 

Then, on December 20, 2013, the Court granted Plaintiff’s 

motion for class certification, and certified Plaintiff’s TCPA 

claim under Federal Rule of Civil Procedure 23(b)(3) on behalf 

of the following class: 

All persons or entities, with whom David Randall 

Associates did not have an established business 

relationship, who were successfully sent one or more 

unsolicited faxes during the period March 29, 2006, 

through May 16, 2006, stating, “ROOF LEAKS??? REPAIRS 

AVAILABLE Just give us a call and let our professional 

service technicians make the repairs!” and “CALL: 

David/Randall Associates, Inc. TODAY.”

City Select Auto Sales, Inc. v. David Randall Assocs., Inc., 296 

F.R.D. 299, 308 (D.N.J. 2013). Finally, on September 24, 2014, 

the Court denied Defendants’ motion for summary judgment with 

respect to Plaintiff’s TCPA, state law conversion, and 

individual liability claims, principally on the basis that the 

undisputed facts failed to demonstrate Defendants’ entitlement 

to judgment as a matter of law. See City Select Auto Sales, 

Inc. v. David Randall Assocs., Inc., No. 11-2658, 2014 WL 

4755487 (D.N.J. Sept. 24, 2014).

In seeking the entry of class-wide summary judgment, 

Plaintiff relies in part upon the Court’s denial of Defendants’ 

motion for summary judgment, and argues that the undisputed 

record establishes the Class’s entitlement to judgment as a 

4

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matter of law to statutory damages under the TCPA in the amount 

of $22,405,000. (See generally Pl.’s Br. [Docket Item 141].) 

Plaintiff, in particular, submits that the uncontroverted record 

demonstrates that Defendants hired B2B to send facsimile 

advertisements on Defendants’ behalf without the recipients’ 

prior express invitation or permission, nor the appropriate optout notice, and in violation of the TCPA. (Id. at 4, 14-24.) 

Defendants, however, insist that factual disputes pervade the 

record as to the admissibility of Plaintiff’s reconstruction of

the B2B computer records, certain Class members consent to 

receive facsimile advertisements, and Mr. Miley’s personal 

liability for the disputed transmissions. (See generally Defs.’ 

Opp’n [Dock Item 146].)

In addition to opposing Plaintiff’s motion, however,

Defendants move to decertify the Class on the basis that the 

Court’s December 20, 2013 Certification Order rested upon “a 

false factual premise,” namely, that only residents of New 

Jersey comprised the putative class members encompassed by 

Plaintiff’s proposed class definition. (See Defs.’ Br. [Docket 

Item 133].) In particular, Defendants argue that Plaintiff’s

“belated production” of the names and addresses of the class 

members recently revealed that non-New Jersey residents comprise

64% of the Class. (Defs.’ Reply [Docket Item 140], 3-5.)

5

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Therefore, Defendants assert that the presently certified Class 

suffers from a “fundamental jurisdictional” deficiency, because 

this Court “indisputably lacks subject matter jurisdiction” over 

any recipient of facsimile transmissions beyond the borders of 

the State of New Jersey. (Id. at 1-5.)

The pending motions present three primary issues. First, 

the Court must consider whether the inclusion of non-New Jersey 

residents in the certified Class constitutes newly discovered 

evidence. Second, the Court must determine whether such 

composition requires modification of the Court’s prior decision 

on class certification. Finally, the Court must consider 

whether genuine issues of disputed fact concerning Defendants’ 

liability under the TCPA preclude the summary disposition of 

this action in favor of the Class.1

For the reasons explained below, Defendants’ motion to 

decertify class will be denied, and Plaintiff’s motion for 

class-wide summary judgment will be granted with respect to

Defendant David/Randall Associates, Inc., but denied with 

respect to Defendant Raymond Miley, III.2

1 The Court exercises subject matter jurisdiction over 

Plaintiff’s TCPA claims pursuant to 28 U.S.C. § 1331, and 

supplemental jurisdiction over Plaintiff’s state law claims 

under 28 U.S.C. § 1367(a).

2 The Court conducted oral argument on the pending motions on 

February 25, 2015.

6

 

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II. BACKGROUND

Factual Background

The factual record in this action remains largely unchanged 

from that set forth in the Court’s September 24, 2014 Opinion.3 

Nevertheless, the Court turns to the parties’ respective 

statements of material facts.

3 At the outset, the Court rejects Defendants’ assertion that the 

Court’s September 24, 2014 denial of their motion for summary 

judgment precludes, by itself, the entry of summary judgment in 

Plaintiff’s favor, and/or provides a basis to oppose Plaintiff’s 

statement of material facts. (See, e.g. Defs.’ RSMF at ¶¶ 26-

35, 37-47.) As stated below the Court’s September 24, 2014 

Opinion found that the undisputed record failed to demonstrate 

Defendants’ entitlement to judgment as a matter of law on 

Plaintiff’s TCPA and personal liability claims against 

Defendant. See City Select Auto Sales, Inc., 2014 WL 4755487, 

at *7, *9-*10. In so finding, the Court rejected Defendants’ 

legal position that they did not constitute a sender under the 

TCPA, and Defendants’ factual position that the record failed to 

demonstrate “Miley’s ‘personal involvement in the commission of 

any tort of the violation of any statute.’” Id. at *9 (citation 

omitted). Rather, as relevant here, the Court found that the 

undisputed factual record “clearly depict[ed] Miley as 

intimately involved” in the “discussions and negotiations with 

B2B concerning the fax broadcasting program.” Id. 

Consequently, the Court finds Defendants’ reliance upon the 

Court’s September 24, 2014 decision insufficient, standing 

alone, as a basis to oppose Plaintiff’s motion for summary 

judgment, or to otherwise demonstrate the presence of a genuine 

issue of fact. (See, e.g., Defs.’ SMF at ¶¶ 26-25, 36-67, 69-71, 

73.) Moreover, whether a factual dispute is “material” will 

depend upon the context of the parties’ respective burdens at 

trial. As with cross-motions for summary judgment, the test for 

granting or denying summary judgment is applied on a motion-bymotion basis.

7

 

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In the spring of 2006, Raymond Miley, III acted as 

President, Shareholder, Officer and Director of David/Randall 

Associates, Inc., a commercial roofing company organized under 

the laws of the Commonwealth of Pennsylvania. (See Pl.’s SMF at 

¶¶ 2-3.) During the same period, third-party defendants 

Caroline Abraham and Joel Abraham “operated an unincorporated 

advertising business” named “‘Business to Business Solutions,’”

or “B2B,” which disseminated facsimile advertisements, on behalf 

of its clients, to a list of U.S. companies purchased from 

InfoUSA.4 (Id. at ¶¶ 10, 12, 17.)

4 The Court rejects Defendants’ assertion that “[e]very single 

factual assertion” set forth in the “unsworn” Declaration of 

Caroline Abraham constitutes inadmissible evidence in context of 

Plaintiff’s pending motion for summary judgment. (See, e.g., 

Defs.’ SMF at ¶ 10.) Affidavits or declarations in support of 

or in opposition to a motion for summary judgment must “be made 

on personal knowledge,” must “affirmatively” indicate the 

affiant’s competence to testify to such matters, and must set 

forth facts that would otherwise “be admissible in evidence.” 

FED. R. CIV. P. 56(c)(4); see also Leese v. Martin, No. 11-5091, 

2013 WL 5476415, at *6 (D.N.J. Sept. 30, 2013) (same). In other 

words, the Court may rely upon an affidavit for purposes of 

summary judgment only to the extent such affidavit constitutes 

evidence at least potentially admissible at trial. See Hurd v. 

Williams, 755 F.2d 306, 308 (3d Cir. 1985). Here, Ms. Abraham

swore to the contents of her affidavit, under penalty of 

perjury, before a notary public, and based her statements upon 

personal knowledge. (See generally Abraham Aff.) Therefore, as 

stated in greater detail below, the Court finds that Ms. 

Abraham’s affidavit constitutes admissible evidence for purposes 

of summary judgment. See The Phoenix Ins. Co. v. W. Jersey Air 

Conditioning & Heating Co., No. 09-5570, 2010 WL 4259174, at *3 

(E.D. Pa. Oct. 26, 2010). 

8

 

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Mr. Miley, who directed David/Randall’s “marketing and 

advertising” campaigns (id. at ¶ 5), became aware of B2B’s 

services after B2B solicited David/Randall’s business, and

offered to market David/Randall’s roofing services through B2B’s 

fax advertising services. (Id. at ¶¶ 26.) Following the 

solicitation, Mr. Miley directed his administrative 

assistant/office manager, April T. Clemmer, to contact B2B on 

his behalf, in order to inquire into the specific pricing and 

distribution details of B2B’s fax marketing services.5 (Clemmer 

Dep. at 9:22-16:1.)

After Ms. Clemmer obtained additional information

concerning B2B, Mr. Miley suggested that the service might be 

beneficial for advertising David/Randall’s service repairs. 

(Clemmer Dep. at 15:8-13.) Ms. Clemmer, accordingly, continued 

to communicate with B2B concerning B2B’s pricing, proposed 

advertisements, and the targeted audience for the potential “fax 

blast” campaign. (Pl.’s SMF at ¶¶ 35-36; see also Pl.’s Ex. 3 

to Miley Dep.) Following an exchange of proposed 

5 Though, as stated below, Ms. Clemmer directed all of 

David/Randall’s communications with B2B, the undisputed record 

reflects that Ms. Clemmer “reported directly to Miley,” and did 

not have independent “authority to enter into contracts on 

behalf of [David/Randall], [to] bind the company either 

contractually or to pay moneys,” and/or to issue checks from 

“the company bank account.” (Pl.’s SMF at ¶¶ 8-9; Defs.’ SMF at 

¶¶ 8-9 (“Undisputed”).)

