This court reviews summary judgments de novo. Wood v.
.Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary
judgment is appropriate if the pleadings and other evidence on file, viewed
in the light most favorable to the nonmoving party, demonstrate that no
genuine issue of material fact remains in dispute and that the moving
party is entitled to judgment as a matter of law. Id. To withstand
summary judgment, the nonmoving party cannot rely solely on general
allegations and conclusions set forth in the pleadings, but must instead
present specific facts demonstrating the existence of a genuine factual
issue supporting his claims. NRCP 56(e); see also Wood, 121 Nev. at 731,
121 P.3d at 1030-31.
Having reviewed appellant's opening brief and the record on
appeal, we conclude that the district court erred in granting summary
judgment in respondents' favor. In their motion for summary judgment,
respondents argued that they did not violate any of the statutes relied
upon by appellant in his complaint because they did not place the phone
calls at issue to appellant, nor did they control the means or method by
which the contact with appellant was made. Respondents contended that
they had contracted with a third party for marketing, who in turn
subcontracted with a company, named Holiday Tours, that made the
phone calls to appellant. In his opposition to the motion for summary
judgment, however, appellant argued that genuine issues of material fact
remained regarding Healthy Body Imaging Centers' liability for the
alleged TCPA violations.
Appellant specifically argued that a seller can be held liable
for TCPA violations committed by third-party telemarketers based on
principles of agency. Under federal law, a person can sue for damages for
do-not-call violations "by or on behalf of' a company. 47 U.S.C. § 227(c)(5)
(2013). In addition, the Federal Communications Commission has noted
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that the purpose of the Telephone Consumer Protection Act would be
thwarted if sellers were permitted to hide behind the illegal acts of their
authorized telemarketers, who may be located offshore or judgment proof,
but allowed to benefit from the acts of those telemarketers. In re Dish
Network, LLC, 28 FCC Rcd 6574, 6588-89 (2013) (declaratory ruling).
Appellant also contended that the phone calls at issue in his complaint
were made before the date of the marketing contract that respondents
relied on in their summary judgment motion, and thus, genuine issues of
material fact remained regarding whether Holiday Tours in fact made the
calls to appellant and whether Healthy Body Imaging Center may be
directly liable to appellant for the calls under the consumer protection
statutes.
Based on the foregoing, we conclude that appellant adequately
demonstrated that genuine issues of material fact remain regarding
whether respondents are liable• to appellant under the consumer
protection statutes for the phone calls at issue. The district court
therefore erred in entering summary judgment in respondents' favor. See
NRCP 56(e); see also Wood, 121 Nev. at 731, 121 P.3d at 1030-31.
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for further proceedings
consistent with this order.
J.
C
Parraguirresratilen
--1----142
, J. J.
Douglas
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cc: Hon. Rob Bare, District Judge
Paul D.S. Edwards
Healthy Body Imaging Centers
Michael Napoli
Ramon San Nicolas
Eighth District Court Clerk
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