Grome v. USAA Sav. Bank

557 F.Supp.3d 931

Samantha GROME, Plaintiff,

v.USAA SAVINGS BANK, Defendants.

4:19-CV-3080

United States District Court, D. Nebraska.

Signed August 31, 2021

Adam T. Hill, Lohman Law Firm, Jeff Lohman, Pro Hac Vice, Temecula, CA, Carlos C. Alsina-Batista, Colton, CA, for Plaintiff.

Anna S. Forman, Kutak, Rock Law Firm, Omaha, NE, David Krueger, Benesch, Friedlander Law Firm, Cleveland, OH, for Defendants.

MEMORANDUM AND ORDER

John M. Gerrard, United States District Judge

The plaintiff, Samantha Grome, received several collection calls from the defendant, USAA Savings Bank, attempting to collect on alleged debts incurred through the use of a credit card issued by the bank. Filing 1 at 2. Grome sued USAA for violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 (b)(1)(A)(iii), alleging that the bank used an "automatic telephone dialing system" to call her cellphone. Filing 1 at 3.

This matter is before the Court on USAA's motion for summary judgment (filing 52). The bank argues that it did not use an "automatic telephone dialing system" and therefore did not violate the TCPA. See Filing 53. For the reasons set forth below, USAA's motion for summary judgment will be granted.

I. BACKGROUND

On December 30, 2015 USAA approved Grome for a credit card. Filing 53-1 at 1; see filing 53-2. Grome provided the bank with her telephone number as part of the application process. Filing 53-2 at 1. On July 24, 2018, USAA began to call Grome, at the number provided, in an attempt to collect payment for Grome's delinquent credit card account. Filing 53-1 at 2. Grome alleges that on July 31, 2018, she called USAA and requested that they stop calling her. Filing 1 at 3. The calls did not stop and from August 1, 2018 to October 31, 2018, Grome received 224 calls from USAA at the number attached to her account. Filing 60 at 3; see filing 60-1. Grome testified that the calls placed to her number were not random solicitation calls and that the bank was trying to reach her about her account. Filing 53-3 at 5.

To make the calls to Grome, USAA used a dialing system known as Aspect Unified IP (Aspect UIP). Until a specific list of telephone numbers is provided to the Aspect UIP, it cannot initiate calls. So, the Aspect UIP called numbers from lists created by and transferred to the system by a USAA representative. Those lists, called "campaigns," were generated using Aspect Advanced List Management (ALM)—a database containing telephone numbers provided by USAA members—and based on certain criteria, e.g. , whether an account was over-limit, the period of delinquency, and the amount of debt. Filing 53 at 3; filing 60 at 2; see also filing 53-4 at 7. Grome's phone number was included in a campaign dialing list after her account became delinquent. Filing 53 at 4, filing 60 at 2.

The Aspect UIP is a what is known as a predictive dialer—it dials telephone numbers on a campaign list by employing an algorithm to control the speed at which the numbers are called and ensure a live call agent is available when a USAA member answers the phone. Filing 53 at 3-4; filing 60 at 2; see also filing 53-4 at 9-10. Grome retained Randall Snyder, a telecommunications specialist with a bachelor's degree in mathematics, to discuss certain functions the Aspect UIP system has the capacity to perform. Filing 60 at 3; see generally filing 53-4. Snyder reviewed the Aspect UIP software manual and user guide, as well as other documents, to arrive at his opinions but did not inspect USAA's system. See filing 53-4 at 5-6, 14.

According to Snyder the Aspect UIP is a predictive dialer that "has the capacity to store or produce numbers to be called, using a random and sequential number generator, and it is equipment that dials telephone numbers from a stored list of numbers without human intervention." Filing 53-4 at 15. Snyder further opined that campaign lists loaded into the Aspect UIP can be "filtered, sorted, and re-sequenced" according to prescribed rules set by ALM and USAA. Filing 53-4 at 17-18; see filing 53-5 at 13-14. Snyder testified that the Aspect UIP system was not capable, however, of generating telephone numbers from whole cloth. Filing 53-5 at 9, 13.