9

 

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advertisements, on March 26, 2006, Ms. Clemmer faxed “the 

approved ad” to B2B, along with a list of zip codes to be 

“solicited for business.” (Pl.’s Ex. 8 to Miley Dep.; Pl.’s SMF 

at ¶ 41.) 

The approved fax, which appears to have remained unchanged 

throughout the remainder of B2B and David/Randall’s 

relationship, stated “ROOF LEAKS??? REPAIRS AVAILABLE,” and 

directed recipients in “Eastern PA, NJ, and Mid-State DE” to 

call David/Randall for “the repair and maintenance of most major 

roofing systems.” (Pl.’s Exs. 6-7 to Miley Dep.; see also Pl.’s 

SMF at ¶ 42.) In addition, the ad provided an array of contact 

information for David/Randall, and indicated that the 

advertisement had been sent to the recipient because some 

“person” at the recipient’s business “supplied the fax number 

and permission to send faxes.” (Pl.’s Exs. 6-7 to Miley Dep.) 

Nevertheless, the advertisement provided “a toll free ‘Remove’ 

number” for recipients to be removed from the distribution list. 

(Id.)

Thereafter, David/Randall received a letter (directed to 

the attention of Ms. Clemmer), which stated that B2B had 

“everything needed to start [David/Randall’s] faxing campaign, 

except payment.” (Exs. 8-9 to Clemmer Dep.) Ms. Clemmer, in 

turn, faxed B2B a “David/Randall Associates, Inc.” check for 

10

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$422.00 in connection with David/Randall’s “campaign for 12,000 

faxes” on March 28, 2006, and directed that the transmissions be 

sent on the “morning” of March 29, 2006. (Pl.’s Ex. 9 to Miley 

Dep (emphasis in original).) 

Following the first “advertisement blast,” however, 

David/Randall received multiple complaints concerning the 

unsolicited nature of the advertisements. (See Exs. 12, 27 to 

Clemmer Dep.) Several complaints further stated that the remove 

hotline seemed ineffective and/or unavailable, and suggested 

that the advertisements violated applicable law. (See Ex. 27 to 

Clemmer Dep.) As a result, Ms. Clemmer forwarded the list of 

“Annoyed Recipients” to B2B on March 29, 2006, and requested 

that the identified fax numbers be removed from any future

distribution lists. (Id.; see also Pl.’s SMF at ¶ 49.)

Despite the complaints, Ms. Clemmer wrote to B2B on March 

31, 2006, and stated that David/Randall “would like to do 

another fax marketing blitz” during the morning of an upcoming 

“rainy day.” (Exs. 13-14 to Clemmer Dep. (emphasis in 

original).) In particular, Ms. Clemmer indicated that 

David/Randall sought to send another 12,000 transmissions of the 

previously-approved ad, and requested that the “areas solicited 

for th[e] campaign” include “New Jersey: Hunterdon, Mercer, 

Burlington, Camden, Gloucester & Salem Counties[;] Delaware: New 

11

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Castle County only [; and] Pennsylvania: Bucks & Chester 

Counties.” (Id.) Following confirmation from B2B, Ms. Clemmer 

faxed a David/Randall check to B2B in the amount of $394.00 as 

“payment-in-full” for the second “fax blitz.” (Ex. 15 to 

Clemmer Dep.)

After the second advertisement blast, however, Ms. Clemmer 

again advised B2B to “REMOVE” various entities from the 

distribution list, particularly because several of the 

complainants “threatened to pursue legal action” and/or to 

contact the Federal Communications Commission. (Id. (emphasis 

in original).) In addition, Ms. Clemmer stated that several of 

the recipients “notified” her that the law requires that a 

“‘800’ number opt out” be provided, and that many recipients 

reported that the existing hotline remained unavailable. (Id.)

Nevertheless, on April 12, 2006, Ms. Clemmer requested, on 

a third occasion, that B2B “send 18,000 faxes in [an additional]

fax campaign,” in addition to providing new numbers to be 

removed from B2B’s distribution list. (Pl.’s SMF at ¶ 60; see

also Ex. 17 to Clemmer Dep.) On the same day, Ms. Clemmer sent 

B2B a check for $565.00 in connection with David Randall’s “3rd

campaign [of] another 18,000 faxes,” with instructions that the 

faxes “BE SENT FRIDAY MORNING (4-14-06)!”

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Following the third fax “blitz,” Ms. Clemmer again advised 

B2B, on April 17, 2006, of “requests to have FAX numbers removed 

from [B2B’s] list.” (Ex. 27 to Clemmer Dep.) Despite the 

continuing complaints, however, on May 12, 2006, David Randall 

authorized a “fourth-fax blasting campaign” on May 12, 2006. 

(Pl.’s SMF at ¶ 65.) As with the previous blasts, Ms. Clemmer

requested that 12,000 faxes be sent “to the original area 

[David/Randall] targeted in March,” i.e., New Jersey, New Castle

County in Delaware, and Bucks and Chester Counties in 

Pennsylvania. (Ex. 22 to Clemmer Dep.) In addition, Ms. 

Clemmer enclosed a check for $394.00 and directed that the “Fax 

blast” be completed during the morning of May 15, 2006.

Procedural History

On May 4, 2009, G. Winter’s Sailing Center, Inc. filed a 

putative class action against David/Randall in the Superior 

Court of New Jersey, alleging that the same series of 

unsolicited faxes violated the TCPA. See City Select Auto 

Sales, Inc. v. David Randall Assocs., Inc., No. 11-2658, 2012 WL

426267, at *1 (D.N.J. Feb. 7, 2012). The state court pleading

specifically alleged that “‘Defendant faxed the same and similar 

advertisements to Plaintiff and more than 39 other recipients 

without first receiving the recipients’ express permission or 

invitation.’” Id. (citation omitted). The state court, 

13

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however, never certified the action on behalf of a class. Id. 

Rather, because the plaintiff moved for certification “nearly 

two years” into the litigation, the state court denied the 

motion on timeliness grounds, and concluded that the case would 

proceed to trial only with respect to the claims of the single 

plaintiff. Id. at *2. The parties reached a settlement shortly 

thereafter, and the state court closed the case on April 27, 

2011. Id. (citation omitted).

This federal action followed on May 10, 2011, similarly on 

the ground that David/Randall sent “form facsimile” 

advertisements to “29,113 unique fax numbers” without “prior 

express permission or invitation.” (See Class Action Compl. at 

¶¶ 13, 14, 29.) Defendants then moved to dismiss Plaintiff’s 

Complaint, primarily on the grounds that the applicable 

limitations period barred Plaintiff’s claims for relief. (See

Defs.’ Br. [Docket Item 8].) 

On February 7, 2012, however, this Court concluded that, 

under American Pipe & Construction Company v. Utah, 414 U.S. 538

(1974), the pendency of the state court putative class action 

tolled the limitations period for “claims on behalf of unnamed 

alleged recipients” of unsolicited facsimile advertisements

“during at least the first fourteen months of the Superior Court 

action.” City Select Auto Sales, Inc. v. David Randall Assocs., 

14

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Inc., No. 11-2658, 2012 WL 426267, at *5-*6 (D.N.J. Feb. 7, 

2012). Therefore, based upon the face of the Complaint, the 

Court found the claims against Defendants timely. See id. 

Defendants then answered Plaintiff’s Complaint, and filed a 

third-party Complaint against the operators of B2B, Caroline 

Abraham and Joel Abraham (hereinafter, the “Abrahams”). [Docket 

Item 23.] The Abrahams, however, never responded to Plaintiff’s 

Complaint, and the Court entered default on December 17, 2012.

[Docket Item 53.]

On December 20, 2013, the Court certified Plaintiff’s TCPA 

claim under Federal Rule of Civil Procedure 23(b)(3) on behalf 

of the following class: 

All persons or entities, with whom David Randall 

Associates did not have an established business 

relationship, who were successfully sent one or more 

unsolicited faxes during the period March 29, 2006, 

through May 16, 2006, stating, “ROOF LEAKS??? REPAIRS 

AVAILABLE Just give us a call and let our professional 

service technicians make the repairs!” and “CALL: 

David/Randall Associates, Inc. TODAY.”

City Select Auto Sales, Inc., 296 F.R.D. at 308,6 and then 

approved, subject to certain revisions, Plaintiff’s proposed 

class notice form. See City Select Auto Sales, Inc. v. David 

6 On March 20, 2014, the Court of Appeals for the Third Circuit 

denied Defendants’ petition for leave to appeal this Court’s 

certification opinion. See City Select Auto Sales, Inc. v. 

David/Randall Associates, Inc., App. No. 14-8001.

15

 

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Randall Assocs., Inc., No. 11-2658, 2014 WL 413533, at *3 

(D.N.J. Feb. 3, 2014).

This action thereafter proceeded on behalf of the 

identified Class and, on September 24, 2014, the Court denied 

Defendants’ motion for summary judgment with respect to 

Plaintiff’s TCPA, state law conversion, and individual liability 

claims. See City Select Auto Sales, Inc., 2014 WL 4755487. The 

pending motions followed thereafter.

III. DISCUSSION

As stated above, the pending motions present diametrically 

opposed positions. Defendants’ motion hinges upon their

assertion that the Court’s certification of this action on 

behalf of the identified Class rested upon a flawed factual 

premise, requiring that the Class be reduced by 64%. (See

generally Defs.’ Br.) Plaintiff’s motion, by contrast, turns 

upon its assertion that the undisputed record warrants summary 

disposition of this action in favor of the presently certified

Class. (See generally Pl.’s Br.) However, by challenging the 

propriety of the Class, Defendants’ motion presents a threshold 

inquiry for resolution prior to Plaintiff’s motion. Therefore, 

the Court will first address the merits of Defendants’ motion to 

decertify.

