United States District Court, N.D. Illinois, Eastern Division
For Kevin Sterk, individually and on behalf of all others similarly situated, Plaintiff: Rafey S. Balabanian, LEAD ATTORNEY, Ari Jonathan Scharg, Benjamin Scott Thomassen, David Ira Mindell, Jay Edelson, Edelson LLC, Chicago, IL.
For Path, Inc., a Delaware corporation, Defendant: Patrick M Miller, LEAD ATTORNEY, Colby Anne Kingsbury, Faegre Baker Daniels LLP, Chicago, IL; Amber Lane Abbuhl, Brandee Lee Caswell, PRO HAC VICE, Faegre Baker Daniels, Denver, CO; Eileen M. Hunter, Faegre Baker Daniels Llp, Minneapolis, MN.
Samuel Der-Yeghiayan, United States District Court Judge.
This matter is before the court on Plaintiff Kevin Sterk's (Sterk) partial motion for summary judgment and motion to strike, and on Defendant Path, Inc.'s (Path) motion for summary judgment and motion to strike. For the reasons stated below, Sterk's partial motion for summary judgment is granted and his motion to strike is granted, and Path's motion for summary judgment is denied and its motion to strike is denied.
Sterk contends that Path operates one of the largest social networks in the United States. Sterk claims that through the Short Messaging Service on his mobile phone, he received an unsolicited promotional text message (Text) from Path. Sterk claims that Path has used automated machines to send such unsolicited text messages to consumers nationwide, inconveniencing consumers, and causing such consumers to bear the burden of paying for the text message calls. Sterk includes in his complaint a claim alleging a violation of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227. The court allowed the parties to conduct limited discovery on the issue of whether the Text was transmitted via an automatic telephone dialing system (ATDS) under the TCPA. Sterk now moves for partial summary judgment and moves to strike certain evidence presented by Path. Path moves for summary judgment and moves to strike certain evidence presented by Sterk.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A " genuine issue" of material fact in the context of a motion for summary judgment is not simply a " metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact exists when " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). When there are cross motions for summary judgment, the court should " construe all inferences in favor of the party against whom the motion
under consideration is made." Mote v. Aetna Life Ins. Co., 502 F.3d 601, 606 (7th Cir. 2007)(internal quotations omitted); see also Krieg v. Seybold, 481 F.3d 512, 516 (7th Cir. 2007).
I. Sterk's Motion to Strike
Sterk moves to strike David Strandness' (Strandness) declaration (Strandness Declaration) submitted by Path with its motion for summary judgment. Sterk contends that the statements included in paragraphs 5 and 7 of the Strandness Declaration constitute inadmissible hearsay. In ruling on a motion for summary judgment, " the court may consider any evidence that would be admissible at trial." Harney v. City of Chicago, 702 F.3d 916, 922 (7th Cir. 2012). The evidence produced at the summary judgment stage need not itself be the evidence that would be presented at trial. Id. It need only " be admissible in content." Id. (internal quotations omitted)(quoting Stinnett v. Iron Works Gym/Exec. Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002))(stating that " for example, affidavits are not normally admissible at trial" ). Pursuant to Federal Rule of Civil Procedure 56(c), " [a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or ...