Snyder also opined that ALM supports a database technology known as Microsoft SQL Server. According to Snyder, Microsoft SQL Server databases, like ALM, require "structured language query" (SQL) to create, manage, and automate database functions. It is the SQL technology, said Snyder, which creates the campaign lists of telephone numbers in ALM. And according to Snyder, random number generation and sequential number generation "are functions inherent within the Microsoft SQL Server database technology used within the Aspect [UIP]." Filing 53-4 at 19-22. But Snyder testified that these "inherent functions" of the Microsoft SQL Server would have to be initiated by a human, and the Aspect UIP "doesn't do it by itself." Filing 53-5 at 14. He testified that "any IT person can log directly into the database outside of the Aspect application ... and type in [the random number or sequential number generation] command ...." Filing 53-6 at 8. But Snyder also testified that he assumes most users of USAA's Aspect UIP would not have the access necessary to do that. Filing 53-6 at 9.

Snyder ultimately opined that the Aspect UIP is equipment which has "the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers," as well as "the capacity to dial stored telephone numbers without human intervention." Filing 53-4 at 23.

USAA hired Jan Kostyun, a telecommunications and IT specialist with a bachelor's degree in mathematics and master's degree in computer science, to evaluate and respond to Snyder's opinions. Filing 53-7 at 1-4. Kostyun generally agrees with Snyder that the Aspect UIP is capable of filtering, sorting and resequencing telephone numbers in a campaign list according to various rules (e.g., zip code). See filing 53-7 at 12-14. But Kostyun contrasts that function of the Aspect UIP to auto dialers like the Voicent Phone List Generator, which "generates a sequential or random list of numbers to be dialed." See filing 53-7 at 15-16. Kostyun agrees with Snyder that the Aspect UIP does not have such a function and cannot create numbers out of whole cloth. See filing 53-7 at 17.

Moreover, Kostyun disagrees that the Microsoft SQL Server gives the Aspect UIP the "inherent" power to be a random or sequential number generator. See filing 53-7 at 17-19. Kostyun explained that the Aspect UIP does not "automatically inherit all of the functionality" of the Microsoft SQL Server. Filing 53-7 at 19. Rather, the Aspect UIP internal software would have to be modified in order to use the random or sequential number generation power of the Microsoft SQL Server commands (which do exist). See filing 53-7 at 20-23. Kostyun emphasized his point by explaining that Microsoft SQL server commands also exist to produce trigonometric values, and the current date according to the Islamic calendar, but that no one could credibly claim the Aspect UIP is "a trigonometry calculator or Islamic calendar or that the software has the capability of acting as them without [those] codes being actually programmed into the software's functionality." Filing 53-7 at 24-25. Kostyun also pointed out that the Aspect UIP Administrator Guide and User Manual (upon which Snyder heavily relied) never references the use of the SQL random or sequence functions or ever discusses the capability to generate random or sequential telephone numbers. Filing 53-7 at 27.

So, Kostyun opined that the Aspect UIP does not have the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers. Filing 53-7 at 26.

II. STANDARD OF REVIEW

Summary judgment shall be granted if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). After the parties have had adequate time for discovery, a movant will be entitled to summary judgement against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Bedford v. Doe , 880 F.3d 993, 996 (8th Cir. 2018). The movant bears the initial responsibility of informing the Court of the basis for its motion, and must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Id. The nonmoving party cannot defeat a summary judgement motion by asserting the existence of some alleged factual dispute between the parties; the party must assert that there is a genuine issue of material fact. Quinn v. St. Louis Cnty. , 653 F.3d 745, 751 (8th Cir. 2011). In order to show that disputed facts are material, the party opposing summary judgment must cite the relative substantive law in identifying facts that might affect the outcome of the suit. Id. The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could reasonably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC , 656 F.3d 782, 791–92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of...