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IV. DEFENDANTS’ MOTION TO DECERTIFY THE CLASS

In support of “decertification,” Defendants insist that the 

Court’s certification decision rested upon the flawed premise 

that only New Jersey residents comprised the unnamed facsimile 

recipients in the state court putative class action. (Defs.’ 

Br. at 3-5; Defs.’ Reply at 1-5.) Defendants submit, however, 

that a “new” list of class members has revealed that non-New 

Jersey recipients comprise 64%, or 18,659 fax recipients, of the 

class. (Defs.’ Br. at 4-5.) As a result, Defendants argue that

the facts now reflect that “the New Jersey Superior Court never 

had jurisdiction over the putative claims of the 18,659 non-New 

Jersey recipients” based upon the “immutable” axiom that a state 

court lacks jurisdiction “over acts of non-residents which occur 

entirely outside of its borders.” (Defs’ Br. at 5; Defs.’ Reply 

at 3.) Defendants therefore insist that “American Pipe provides 

no possible support for tolling putative claims” that extend

beyond the state court’s jurisdiction, rendering the claims of 

the non-New Jersey residents “definitively time-barred,” and 

requiring that they be excluded from the Class. (Defs.’ Br. at 

5.) Plaintiff, however, argues that Defendants’ untimely 

assertions have been waived and/or lack merit, particularly 

because New Jersey state courts may, in appropriate cases,

assert jurisdiction over non-resident class members in a 

17

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multistate class actions. (See Pl.’s Opp’n at 2-3, 7-11.) For 

the reasons that follow, Defendants’ motion will be denied.

Standard of Review Applicable to Defendants’ Motion

The parties dispute the manner in which to construe 

Defendants’ motion. (Compare Pl.’s Opp’n at 1-8 (arguing that 

Defendants’ motion constitutes an inappropriate motion for 

reconsideration), with Defs.’ Reply at 1, 3 (insisting that 

Defendants’ motion presents a “never forfeited or waived” 

challenge to the Court’s subject matter jurisdiction, rather 

than a motion for reconsideration).) Nevertheless, given the 

substantive assertions in Defendants’ motion, the Court does not 

find this inquiry particularly complex.

Indeed, Federal Rule of Civil Procedure 23(c)(1)(C) 

specifically provides that an order determining whether to 

certify a class action “may be altered or amended” at any time 

prior to “final judgment.” FED. R. CIV. P. 23(c)(1)(C). Rule 

23(c)(1)(C) therefore enables courts to consider whether a prior 

class certification order should be revised “‘where the original 

determination [becomes] unsound’” based upon “‘a changed factual 

circumstance.’” In re FleetBoston Fin. Corp. Sec. Litig., No. 

02-4561, 2007 WL 4225832, at *5 (D.N.J. Nov. 28, 2007). 

Nevertheless, the Rule compels essentially the same inquiry as 

under Local Civil Rule 7.1(i). See Kulig v. Midland Fund, LLC, 

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No. 13-4715, 2014 WL 6769741, at *1 (S.D.N.Y. Nov. 20, 2014) 

(noting that a court may revisit a prior decision on 

certification under Rule 23(c)(1)(C), if the movant identifies 

“‘compelling reasons such as an intervening change of 

controlling law, the availability of new evidence, or the need 

to correct a clear error or prevent manifest injustice.’”) 

(citation omitted); Fulford v. Transport Serv., Co., Nos. 03-

2472, 03-2636, 2004 WL 1474574, at *1 (E.D. La. June 29, 2004) 

(same).

As a result, a party seeking modification of a prior 

certification decision must demonstrate either: “‘(1) an 

intervening change in controlling law; (2) the availability of 

new evidence not available previously; or (3) the need to 

correct a clear error of law or prevent manifest injustice.’” 

Andreyko v. Sunrise Sr. Living, Inc., 993 F. Supp. 2d 475, 478 

(D.N.J. 2014) (citations omitted).

Defendants Fail to Demonstrate that the Class Must be 

Decertified

Based upon the submissions, the Court finds that 

Defendants’ motion amounts to little more than a nuanced

disagreement with the essential analysis set forth in the 

Court’s prior Opinions. Critically, although Defendants assert 

that Plaintiff’s belated production of the names and addresses 

of the class members implicated in this action only recently 

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revealed “that the putative class in this case includes non-New 

Jersey residents,” (Defs.’ Reply at 4 (emphasis in original)),

the record readily reflects that Defendants have long known that 

this action concerns facsimile recipients beyond the borders of 

the State of New Jersey. 

Indeed, Mr. Miley testified that David/Randall services 

“hundreds of companies” in its “primary area of business ... 

from Harrisburg east in Pennsylvania [and] from midstate New 

Jersey south to midstate Delaware.” (Miley Dep. at 56:11-15.) 

The disputed advertisements in this action, accordingly, all 

facially reflected David/Randall’s solicitation of business 

throughout “Eastern PA, NJ, and Mid-State DE” (Pl.’s Ex. 14 to 

Miley Dep.), and David/Randall specifically requested that B2B 

advertise its services to businesses across more than 70 zip 

codes in Pennsylvania and at least one entire county in 

Delaware. (See, e.g., Pl.’s Ex. 8 to Miley Dep.; Exs. 13, 17, 

18, 22, 23 to Clemmer Dep.) Given these circumstances, 

Defendants can hardly be heard to claim that the presence of 

non-New Jersey recipients as class members in this action 

constitutes a new and/or recent development. Indeed, in 

repeatedly and expressly requesting that B2B transmit facsimile 

advertisements throughout Delaware, Pennsylvania, and New 

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Jersey, Defendants themselves defined the multistate scope of 

the present Class.

Moreover, the geographic composition of the Class was

readily apparent in 2010 when Defendants received the B2B hard 

drive containing the fax transmissions logs or, at the latest,

in early 2011, following an examination of the B2B hard drive by 

Defendants’ forensic experts. (See Pl.’s Opp’n at 4 n.1; see

also Ex. C to Defs.’ Opp’n to Pl.’s Mot. for Class Certification

(discussing the January 17, 2011 examination of the B2B hard 

drive by Defendants’ “forensic experts”).) 

The composition of the Class therefore fails to constitute 

new evidence sufficient to warrant modification of the Court’s 

decision on certification. Indeed, “in the absence of 

materially changed or clarified circumstances courts should not 

condone a series of rearguments” on the propriety of class 

certification, and Defendants’ attempt to do so here warrants, 

without more, the denial of the pending motion. Hartman v. 

United Bank Card, Inc., 291 F.R.D. 591, 597 (W.D. Wash. 2013)

(emphasis added); see Shanahan v. Diocese of Camden, No. 12-

2898, 2014 WL 1217859, at *3 (D.N.J. Mar. 23, 2014) (generally 

noting that material changes do not include the assertion of 

“new arguments in order to get a second bite at the apple.”) 

(citation and quotation marks omitted). 

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Nevertheless, the Court also finds Defendants’

“jurisdictional” challenge without merit. (Defs.’ Reply at 2-3.) 

Critically, New Jersey law contains no blanket prohibition 

against non-New Jersey residents being included in New Jersey 

state court class actions. To the contrary, New Jersey courts 

have repeatedly found certification of multistate classes to be 

appropriate, provided that “variations in state law [do not]

swamp common issues and defeat predominance.” Beegal v. Park W. 

Gallery, 925 A.2d 684, 694 (N.J. Super. Ct. App. Div. 2007) 

(noting the permissibility of “multi-state” or “nationwide” 

class actions in New Jersey state courts, even in the absence of 

specific New Jersey conduct by the defendants) (citation 

omitted); Delgozzo v. Kenny, 628 A.2d 1080, 1092 (N.J. Super. 

Ct. App. Div. 1993) (noting same in connection with a non-New 

Jersey defendant that provided “‘blue flame’ oil furnaces” 

throughout New Jersey, New York, Connecticut, and the United 

States). Indeed, under certain, albeit rare circumstances, New 

Jersey law permits the application of a single state law to “all 

claims” in “a nationwide class action.” Beegal, 925 A.2d at 694 

(citation omitted). Therefore, the Court rejects Defendants’ 

assertion that no set of circumstances would have empowered the 

Superior Court of New Jersey to certify a class comprised, in 

part, of non-New Jersey residents. (See, e.g., Defs.’ Reply at 

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2-3.) Rather, the weight of New Jersey authority readily 

reflects the state court’s ability to consider the certification 

of a multistate class, particularly where, as here, the action 

primarily turns on the application of a single federal law. The 

Court, accordingly, finds that the state court could conceivably 

have certified a TCPA class comprised of non-New Jersey 

residents.7 Moreover, Defendants do not, and cannot, dispute 

this federal Court’s authority to exercise subject matter 

jurisdiction over a multistate class in connection with this 

federal class action litigation. See In re Sch. Asbestos 

Litig., 789 F.2d 996, 1010 (3d Cir. 1986) (observing the 

plausibility of multistate class actions, but noting the need to 

analyze variations in state law in order to ensure that “class 

certification does not present insuperable obstacles”), cert. 

denied, 479 U.S. 852 (1986).

7 Nor does the fact that the New Jersey Appellate Division has 

questioned the superiority of the class action mechanism in the 

TCPA context require any different conclusion. See, e.g., 

Levine v. 9 Net Ave, Inc., No. A-1107-00T1, 2001 WL 34013297 

(N.J. Super. Ct. App. Div. June 7, 2001); Local Baking Products, 

Inc. v. Kosher Bagel Munch, Inc., 23 A.3d 469 (N.J. Super. Ct. 

