United States District Court, N.D. Ohio, Eastern Division
CARLTON BARTON, JR., Plaintiff.
CREDIT ONE FINANCIAL d/b/a CREDIT ONE BANK, Defendant.
C. NUGENT JUDGE
matter comes before the Court on a Motion for Summary
Judgment filed by Defendant, Credit One Bank ("Credit
One"). (ECF #36). Plaintiff, Carlton Barton, Jr.,
("Mr. Barton"), filed a Response to Defendant's
Motion for Summary Judgment, (ECF #47) and Credit One filed a
Reply in Support of its Motion for Summary Judgment. (ECF
#48). Therefore, the issues are fully briefed and ripe for
reasons set forth herein, Credit One's Motion for Summary
Judgment is GRANTED.
Factual and Procedural Background
Barton filed a lawsuit alleging that Credit One violated the
Telephone Consumer Protection Act, 47 U.S.C. § 227,
et seg. ("TCPA"), when it called his cell
phone after he opened a credit card account with Credit One.
(ECF #1, Ex. A). The parties agree that on May 4, 2016, Mr.
Barton completed an online application requesting a credit
card account with Credit One. The parties also agree that as
part of the application, Mr. Barton provided his cell phone
number as his primary and only contact number, as well as his
home address in Richmond Heights, Ohio. (See ECF #41-1,
¶8, Affidavit of Jeffrey Meek, Vice President of
Portfolio Services at Credit One Bank; ECF #47, p. 4). As a
condition to obtaining the credit card, Mr. Barton agreed to
the terms of the Visa/Mastercard Cardholder Agreement,
Disclosure Statement and Arbitration Agreement
("Cardholder Agreement"), which provides in
pertinent part: "by requesting and receiving, signing or
using your Card, you agree [to the terms of the Cardholder
Agreement]." (See ECF #36, p. 4). The Cardholder
Agreement also provides that:
"[y]ou are providing express written permission
authorizing Credit One Bank or its agents to contact you at
any phone number (including mobile cellular/wireless, or
similar devices) or email address you provide at any time,
for any lawful purpose. The ways in which we may contact you
include live operator, automatic telephone dialing systems
(auto-dialer), prerecorded message, text message or
Barton received his credit card at his home address in
Richmond Heights, Ohio, and activated it via telephone
according to the instructions on the face of the credit card.
(ECF #47, pp. 4-5). Mr. Barton indicates that he
"received documents in the mail" at his residence
sometime after activating the card, which Credit One states
was the Cardholder Agreement. (See ECF #47, p. 5;
ECF #36, p. 4). Mr. Barton admits that he subsequently made
purchases with this credit card. (See ECF #20, Ex. 4,
Plaintiffs Responses to Request for Admissions).
Barton alleges that sometime in July of 2016, Credit One
"embarked on a harassing collection campaign, '* to
inquire about an outstanding balance owed. (ECF #47, p. 5).
Mr. Barton states that "[a]t this time plaintiff revoked
any prior consent he may have given [Credit One] to call him
by telling defendants representative not to call him
anymore." Id. On September 29, 2016, Credit One
received correspondence from Mr. Barton's counsel
revoking Mr. Barton's prior express consent to be
contacted regarding the Credit Card account. (See ECF #41-1,
¶ 12). Credit One placed a cease and desist flag on Mr.
Barton's account and did not contact him after September
29, 2016. (Id. at ¶¶ 14).
One filed its Motion for Summary Judgment, arguing that it
did not violate the TCPA when it contacted Mr. Barton (ECF
#36). Mr. Barton filed a Response Brief, (ECF #47), and
Credit One filed a Reply Brief (ECF #48). This matter is
fully briefed and ready for decision.
Standard of Review
summary judgment standard is well-settled. Summary judgment
is proper where '4the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). In ruling on a motion for summary
judgment, the Court must view the facts contained in the
record and all inferences that can be drawn from those facts
in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);
Nat 7 Satellite Sports, Inc. v. Eliadis,
Inc., 253 F.3d 900, 907 (6th Cir.2001). The Court cannot
weigh the evidence, judge the credibility of witnesses, or
determine the truth of any matter in dispute. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986).
moving party bears the initial burden of demonstrating that
no genuine issue of material fact exists. Celotex Corp.
v. Catrett, 477 U.S.317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). To refute such a showing, the non-moving party
must present some significant, probative evidence indicating
the necessity of a trial for resolving a material factual
dispute. (Id. at 322). A mere scintilla of evidence
is not enough. Anderson, 477 U.S. at 252;
McClain v. Ontario, Ltd, 244 F.3d 797, 800 (6th
Cir.2000). This Court's role is limited to determining
whether the case contains sufficient evidence from which a
jury could reasonably find for the non-moving party.
Anderson, 477 U.S. at 248-49; Nat'l
Satellite Sports, 253 F.3d at 907. If the non-moving
party fails to make a sufficient showing on an essential
element of its case with respect to which it has the burden
of proof, the moving party is entitled to summary judgment.
Celotex, 477 U.S. at 323. If this Court concludes
that a fair-minded jury could not return a verdict in favor
of the non-moving party based on the evidence presented, it
may enter a summary judgment. Anderson, 477 U.S. at
251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339,
1347 (6th Cir. 1994).
party opposing a Rule 56 motion may not simply rest on the
mere allegations or denials contained in the party's
pleadings. Anderson, 477 U.S. at 256. Instead, an
opposing party must affirmatively present competent evidence
sufficient to establish a genuine issue of material fact
necessitating the trial of that issue. (Id.) Merely
alleging that a factual dispute exists cannot defeat a
properly supported motion for summary judgment.
(Id.) A genuine issue for trial is not ...