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Hicks v. Houston Baptist University

United States District Court, E.D. North Carolina, Western Division

November 12, 2019

DEANNA HICKS, on behalf of herself and others similarly situated, Plaintiff,
v.
HOUSTON BAPTIST UNIVERSITY, Defendant.

          ORDER

          James E. Gates United States Magistrate Judge.

         This case, arising under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), comes before the court on a motion (D.E. 42) with an incorporated memorandum[1] by plaintiff Deanna Hicks ("plaintiff) seeking an order compelling defendant Houston Baptist University ("defendant") to respond to discovery sought in plaintiffs first set of interrogatories and first requests for production of documents, and compelling defendant's marketing agent, nonparty Educate Online, Inc. ("Education Online")[2] to respond to a deposition subpoena duces tecum seeking similar discovery. Defendant filed a response in opposition (D.E. 43) to the motion supported by a declaration (D.E. 44). In its response, defendant advances arguments on behalf of itself and Educate Online, although the counsel who filed the response did so solely in the name of defendant. No attorney has otherwise entered an appearance on behalf of Educate Online. Plaintiff identifies the discovery requests subject to her motion as: interrogatories nos. 1 -4 and 7- 13; requests for production nos. 2-7, 17-19, 21-23, 25, 27-28, 30-32, 36-37, and 43-44; document requests nos. 2, 4, 5, and 7-20 in the subpoena; and deposition topics nos. 2, and 5-12 in the subpoena. See Def.'s Mem. 5. For the reasons set forth below, the motion will be allowed.

         I. BACKGROUND

         Plaintiff, a former student at Austin Community College ("ACC"), commenced this lawsuit as a result of two unsolicited telephone calls she alleges she received on her cell phone on 13 September and 14 September 2017. Compl. (D.E. 1) ¶¶ 23-24. According to plaintiff, the autodialed calls were made on behalf of defendant and urged plaintiff to contact defendant to learn about its nursing program, notwithstanding the fact that plaintiffs cell phone number was registered on the National Do Not Call Registry, Id. ¶¶ 20, 23. Plaintiff alleges that while enrolled at ACC she signed a document informing her that ACC would not share or sell her personal information. Id. ¶ 22. She contends that defendant placed these unsolicited calls to her without her express written consent in violation of the TCPA. Id. ¶ 19.

         Plaintiff brings this action on behalf of herself and putative class members similarly situated. Id. ¶ 33. Specifically, in her complaint, plaintiff proposes to assert her claims on behalf of the following two classes:

Autodialed No Consent Class: All persons in the United States from four years prior to the filing of this action through the present who (1) Defendant (or a third person acting on behalf of Defendant) called, (2) on the person's cellular telephone, (3) using an autodialer, and (4) for whom Defendant claims it obtained prior express written consent in the same manner as Defendant claims it supposedly obtained prior express written consent to call the Plaintiff.
Do Not Call Registry Class: All persons in the United States who (1) Defendant (or a third person acting on behalf of Defendant) called more than one time on his/her cellular telephone; (2) within any 12-month period (3) where the cellular telephone number had been listed on the National Do Not Call Registry for at least thirty days; (4) for the purpose of selling Defendant's products and services; and (5) for whom Defendant claims it obtained prior express consent in the same manner as Defendant claims it obtained prior express consent to call the Plaintiff.

Id. ¶ 33. Plaintiff asserts two claims: the first for violation of the TCP A on behalf of herself and the autodialed No Consent Class (id. ¶¶ 39-45), and the second under the same statute on behalf of herself and the Do Not Call Registry Class (id. ¶¶ 46-56).

         Defendant denies the material allegations in plaintiffs complaint. See generally Ans. & Am. Aff. Defs. (D.E. 22). Among other defenses, defendant asserts that plaintiff and other purported class members consented to receipt of its telephone calls. See, e.g, . Id. Def.'s 5th Am. Aff. Def. ("Plaintiffs claims are barred, in whole or in part, because she and/or the putative class members provided consent to receive phone calls."), Def.'s 6th Am. Aff. Def. ("The claims asserted by the putative class, or some of them, are barred, in whole or in part, because such class members provided written consent to receive communications from Defendant.").

         On 21 March 2018, plaintiff served on defendant her first set of interrogatories and first requests for production. See Interrogs. (D.E. 42-1 at 8-17); Prod. Reqs. (D.E. 42-1 at 1-7). On 25 May 2018, defendant responded to plaintiffs interrogatories and production requests. See Resps. to Interrogs. (D.E. 42-1 at 51-67); Resps. to Prod. Reqs. (D.E. 42-1 at 23-50). On 27 April 2018, plaintiff served a subpoena on Educate Online, pursuant to Federal Rule of Civil Procedure 30(b)(6), seeking deposition testimony and documents from it. See Subp. (D.E. 42-1 at 18-22). On 16 May 2018, Educate Online served objections and responses to plaintiffs subpoena.[3] See Objs. & Resps. to Subp. (D.E. 42-1 at 69-84).

         The instant motion seeks production from defendant and Educate Online of information and documents relating to persons at schools other than ACC who received any cellular telephone calls from or on behalf of defendant, including information and documents relating to the calls to such persons. Plaintiff has demonstrated that she adequately attempted to resolve the matters at issue on her motion without court intervention through pre-filing conferral with defendant and Educate Online about their objections to producing the information and documents sought in her motion. See Mot. 12; Fed. R. Civ. P, 37(a)(1); Loc. Civ. R. 7.1(c), E.D. N.C.

         II. APPLICABLE LEGAL PRINCIPLES

         The Federal Rules of Civil Procedure enable parties to obtain information by serving requests for discovery on each other, including interrogatories and requests for production of documents. See generally Fed. R. Civ. P. 26-37. Rule 26 provides for a broad scope of discovery:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its ...

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