App. Div. 2011). To the contrary, absent a definitive 

determination by an appellate state court in New Jersey that no

TCPA class action could ever be maintained by trial courts in 

the State, it remains conceivable that the Superior Court in the 

earlier, related putative class action could have found 

certification of the TCPA claim appropriate. 

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For all of these reasons, the Court rejects Defendants’

contention that this action must be decertified, or 

alternatively that the class must be narrowed to New Jersey 

residents, for lack of subject matter jurisdiction. The Court 

will, accordingly, deny Defendants’ motion, and turns to 

Plaintiff’s motion.

V. PLAINTIFF’S MOTION FOR CLASS-WIDE SUMMARY JUDGMENT

In support of class-wide summary judgment, Plaintiff 

submits that the uncontroverted record demonstrates that 

Defendants hired B2B to send facsimile advertisements on 

Defendants’ behalf without the recipients’ prior express 

invitation or permission, nor the appropriate opt-out notice, 

and in violation of the TCPA. (See generally Pl.’s Br. at 4, 

14-24.) Defendants, however, insist that factual disputes 

pervade the record, and therefore preclude summary disposition 

in favor of Plaintiff and the Class. (See generally Defs.’ 

Opp’n [Dock Item 146].) For the reasons that follow, 

Plaintiff’s motion will be granted.

Standard of Review Applicable to Plaintiff’s Motion

Federal Rule of Civil Procedure 56(a) generally provides 

that the “court shall grant summary judgment if the movant shows 

that there is no genuine dispute as to any material fact” such

that the movant is “entitled to judgment as a matter of law.” 

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FED. R. CIV. P. 56(a). A “genuine” dispute of “material” fact

exists where a reasonable jury’s review of the evidence could 

result in “a verdict for the non-moving party” or where such 

fact might otherwise affect the disposition of the litigation.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Disputes over irrelevant or unnecessary facts, however, fail to

preclude the entry of summary judgment. Id. In evaluating a 

motion for summary judgment, the Court must view the evidence in 

the light most favorable to the non-moving party, and must 

provide that party the benefit of all reasonable inferences. 

Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey v. Pfeiffer, 

750 F.3d 273, 287 (3d Cir. 2014). However, any such inferences 

“must flow directly from admissible evidence[,]” because “‘an 

inference based upon [] speculation or conjecture does not 

create a material factual dispute sufficient to defeat summary 

judgment.’” Halsey, 750 F.3d at 287 (quoting Robertson v. 

Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990); 

citing Anderson, 477 U.S. at 255).

Summary Judgment Will Be Granted in Favor of the Class 

and against Defendants as to the TCPA Claim

The TCPA seeks to address “an increasingly common nuisance—

telemarketing,” Erienet, Inc. v. Velocity Net, 156 F.3d 513, 514 

(3d Cir. 1998), and specifically prohibits the transmission of a 

facsimile advertisement absent the recipient’s prior express 

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invitation or permission. See 47 U.S.C. §§ 227(a)(4), 

(b)(1)(C)(i)-(iii). Consequently, in order to grant summary 

judgment on a TCPA claim, the plaintiff must specifically point 

to evidence in the record sufficient to establish that: (1) the 

defendant utilized a “telephone facsimile machine” to send “one 

or more faxes;”8 (2) that the transmissions constituted

“‘advertisements;’” and (3) that the defendant sent the 

transmissions without the recipient’s consent, absent 

application of one of the statutory exceptions. Brodsky v. 

HumanaDental Ins. Co., No. 10-C-3233, 2014 WL 2780089, at *6 

(N.D. Ill. June 12, 2014) (citation omitted). The Court will 

address Plaintiff’s factual showing with respect to each 

requirement in turn.

1. The Subject Facsimile Transmissions Constitute

“facsimile advertisements” under the TCPA

The TCPA defines an “advertisement” as “any material 

advertising the commercial availability or quality of any 

property, goods, or services.” 47 U.S.C. § 227(a)(4). 

8 The Court need not discuss the first element, because 

Defendants conceded that B2B utilized a fax machine, or an 

equivalent computer-based fax broadcasting application, in order 

to send the advertisements at issue in this litigation on 

Defendants’ behalf. (Defs.’ Opp’n at 27-28.) Indeed, 

throughout the course of this lengthy litigation, no party has 

challenged the fact that this action concerns, at its core, 

B2B’s use of a “facsimile machine,” as defined in 47 U.S.C. §

227(a)(3). 

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Defendants do not dispute that the approved facsimile 

advertisements highlighted David/Randall’s roofing services, and 

directed recipients to contact David/Randall for their 

“maintenance and repair needs”. (See generally Defs.’ SMF at ¶

74; see also Pl.’s SMF at ¶ 74.) Indeed, Defendants admit that 

the subject facsimiles describe the commercial availability of 

property, goods, and/or services offered by David/Randall. (See, 

e.g., Ex. D. to Pl.’s Br.; Ex. B. to Defs.’ Opp’n; Pl.’s Ex. 6 

to Miley Dep. (directing recipients to call David/Randall

“TODAY” and to “let [its] professional service technicians make” 

any necessary roofing repairs).) Defendants further concede 

that David/Randall’s records reflect that Mr. Miley approved the 

advertisement on David/Randall’s behalf.9 (See Defs.’ SMF at ¶

72; see also Pl.’s SMF at ¶ 72; Miley Dep. at 35:15-16 (“I don’t 

recall approving it, but [the document] says I did.”).) 

Therefore, the Court finds that the subject facsimiles 

constitute advertisements under the TCPA as a matter of law. 

9 For that reason, and those stated below, the Court finds no 

credible support for Defendants’ position that the ad “is 

facially suspect and cannot possibly be found to constitute even 

a representation of the fax which it purports to be without 

testimony from whoever actually created it.” (Defs.’ Opp’n at 

30.) Critically, the record contains no fewer than forty 

identical copies of the disputed advertisements, nearly all of 

which come from Defendants’ own documents and/or communications 

with B2B.

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See 47 U.S.C. § 227(a)(4) (noting that a qualifying 

advertisement under the TCPA need only advertise “the commercial 

availability or quality of any property, goods, or services”).

2. No Issues of Fact Exist as to the Unsolicited 

Nature of the Facsimile Advertisements

The TCPA defines “unsolicited” as material “transmitted to 

any person without that person’s prior express invitation or 

permission.” 47 U.S.C. § 227(a)(4). 

Here, Defendants concede that neither David/Randall nor Mr. 

Miley obtained the facsimile recipients’ express consent prior 

to contracting with B2B for the facsimile advertising campaigns. 

(See Defs.’ SMF at ¶ 19.) Indeed, the undisputed record 

evidence reflects that Defendants never possessed a list of the 

intended fax recipients, nor requested such list from B2B. (See

id.) Rather, Defendants argue that factual disputes preclude 

summary judgment, in light of Defendants’ purported “preexisting business relationship” with “at least 183” of the 

asserted class members, and because certain class members, 

including the named Plaintiff, “voluntarily and prominently 

publicized” their fax numbers for public distribution on their 

respective websites. (Defs.’ Opp’n at 23-25 (citation omitted); 

see also Fallon Aff. At ¶ 7 (noting that 183 class members “had 

existing business relationships with David Randall Associates 

Inc., prior to April, 2006, either as customers or vendors”).)

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The Court, however, need not belabor Defendants’ position, 

because the Court previously rejected Defendants’ identical

position in connection with the Court’s decision on class 

certification. See generally City Select Auto Sales, Inc., 296 

F.R.D. 299.

Nevertheless, the Court notes that, as relevant here, the 

ban on unsolicited facsimile advertisements specifically does 

not apply if: (1) the sender has an “established business 

relationship” with the recipient, 47 U.S.C. § 227(b)(1)(C)(i), 

and (2) the recipient “voluntarily” publicized “its facsimile 

number for public distribution.” 47 U.S.C. § 227(b)(1)(C)(ii). 

In other words, “fax advertisements are not prohibited if the 

unsolicited advertisement is ‘from a sender with an established 

business relationship’” and the sender obtained the fax number 

through an internet website. City Select Auto Sales, Inc., 296 

F.R.D. at 315 (citing 47 C.F.R. § 64.1200(a)(4)). The Federal 

Communications Commission, however, has specifically advised 

that the availability of a facsimile number on “a directory, 

advertisement or website does not alone entitle a person to send 

a facsimile advertisement to that number.” In the Matter of 

Rules & Regulations Implementing the Tel. Consumer Prot. Act of 

1991 Junk Fax Prevention Act of 2005, 21 F.C.C.R. 3787, 3796 

(2006). Therefore, publishing a fax number on a website does 

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not, by itself, constitute consent to receive unsolicited fax 

advertisements under 47 U.S.C. § 227(b)(1)(C)(ii). See id. 

Consequently, even if David/Randall had an existing 

business relationship with certain class members, the record 

contains no indication that class members sufficiently 

publicized their facsimile number “for public distribution” in 

accordance with 47 U.S.C. § 227(b)(1)(C)(ii), nor that any class 

members possessed both an established business relationship with 

David/Randall and a sufficiently publicized facsimile number. 

(See generally Fallon Aff.) Indeed, in support of their 

position, Defendants filed an affidavit with a list of entities 

with which David/Randall had existing business relationships

prior to April 2006 (see Ex. C to Defs.’ Opp’n), and then

appended screen shots of different entities’ online publication 

of their respective fax numbers. (See Ex. D to Defs.’ Opp’n.) 

Defendants’ position therefore fails, because Defendants have 

not shown any overlap between the class members with which they 

profess to have had established business relationships and those 

which posted their facsimile numbers online. (Compare Ex. C to 

Defs.’ Opp’n (setting forth David/Randall’s list of existing 

business relationship), with Ex. D to Defs.’ Opp’n (appending 

internet print outs for entities not included in David/Randall’s

list).)

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Nor do the cases relied upon by Defendants compel any 

different result. (See Defs.’ Opp’n at 24.) To the contrary, 

Defendants merely recapitulate cases specifically considered, 

and rejected, by the Court in connection with class 

certification. See City Select Auto Sales, Inc., 296 F.R.D. at 

315-16. Indeed, the Court’s prior decision on class 

certification specifically found Landsman & Funk, P.C. v. Lorman 

Bus. Ctr., Inc., No. 08–481, 2009 WL 602019 (W.D. Wis. Mar. 9, 

2009) and Practice Mgmt. Support Servs., Inc. v. Appeal 

Solutions, Inc., No. 09–1937, 2010 WL 748170 (N.D. Ill. Mar. 1, 

2010), inapposite because the plaintiffs in both actions

consented to receive facsimile transmissions by directly

providing relevant contact information to the defendants.

In Landsman, for example, the plaintiff’s president 

specifically submitted a seminar enrollment form that provided 

plaintiff’s fax number as a method of contact. 2009 WL 602019, 

at *2. Indeed, the form itself specifically advised that,

“PROVIDING YOUR FAX NUMBER CONSTITUTES AN EXPRESS INVITATION TO 

SEND YOU FAX ADVERTISEMENTS ABOUT FUTURE LORMAN SEMINARS.” Id.

at *2. As a result, the Landsman court found that the form

facially constituted plaintiff’s “express permission” to receive

fax advertisements. Id. at *1. Similarly, in Practice Mgmt. 

Support Servs., the court granted summary judgment in

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defendants’ favor, because the plaintiff’s president completed a

contact form on the defendants’ website, and specifically 

provided a fax number for purposes of obtaining information 

concerning the defendants’ products. 2010 WL 748170, at *3. 

The Practice Mgmt. Support Servs. court, in turn, similarly

concluded that the plaintiff’s completion of a contact form

constitutes consent. Id.

Critically, however, neither of these cases support 

Defendants’ position that the publication of a fax number on a 

website establishes, without more, consent to receive fax 

advertisements. Nor does the record demonstrate any similar 

quantum of direct contact between the class members and 

David/Randall. 

Moreover, even if the Court found that Defendants’ 

submission raises a genuine issue of fact as to whether any 

class members consented to the advertisement of David/Randall’s 

services, or had an existing business relationship with 

David/Randall, summary judgment on this issue would still be 

warranted because the record contains no genuine dispute that 

the advertisements failed to contain a statutorily-compliant 

opt-out notice. See, e.g., See Holtzman v. Turza, 728 F.3d 682 

(7th Cir. 2013) (“Because [the defendant] omitted [the required]

opt-out notices, it does not matter which recipients consented 

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or had an established business relation with [the defendant].”); 

see also 47 U.S.C. §§ 227(b)(2)(D), 227(b)(1)(C). Critically, 

in addition to the requirements stated above, application of the 

statutory exception requires that the advertisement contain an 

opt-out statement enabling the recipient to easily remove itself

from any future unsolicited advertisements. See 47 U.S.C. § 

227(b)(1)(C)(iii). In particular, the advertisement must 

clearly and conspicuously notify a recipient that it may opt out 

of receiving any future unsolicited advertisements, must state 

that the sender’s failure to comply with a request for removal

within 30 days violates applicable law, and must contain a 

“cost-free mechanism,” including a domestic phone number and fax 

machine number, for the recipient to transmit its removal 

request. 42 U.S.C. § 227(b)(2)(D)(i)-(v); 47 C.F.R. § 

64.1200(a)(4). 

The disputed facsimile advertisements in this instance 

contain no statement that the law obligates the sender to comply 

with any removal requests within a reasonable time, nor do the 

advertisements provide a toll-free domestic facsimile number for 

purposes of submitting such requests. (See, e.g., Pl.’s SMF at 

¶ 74.)10 Rather, the advertisements deceptively claim an 

10 As stated above, Defendants do not genuinely dispute the 

contents of the facsimile advertisements, nor do Defendants 

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“exempt[ion] from most faxing regulations” and provide only a 

domestic contact telephone number, but no alternative fax 

number. (Id.) In addition, and perhaps most significantly, the 

notice does not clearly and conspicuously advise the recipient 

of its legal right not to receive such unsolicited faces, only 

noting instead that recipients may call the “‘Remove’ Hotline” 

in order to “STOP receiving faxes.” (Id. (emphasis in 

original).) The opt-out notices therefore suffer from fatal 

defects, and preclude Defendants from relying upon the statutory 

exception. See Paldo Sign & Display Co. v. Wagener Equities, 

Inc., ___ F. Supp. 2d ____, No. 09-7299, 2014 WL 4376216, at *7 

(N.D. Ill. Sept. 4, 2014) (finding, in a B2B case, nearlyidentical opt-out notices defective, and granting summary 

dispute that the advertisements appended to Plaintiff’s 

submissions accurately reflect the advertisement in the form 

approved by David/Randall. (See, e.g., Defs.’ SMF at ¶ 74.) 

Indeed, Defendants’ own documents reflect that they received the 

identical advertisement, on numerous occasions, in connection 

with recipients’ complaints concerning the unsolicited 

transmissions. (See, e.g., Exs. 17, 27 to Clemmer Dep.) The 

Court therefore rejects Defendants’ suggestion that “only a 

jury” can determine the “authenticity” of the fax advertisements 

at issue in this litigation, particularly because Defendants 

have proffered no evidence or expert testimony to infer that the 

identified faxes constitute something other than that purported 

by Plaintiff. (Defs.’ Opp’n at 30-31). In addition, Defendants’ 

speculation of possible “manufactured evidence” is unaccompanied 

by even an arguably factual basis, and is therefore insufficient 

to defeat summary judgment. (Id.)

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judgment “as to whether the recipients consented to receive”

faxes); Van Sweden Jewelers, Inc. v. 101 VT, Inc., No. 10-253, 

2012 WL 4074620, at * (W.D. Mich. June 21, 2012) (rejecting 

similar arguments in another B2B case). 

For all of these reasons, the Court finds the Class

entitled to summary judgment on the TCPA issue of whether class 

members consented to receive the disputed faxes.

3. Defendants Constitute “Senders” under the TCPA

The TCPA prescribes two parallel, and often blended, 

theories of “sender” liability relevant to this litigation: the 

first applies to “the person or entity” on “whose behalf” a 

third party transmits an unsolicited facsimile advertisement; 

the other applies to the person or entity “whose goods or 

services are advertised or promoted in the unsolicited 

advertisement.” 47 C.F.R. § 64.1200(f)(10); see also In Re 

Rules and Regulations Implementing the Tel. Consumer Prot. Act 

of 1991, 10 F.C.C.R. 12391, 12407–08 (1995) (clarifying that 

“the entity or entities on whose behalf facsimiles are 

transmitted are ultimately liable for compliance with the rule 

banning unsolicited facsimile advertisements”). In that regard, 

the TCPA, by its own terms, “‘creates a form of vicarious 

liability making an entity liable when a third party sends 

unsolicited communications on its behalf in violation of the 

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Act.’” Brodsky, 2014 WL 2780089, at *6 (quoting Bridgeview 

Health Care Ctr. v. Clark, No. 09-C-5601, 2013 WL 1154206, at *4 

(N.D. Ill. Mar. 19, 2013)). Moreover, defendants cannot 

exculpate themselves from “‘liability simply by hiring an 

independent contractor’” for the purposes of transmitting 

“‘unsolicited facsimiles on their behalf.’”  ̈Brodsky, 2014 WL 

2780089, at *6 (citations omitted). Rather, “a person whose 

services are advertised in an unsolicited fax transmission, and 

on whose behalf the fax is transmitted, may be held [strictly] 

liable under the TCPA’s ban on the sending of faxes,” despite 

not physically transmitting the fax.11 Palm Beach Gold Ctr.-

Boca, Inc. v. Sarris, 771 F.3d 1274, 1284 (11th Cir. 2014).

11 In this Court’s decision denying Defendants’ motion for 

summary judgment, the Court rejected Defendants’ assertion that 

Defendants could not be held vicariously liable under the TCPA 

based upon the fact that B2B, rather than Defendants, 

indisputably transmitted the facsimile advertisements. See City 

Select Auto Sales, Inc., 2014 WL 4755487, at *6-*7. In so 

finding, the Court adopted the reasoning of an amicus letter

from the FCC filed in the Palm Beach Golf Ctr.-Boca, Inc. v. 

Sarris action, in which “the FCC emphasized that the junk-fax 

provisions of the TCPA ‘clearly allow[] a plaintiff to recover 

damages [under a theory of direct liability] from a defendant 

who [transmitted] no facsimile to the plaintiff, but whose 

independent contractor did,’ provided that ‘the transmitted fax 

constitutes an unsolicited facsimile advertisement promoting the

defendant’s goods or services’ in accordance with the ‘binding 

regulatory definition’ of ‘sender’ set forth in 47 C.F.R. § 

64.1200(f)(1).” Id. (citation omitted). Since the Court’s 

decision, the Court of Appeals for the Eleventh Circuit has 

similarly adopted the FCC’s reasoning in defining “sender” for 

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Here, the Court previously concluded that “the disputed 

facsimiles solely concern David Randall’s roofing services, and 

nowhere advertise the goods, services, or products of any other 

individual or entity” and that “the record contain[ed] no 

dispute” that “B2B transmitted [the] advertisements on behalf of 

Defendants.” City Select Auto Sales, Inc., 2014 WL 4755487, at 

*7 (citing 47 C.F.R. § 64.1200(f)(10)). Indeed, the Court found 

that “Defendants [specifically] concede[d] such facts.” Id.

(citing Defs.’ SMF at ¶ 5 (“‘B2B successfully sent 44,832 faxes 

for Defendants to 29,113 unique fax numbers. . . . the junk fax 

was sent ‘on behalf of’ [] Defendants’”) (emphasis in 

original).) In the present submissions, Defendants do not 

dispute these findings, nor point to any affidavits or other 

documents that suggest a different conclusion. To the contrary, 

Defendants state, as a “fact[] of record,” that “David Randall 

agreed to allow [B2B] to develop and conduct a fax advertising 

campaign on its behalf.” (Defs.’ Opp’n at 27-28.) Therefore, 

the Court concludes, as a matter of law, that Defendants 

constitute senders of the disputed faxes under the TCPA.

purposes of the TCPA. See Palm Beach Gold Ctr.-Boca, Inc., 771 

F.3d at 1284.

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4. Issues of Fact Preclude Summary Judgment with 

respect to the Claim of Individual Liability 

against Mr. Miley

As the Court previously noted, “numerous district courts 

have concluded that individuals acting on behalf of a 

corporation may be held personally liable for violations of the 

TCPA where they ‘had direct, personal participation in or 

personally authorized the conduct found to have violated the 

statute.” City Select Auto Sales, Inc., 2014 WL 4755487, at *9 

(quoting Connor v. Lifewatch, Inc., No. 13-3507, 2014 WL 

4198883, at *5 (D.S.C. Aug. 20, 2014) (collecting cases)).

Here, Defendants argue that summary judgment must be denied 

with respect to the individual liability claim against Mr. 

Miley, because the Court’s Opinion denying Defendants’ motion 

for summary judgment referenced “factual disputes” concerning 

Mr. Miley’s personal involvement in the junk faxes that form the 

predicate of this litigation. (Defs.’ Opp’n at 16-17.) 

In so arguing, however, Defendants ignore the overall 

context of the Court’s prior determination, and ignore the fact 

that the Court’s discussion only served to reject Defendants’ 

position that the record failed “to demonstrate Miley’s 

‘personal involvement in the commission of any tort or the 

violation of any statute.’” See City Select Auto Sales, Inc., 

2014 WL 4755487, at *9 (citation omitted). Therefore, the Court 

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rejects Defendants’ position that the Court’s prior Opinion 

constitutes the “law of the case” on the individual liability

claim. (Defs.’ Opp’n at 16-17.) Nevertheless, the Court again 

finds that factual disputes preclude the entry of judgment, as a 

matter of law, on the issue of Mr. Miley’s individual liability 

under the TCPA.

At the outset, the Court notes that the factual record 

contains strong references to Mr. Miley’s involvement in the 

subject advertisements. Mr. Miley served as David/Randall’s

President, Shareholder, Officer and Director. (See Pl.’s SMF at 

¶ 2; Defs.’ SMF at ¶ 2 (“Admitted”).) Moreover, Defendants 

admitted that Mr. Miley led David/Randall’s “marketing and 

advertising” during the relevant period, and admitted that Mr. 

Miley instructed Ms. Clemmer, at least initially, to contact B2B 

concerning its fax advertising services. (See Ex. B to Defs.’

Opp’n.) Ms. Clemmer’s testimony, in turn, consistently reflects

that Mr. Miley “brought” B2B’s solicitation to her attention and 

directed her to contact B2B on his behalf in order to discuss a 

potential fax campaign. (Clemmer Dep. at 9:22-16:1, 28:5-8, 

43:20-23.) Ms. Clemmer, in particular, testified that Mr. Miley 

acted as “the ultimate decision-maker in approving the” ads’ 

forms, “determined the number of faxes” to be disseminated, the 

time within which to transmit such faxes. (Id. at 15:10-16, 

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20:4-21:8, 28:5-8, 43:20-23, 56:24-57:7, 61:5-9, 74:5-9.) 

Moreover, it is undisputed that Ms. Clemmer lacked the authority 

to enter into contracts or to authorize any payments on behalf 

of David/Randall. (See Pl.’s SMF at ¶ 3-9; Defs.’ SMF at ¶ 3-9; 

Clemmer Dep. at 74:1-13.) 

Nevertheless, the Court cannot ignore that Mr. Miley did 

not directly correspond with B2B, nor does Ms. Klemmer 

specifically disclose Mr. Miley’s involvement in any of her 

correspondence with B2B. Moreover, though Mr. Miley testified 

that, as David/Randall’s President, he authorized payment of 

marketing-related expenses, the undisputed record does not 

reflect that Mr. Miley personally signed any of the B2B payments

or that he directly authorized the B2B payments.12 Therefore, 

even if the Court again concluded that, “Miley’s deposition 

testimony contains little more than ‘broad memory failures and 

general denials’ concerning his involvement in the dissemination 

12 The Court rejects Plaintiff’s assertion that it is undisputed 

that Mr. Miley directly participated in and authorized at least 

the “first fax blast campaign related to 7,652 successful fax 

transmissions.” (Pl.’s Reply at 9.) Indeed, despite 

Plaintiff’s assertion, Mr. Miley made no such admission. 

Rather, Mr. Miley specifically stated that he did not “recall 

approving it,” but recognized that at least one document 

reflected that he “did.” (Miley Dep. at 34:16-25:3.) Given 

this testimony, issues of fact preclude the entry of summary 

judgment against Mr. Miley, even as to only the first fax 

campaign.

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of the facsimile transmissions” City Select Auto Sales, Inc., 

2014 WL 4755487, at *9 (citation omitted), the Court cannot 

ignore Mr. Miley’s absence from the documentary evidence relied 

upon by Plaintiff, namely, Ms. Clemmer’s correspondence with B2B 

and her remittance of payments for B2B’s services. Nor can the 

Court entirely discredit Mr. Miley’s deposition testimony, 

particularly given his specific denial of knowledge and 

responsibility for the subject facsimile advertisements. (See, 

e.g., id. at 35:15-16 (“I don’t recall approving [the ad], but 

this says I did.”), 37:11-12 (“I have – let me just say this 

again: I don’t recall any part of [the fax advertising].”), 

38:13-23 (“I don’t recall being part of [the fax advertising 

campaign].”), 52:22-23 (“I have no knowledge of the faxes at 

all, of the program or whatever it is.”).) His specific denials 

of knowledge of these fax programs is admissible evidence, and 

the Court cannot weigh conflicting evidence in a summary 

judgment motion. 

For all of these reasons, the Court finds that factual 

disputes preclude the entry of judgment with respect to the

individual liability claim against Mr. Miley. See Sandusky 

Wellness Ctr., LLC v. Wagner Wellness, Inc., No. 12-2257, 2014 

WL 1333472, at *3 (N.D. Ohio Mar. 28, 2014) (finding disputed 

facts precluded the entry of summary judgment with respect to 

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the plaintiff’s claim of personal liability against defendant’s 

officer for any violations of the TCPA); Jackson Five Star 

Catering, Inc. v. Beason, No. 10-10010, 2013 WL 5966340, at *4 

(E.D. Mich. Nov. 8, 2013) (granting the plaintiff’s motion for 

summary judgment where the record contained no dispute that the 

individual corporate officer participated in the payment of and 

authorization for the fax ads).

5. The Record Demonstrates the Class’s Entitlement 

to an Award of Statutory Damages in the Amount of 

$22,405,000

Having concluded that no issues of fact preclude the entry 

of summary judgment under the TCPA in favor of the Class, the 

Court turns to the parties’ dispute concerning the calculation 

of statutory damages. Plaintiff submits that the 

“uncontroverted record evidence,” namely, the fax records 

obtained from the B2B hard drive and the expert testimony of 

Plaintiff’s computer forensic expert, Neil L. Biggerstaff, 

reflect that “B2B successfully sent Defendants’ advertisements 

44,832 times to 29,113 unique targets.” (Pl.’s Reply at 5 

(citations omitted); see also Ex. G to Pl.’s Br. (concluding, 

based upon digital data provided by counsel for Plaintiff, that 

B2B’s hard drive, shows “that a total of 44,832 successful 

transmissions of a 1-page fax were successfully sent and 

received by 29,113 unique fax numbers”).) Therefore, after 

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excluding the 21 requests for exclusion, and the one class 

member “who did not receive notice,” Plaintiff claims that 

“there are 44,810 violations at issue in [this] motion,” and 

requests an award of statutory damages in the amount of 

$22,405,000 (or, 44,810 multiplied by $500).13 (Pl.’s Br. at 

24.)

Defendants, however, oppose the assessment of damages on 

summary judgment on two grounds. First, Defendants argue that 

factual disputes concerning Mr. Biggerstaff’s report preclude 

the entry of summary judgment, because “[n]ot a single piece of 

evidence connects [the] ‘integral’ [B2B] hard drive to the 

digital data” upon which Mr. Biggerstaff based his calculation 

of the disputed transmissions. (Defs.’ Opp’n at 21.) In that 

regard, Defendants claim that issues regarding the “origin, 

authenticity, integrity, and chain of custody” plague the data

provided to Mr. Biggerstaff, and seemingly speculate, without 

support, that counsel for Plaintiff potentially manipulated the 

digital data prior to providing it to Mr. Biggerstaff. (Defs.’ 

Opp’n at 20-21 (“Plaintiffs’ counsel has notably never offered 

13 Under the TCPA, each facsimile transmission constitutes an 

independent violation. See 47 U.S.C. § 227. In calculating 

damages, the Court may award the greater of the party’s “actual 

monetary loss” from the TCPA violation, or “$500 in damages for 

each” violation. 47 U.S.C. § 227(b)(3)(A)-(C)

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any affidavit whatsoever from [counsel for Plaintiff] regarding 

the materials [counsel] provided to Mr. Biggerstaff”).) Given 

these “disputed facts,” Defendants argue that only a jury can 

determine the weight and evidentiary value of the expert 

evidence.14 (Id. at 22.) Second, Defendants insist that 

“summary judgment cannot lie,” because only a jury may determine 

the amount of damages to be assessed against third-party default 

defendants pursuant to “Defendants’ Third Party Liability 

Judgment.” (Defs.’ Opp’n at 26-27.) The Court, however, finds

both positions without merit, and will address each in turn.

a. Biggerstaff’s Reports and the Underlying B2B 

Records Constitute Admissible Evidence for 

Purposes of Summary Judgment

At the outset, the Court notes that, despite their dispute 

of the reliability of Mr. Biggerstaff’s expert report, 

Defendants have not moved to exclude Mr. Biggerstaff’s report 

under Federal Rule of Evidence 702 or otherwise addressed the 

relevant the applicable inquiry under Daubert v. Merrell Dow 

Pharmas., Inc., 509 U.S. 579 (1993). (See generally Defs.’ 

14 Defendant similarly argues that only the jury may determine an 

award of treble damages, because Defendants “vehemently dispute” 

that Defendants acted “knowingly and willfully.” (Defs.’ Opp’n 

at 25-26.) However, because Plaintiff has only requested an 

award of statutory damages (see Pl.’s Br. at 3-4), rather than 

treble damages, the Court need not address Defendants’ position. 

(See Defs.’ Opp’n at 25-26.)

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Opp’n at 19-22.) Nor do Defendants challenge Mr. Biggerstaff’s 

qualifications, the reliability of the methodology he used to 

extrapolate the number of transmissions from the digital data, 

or the fact that he recovered David/Randall communications in 

the B2B data files.15 Rather, Defendants only challenge the 

reliability of the underlying data Mr. Biggerstaff received from 

counsel for Plaintiff, based upon their assertion that Mr. 

Biggerstaff only reviewed a digital reimaging of the B2B

records, rather than the underlying hard drive. (See generally

Defs.’ Opp’n at 19-22.)

In so arguing, however, Defendants ignore and 

mischaracterize the nature of the B2B information actually 

relied upon Mr. Biggerstaff.16 Critically, in asserting that

15 For these reasons, the Court asked the parties on the oral 

argument record on February 25, 2015, whether a hearing under 

Federal Rule of Evidence 104 should be conducted prior to 

disposing of the pending motion. However, both parties indicated 

that no hearing was necessary. Counsel for Defendants stated 

that conducting a Rule 104 hearing at this stage of the 

proceedings would constitute “untoward advocacy” in favor of the 

Class. For the reasons set forth herein, the Court will not 

hold a Rule 104 hearing, because the record amply supports the 

admissibility of Mr. Biggerstaff’s expert reports and 

declarations.

16 In assessing the number of transmissions in this instance, Mr. 

Biggerstaff submitted an expert report dated June 22, 2009, 

declarations dated March 29, 2011, March 22, 2012, and June 19, 

2014, a configuration and source course analysis dated December 

1, 2010, and a data integrity analysis dated December 1, 2010. 

(See, e.g., Exs. G, H, I, N, O, and P to Pl.’s Br.) In that 

regard, the Court agrees with counsel for Plaintiff that the 

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“[n]ot a single piece of evidence connects [the] ‘integral’ 

[B2B] hard drive to the digital data” relied upon by Mr. 

Biggerstaff (Defs.’ Opp’n at 21), Defendants ignore the fact 

that Mr. Biggerstaff did indeed review B2B’s “80GB hard drive”

(Exs. N, O, P to Pl.’s Br. (all noting Mr. Biggerstaff’s review 

of the “hard drive” and attaching photographs of the visual 

media), in addition to examining the contents of two separate 

DVD-ROMs. (Ex. G to Pl.’s Br. (noting that Mr. Biggerstaff 

reviewed the “Contents of a DVD-ROM labeled ‘FAXING (1,2,3) 

060715’” and “47 U.S.C. § 227”).) Indeed, Mr. Biggerstaff

certified that his review of the “contents and metadata” of the

B2B computer records contained on the hard drive and the DVDROMs included an examination of:

a. [The] [o]perating system, configurations, and support 

files for a Slackware Linux server utilizing the HylaFAX 

faxing platform and MySQL databases;

b. Source code to the HylaFAX faxing platform;

c. Logs and other files automatically created by the system;

d. Hundreds of “verification faxes” where B2B included its 

own fax number in the list of fax destinations for a 

client fax broadcast, so as to verify the contents of the 

fax image and the proper processing of broadcasting jobs;

e. Internal correspondence regarding fax broadcasting 

activity and other business operations (such as 

scheduling of fax jobs, determining “counts” for client 

faxes, processing payments, instructions for dealing with 

vendors, and rollout of changes to fax “opt-out” 

notices);

admissibility of Mr. Biggerstaff’s analyses must be adjudged 

based upon the totalilty of Mr. Biggerstaff’s submissions.

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f. Internal data such as customer lists, scripts, internal 

telephone assignments/routing details, databases, 

hardware/IP inventories;

g. External correspondence with customers regarding matters 

such as inquiries, new customer signup sheets, 

advertisement design, fax broadcasting jobs, payment 

instructions, voice mails, and checks; [and]

h. External correspondence with outside vendors, such as 

with phone companies regarding telephone service.

(Ex. P to Pl.’s Br.) 

Defendants further ignore the fact that, despite Mr. 

Biggerstaff’s exhaustive review, he reported that the B2B data 

revealed “no evidence of any attempts at alteration or 

manipulation of the B2B records after the fact, or any evidence 

of inconsistent metadata.” (Id. at ¶ 9.) Rather, he found “the 

B2B records consistent with being contemporaneous records of 

day-to-day business operations kept by B2B and records 

automatically and contemporaneous[ly] created by the B2B 

computer system,” particularly given the records’ consistency

with “extrinsic data” retained by third parties, including “call 

detail records and copies of fax transmissions sent by B2B and 

received by others.” (Id. at ¶¶ 9, 11, 13.) Mr. Biggerstaff

therefore certified that, “to a very high degree of certainty,” 

the B2B hard drive contains “authentic,” “contemporaneously 

created,” “and accurate records of B2B’s business operations.”

(Id. at ¶ 12.) And, that the data identified, in relevant part, 

“44,832 successful and error-free transmissions of a [facsimile 

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advertisement] to 29, 113 unique fax numbers.” (Ex. H to Pl.’s 

Br.) 

Despite the fact that Defendants’ own forensic experts 

examined the hard drive, Defendants have not proffered any

evidence, expert or otherwise, to question Mr. Biggerstaff’s 

evaluation or the integrity of the hard drive data. (See Ex. C 

to Defs.’ Opp’n to Pl.’s Mot. for Class Certification 

(discussing the January 17, 2011 examination of the B2B hard 

drive by Defendants’ “forensic experts”).) Nor have Defendants

challenged the consistency between Mr. Biggerstaff’s calculation 

of the number of transmissions at issue in the pending motion, 

44,810, and the number of faxes collectively requested by Ms. 

Clemmer’s correspondence. (See, e.g., Ex. 14 to Clemmer Dep. 

(requesting a campaign of 12,000 faxes); Ex. 15 to Clemmer Dep. 

(requesting, on another occasion, a campaign of 12,000 faxes); 

Ex. 19 to Clemmer Dep. (requesting, on another occasion, a 

campaign of 18,000 faxes).) Rather, Defendants rely upon the 

“evidentiary deficiencies and chain-of-custody issues” 

purportedly identified by the Court in its certification 

decision. (Defs.’ Opp’n at 20.) 

However, the Court’s certification decision found 

Defendants’ challenges to the hard drive’s admissibility 

insufficiently weighty to defeat Plaintiff’s showing of probable

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admissibility.17 City Select Auto Sales, Inc., 296 F.R.D. at 

317. In connection with the pending motion, these prior 

conclusions remain unchanged, particularly given Defendants’

failure to cite record evidence demonstrating a genuine dispute 

as to the reliability of the hard drive data, Orsatti v. N.J. 

State Police, 71 F.3d 480, 484 (3d Cir. 1995), and the fact that 

the Court need only find the evidence potentially admissible at 

trial. See Hurd v. Williams, 755 F.2d 306, 308 (3d Cir. 1985). 

Given the submissions, Mr. Biggerstaff’s reports easily meets 

this standard, despite Defendants’ unsupported speculation. See

Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010)

(“speculation and conjecture may not defeat summary judgment”).

The Court further finds sufficient evidence in the record 

to demonstrate the authenticity of the B2B records. Critically, 

in order to be considered as evidence for purposes of summary 

judgment, documents must be properly authenticated in accordance 

with Federal Rule of Evidence 901(a). Rule 901(a) does not, 

however, “erect a particularly high hurdle,” Thanongisnh v. Bd. 

17 Moreover, the Court specifically stated that it would not find 

the hard drive inadmissible, without an evidentiary hearing, 

particularly because various individuals could be called “to 

address potential evidentiary deficiencies.” City Select Auto 

Sales, Inc., 296 F.R.D. at 317. Defendants, however, have 

requested no such hearing, and indeed rejected the need for such 

a hearing on the oral argument record on February 25, 2015.

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of Educ., 462 F.3d 762, 779 (7th Cir. 2006), and Plaintiff need 

only produce “evidence sufficient to support a finding that the 

matter in question” constitutes “what the proponent claims.” 

FED. R. EVID. 901(a).

Here, Ms. Abraham’s affidavit states that, she produced (or 

caused to be produced) “an original computer hard drive” marked 

S/N: WCAHL6653150 and “two DVD Rom disks,” all of which 

contained “B2B’s electronically stored information and computer 

generated records.” (Abraham Aff. at ¶ 4.) In addition, Ms. 

Abraham certified that B2B “contemporaneously” stored its 

electronic date, and that “[a]ll B2B data remained in [her] 

personal residence, untouched” and unaltered since its 

creation.”18 (Id.) Mr. Biggerstaff, in turn, confirmed that the 

18 Nor does the Court find that Ms. Abraham’s declaration must be 

rejected because it purportedly contradicts claims she “made in 

other declarations and sworn statements” in connection with 

other litigation. (See, Defs.’ SMF at ¶ 10.) Notably, 

Defendants do not contend the alleged contradictions necessarily 

render the affidavit a “‘sham,’” or dispute that contradictions 

alone fail to warrant the rejection of a signed affidavit in its 

entirety. See Madden v. A.I. DuPont Hosp. for Children of the 

Nemours Foundation, 264 F.R.D. 209, 221 (E.D. Pa. 2010) (noting 

the Court of Appeals’ “‘flexible approach’” to the “sham 

affidavit” doctrine, and “observing that ‘not all contradictory 

affidavits are necessarily shams’”). Nor do Defendants point, 

with specificity, to any particularly troubling excerpts from 

prior affidavits. Rather, Defendants cryptically refer the 

Court to their prior briefing, and “incorporate[] by reference” 

approximately 50 exhibits, spanning over 1000 pages. This fails

to suffice for purposes of Local Civil Rule 56.1(a) which 

requires a party opposing summary judgment to state each 

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electronic data showed no signs of manipulation or alteration, 

nor any other cause to question its integrity. (Ex. P. to Pl.’s 

Br.) Indeed, Mr. Biggerstaff found the contents consistent with 

Ms. Abraham’s declaration, with the various documents exchanged 

by the parties in this litigation, and with contemporaneously 

archived data retained by third parties. (See, e.g., Exs. G, P 

to Pl.’s Br.)

Therefore, the Court finds that the record sufficiently 

supports the B2B hard drive’s authenticity, and that the B2B 

hard drive meets the admissibility standard for purposes of 

summary judgment, and as a basis for Biggerstaff’s expert 

opinion testimony.

In so concluding, the Court follows the weight of authority 

that has already found Mr. Biggerstaff’s analysis admissible and 

sufficient to support the entry of summary judgment in favor of

the Class. See, e.g., Paldo Sign & Display Co., ___ F. Supp. 2d 

____, No. 09-7299, 2014 WL 4376216 (granting summary judgment 

material fact in dispute and “cit[e] to the affidavits and other 

documents submitted in connection with the motion; .... In 

addition, the opponent may also furnish a supplemental statement 

of disputed material facts, in separately numbered paragraphs 

citing to the affidavits and other documents submitted in 

connection with the motion, if necessary to substantiate the 

factual basis for opposition.” It is not the duty of this Court 

to sift through a thousand pages of documents to see whether 

some might contain material contradictions to the statements in 

the Abraham and Biggerstaff declarations.

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based upon Mr. Biggerstaff’s extrapolated analysis); Am. Cooper 

& Brass, Inc. v. Lake City Indus. Prods., Inc., No. 09-1162, 

2013 WL 3654550 (W.D. Mich. July 12, 2013), aff’d, 757 F.3d 540 

(6th Cir. 2014) (finding Mr. Biggerstaff’s analysis reliable for 

purposes of summary judgment); Jackson Five Star Catering, Inc. 

v. Beason, No. 10-10010, 2013 WL 5966340 (E.D. Mich. Nov. 8, 

2013) (same). Therefore, the Court turns to Defendants’ 

position concerning the third-party default defendants.

b. Any Outstanding Issue Concerning the ThirdParty Default Defendants Does Not Preclude the 

Entry of Summary Judgment in Favor of the Class

The Court, however, need not belabor Defendants’ position 

concerning an assessment of damages as against the third-party 

defendants, because such an issue has no relevance to whether 

the undisputed record evidence entitles the Class to entry of 

judgment against David/Randall and/or Mr. Miley. Indeed, 

Plaintiff has asserted no direct claims against the third-party

defendants, Caroline and Joel Abraham. To the contrary, 

Defendants filed a Third-Party Complaint, seeking, in primary 

part, to hold the Abrahams jointly and severally liable “for the 

exact amount of any judgment” that may be entered against 

Defendants in this action. (Third-Party Complaint at ¶ 18.) 

Following the third-party defendants failure to respond, the 

Court then entered default against the Abrahams on December 17, 

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2012 as to the Third-Party Complaint. [Docket Item 53.] 

Consequently, any assessment of the judgment to be entered 

against the Abrahams and in favor of Defendants/Third-Party 

Plaintiffs for contribution or indemnification would necessarily 

follow a determination of the Class’s entitlement to judgment 

against Defendants. Moreover, despite Defendants’ assertion 

that the Court “entered Judgment as to liability,” no default 

judgment has ever been entered,19 and the monetary damages 

ultimately assessed in a default judgment, if any, do not defeat 

summary judgment in favor of the Class.

In addition, the Court finds no support for Defendants’

position that the third-party defendants’ failure to respond to 

Defendants’ Third-Party Complaint, renders the allegations of 

the Third-Party Complaint “facts of record” sufficient to create 

“a genuine issue of material fact with regard to contrary claims 

by the Plaintiffs in their Complaint.” (Defs.’ Opp’n at 27-30.) 

To the contrary, because the Third-Party Complaint asserted no

claims against Plaintiff or the Class, Plaintiff had no 

19 Under Federal Rule of Civil Procedure 55 obtaining a default 

judgment requires a two-step process. See FED. R. CIV. P. 55. 

First, when a party fails to plead or otherwise defend, the 

clerk must enter that party’s default. See FED. R. CIV. P. 55(a).

Following default, the non-defaulting party may then move for a 

default judgment. See FED. R. CIV. P. 55(b). Here, Defendants 

have only completed the first phase, that is, entry of default.

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obligation to “admit or deny” any of the allegations set forth 

in the third-party Complaint. See FED. R. CIV. P. 8(b)(1)(B) 

(providing that, “[i]n responding to a pleading, a party must: 

admit or deny the allegations asserted against it by an opposing 

party.”) (emphasis added). And, Defendants’ mere reference to 

Plaintiff and/or Defendants’ assertion of allegations contrary 

to those set forth by Plaintiff does not alter this conclusion. 

Therefore, the allegations of the Third-Party Complaint cannot 

be deemed admitted as against the Class under Federal Rule of 

Civil Procedure 8(b)(6) for purposes of the pending motion.

c. Determination of Damages and Entry of Judgment

As stated above, the Court finds Mr. Biggerstaff’s report

reliable and trustworthy as to the number of violative facsimile 

transmissions successfully sent in this instance, and consistent

with the number of transmissions directly requested and approved 

by Defendants. 

Therefore, the Court will grant Plaintiff’s motion for 

class-wide summary judgment, and will enter judgment in favor of 

the Class, based upon the sum of the unsolicited transmissions 

multiplied by the amount of statutory damages provided under the 

TCPA. See Siding & Insulation Co. v. Combined Ins. Grp., Ltd., 

Inc., No. 11-1062, 2014 WL 1577465, at *5 (N.D. Ohio Apr. 17, 

2014) (granting Plaintiff’s request for summary judgment in 

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part, and finding Plaintiff entitled to damages in the amount of 

$25,000 for the 50 faxes sent in violation of the TCPA); 

Vandervort v. Balboa Capital Corp., 8 F. Supp. 3d 1200 (C.D. 

Cal. 2014) (approving a TCPA class action settlement of a range 

“of no less than $2.3 million and no more than $3.3 million”); 

Penzer v. Transp. Ins. Co., 545 F.3d 1303, 1305 n.1 (11th Cir.

2008) (describing a TCPA settlement agreement in the amount of 

$12 million judgment, which was calculated by multiplying the 

24,000 unsolicited facsimile advertisements it transmitted by 

$500); Hinman v. M & M Rental Ctr., Inc., 596 F. Supp. 2d 1152 

(N.D. Ill. 2009) (granting plaintiffs’ motion for summary 

judgment in part, and finding the class entitled to statutory 

damages in the amount of $3,862,500, based upon 7,725 

unsolicited advertisements; and, following summary judgment, 

ultimately approving a settlement of $5,817,150); Yuri R. 

Linetsky, Protection of “Innocent Lawbreakers”: Striking the 

Right Balance in the Private Enforcement of the Anti “Junk Fax” 

Provisions of the Telephone Consumer Protection Act, 90 NEB. L.

REV. 70, 93 (2011) (citing the multitude of cases entering 

million dollar-plus judgments in TCPA actions). This Court, 

therefore, finds that the Plaintiff has proved Defendants liable 

for statutory damages in the amount of $22,405,000, and summary 

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judgment will be entered against David/Randall Associates, Inc. 

in that amount.20

VI. CONCLUSION

For all of these reasons, Defendants’ motion for 

decertification will be denied, Plaintiff’s motion for classwide summary judgment will be granted as to David/Randall 

Associates, Inc., and denied as to Raymond Miley, III. 

Therefore, the Court will enter Judgment in favor of the

Plaintiff Class and against Defendant David/Randall Associates, 

Inc. in the amount of $22,405,000. An accompanying Order will 

be entered.

March 27, 2015 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge 

20 Counsel are requested to confer, as discussed at oral argument 

of this motion, whether a judgment in a significantly smaller 

sum would likely provide full statutory recovery to all probable

members of the Class who respond and file claims. For example, 

if the typical “yield” of the notice of a class claims process 

is assumed to be 15%, based on experience, then a judgment fund 

of 15% of $22,405,000, which is $3,360,750, may suffice, subject 

to future adjustment based on claims approved. Counsel are 

invited to discuss the viability of such a mechanism to 

implement this judgment in the class action context.

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