Lardner v. Diversified Consultants Inc.

17 F.Supp.3d 1215

Angela LARDNER, Plaintiff,

v.DIVERSIFIED CONSULTANTS INC., Defendant.

Case No. 1:13–cv–22751–UU.

United States District Court, S.D. Florida.

Signed April 30, 2014

Filed May 1, 2014

Ordered accordingly. Bret Leon Lusskin, Jr., Bret Lusskin, P.A., Aventura, FL, for Plaintiff.

Ernest Henry Kohlmyer, III, Urban Thier Federer & Chinnery, P.A., Orlando, FL, for Defendant.

ORDER ON SUMMARY JUDGMENT

URSULA UNGARO, District Judge.

THIS CAUSE is before the Court upon Plaintiff's Motion for Partial Summary Judgment, D.E. 18, filed on January 6, 2014, and Defendant's Motion for Summary Judgment, D.E. 30, filed on March 7, 2014. Defendant filed its Response to Plaintiff's Motion, D.E. 24, on February 24, 2014, and Plaintiff filed her Reply, D.E. 29, on March 3, 2014. Plaintiff filed her Response to Defendant's Motion, D.E. 41, on March 19, 2014, and Defendant filed its Reply, D.E. 43, on March 26, 2014. Accordingly, these matters are now ripe for disposition.

Plaintiff states that she received 109 calls from Defendant that played the IVR message, and that she received 132 calls of any kind from Defendant. D.E. 18–2 ¶¶ 10, 11. The documents reflect, and Defendant states, that Plaintiff received 126 calls that were in campaign mode or a manual blend mode, which is a mode where the collector either manually enters a number or uses the campaign mode between at least January 24, 2012, and October 9, 2012. D.E. 17–3; D.E. 17–4; D.E. 17–1 at 21:8–16. The call logs further show that the calls occurred on week days between 8:00 A.M. and 8:00 P.M. D.E. 17–3; D.E. 17–4. Defendant's Vice President of Compliance declares that Plaintiff never communicated substantively with Defendant or informed Defendant to cease communicating with her. D.E. 34 ¶ 10. Plaintiff does not dispute this fact.

LEGAL STANDARD

Summary judgment is authorized only when the moving party meets its burden of demonstrating that “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56. When determining whether the moving party has met this burden, the Court must view the evidence and all factual inferences in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Rojas v. Florida, 285 F.3d 1339, 1341–42 (11th Cir.2002).

The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings; after the moving party has met its burden of proving that no genuine issue of material fact exists, the non-moving party must make a showing sufficient to establish the existence of an essential element of that party's case and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir.1997); Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

If the record presents factual issues, the Court must not decide them; it must deny the motion and proceed to trial. Envntl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981).¹ Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture & Elec. Supply Co. v. Cont'l Ins. Co., 420 F.2d 1211, 1213 (5th Cir.1969). If reasonable minds might differ on the inferences arising from undisputed facts, then the Court should deny summary judgment. Impossible Elec. Techniques, Inc. v. Wackenhut Protective Sys., Inc., 669 F.2d 1026, 1031 (5th Cir.1982); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[T]he dispute about a material fact is ‘genuine,’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”).

Moreover, the party opposing a motion for summary judgment need not respond to it with evidence unless and until the movant has properly supported the motion with sufficient evidence. Adickes, 398 U.S. at 160, 90 S.Ct. 1598. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleadings or are not otherwise in dispute, or else summary judgment will be denied notwithstanding that the non-moving party has introduced no evidence whatsoever. Brunswick Corp. v. Vineberg, 370 F.2d 605, 611–12 (5th Cir.1967). The Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

DISCUSSION

The parties cross moved for summary judgment, arguing that there is no genuine issue of material fact regarding Defendant's liability under the Telephone Consumer Protection Act (“TCPA”), the Fair Debt Collection Practices Act (“FDCPA”), and the Florida Consumer Collection Practices Act (“FCCPA”). The parties raise four issues regarding liability under the TCPA: (1) whether the LiveVox system is an automatic telephone dialing system (“ATDS”); (2) whether Defendant uses an “artificial or prerecorded voice” when it makes debt collection calls; (3) whether Defendant can be held liable where LiveVox is the system that dials the cell phone numbers and connects calls; and (4) whether Plaintiff gave prior express consent to receive Defendant's calls. ² The parties also contest whether Defendant's debt collection practices violate the FDCPA and the FCCPA. The Court finds that summary judgment should be granted for Plaintiff as to her TCPA claim. The Court also finds that summary judgment should be granted for Defendant as to Plaintiff's FDCPA and FCCPA claims.

I. The TCPA

The TCPA prohibits making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number assigned to a ... cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA creates a private right of action where a person may bring “an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.” Id. § 227(b)(3)(B). “The TCPA is essentially a strict liability statute” that “does not require any intent for liability except when awarding treble damages.” Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir.2011).

A. Automatic Telephone Dialing System

The TCPA defines an “automatic telephone dialing system” as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator, and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The FCC has explained that the TCPA includes equipment that has “the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.” In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 2003 WL 21517853, 18 F.C.C.R. 14014 ¶ 131 (Fed. Commc'n Cmm'n July 3, 2003). This is because the basic function of such equipment is “the capacity to dial numbers without human intervention.” Id. ¶ 132. The FCC affirmed this definition of an ATDS in 2008. In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 2008 WL 65485, 23 F.C.C.R. 559 ¶ 12 (Fed. Commc'n Cmm'n Jan.4, 2008).

Plaintiff's argument is that the LiveVox system fits the definition of an ATDS because it stores preprogrammed telephone numbers and then dials these numbers automatically in a sequential order from the preprogrammed list. D.E. 18–1 at 8– 11. Plaintiff relies heavily on the 2003 FCC order cited above. Defendant responds firstly that the LiveVox system is not an ATDS because it does not have the present capacity to store or produce numbers to be called using a random or sequential number generator. D.E. 24 at 6. Defendant argues that the 2003 FCC decision should not be afforded Chevron deference because the statutory language of the TCPA is clear; it requires the use of a random or sequential number generator and does not cover situations where cell phone numbers are preprogrammed into the dialing system. Id. at 9.

Defendant also argues that the LiveVox system is not an ATDS because it does not store telephone numbers and instead deletes all information on a daily basis. Id. at 4. Defendant submitted declarations from its employees stating that the LiveVox system “does not have the capacity to produce or store telephone numbers using a random or sequential number generator.” D.E. 34 ¶ 6; D.E. 33 at 2; D.E. 35 ¶ 5. These declarations were submitted by individuals who have experience “working with systems such as LiveVox,” but do not have knowledge about the LiveVox system's actual operation. D.E. 33 at 1; D.E. 34 ¶ 4; D.E. 35 ¶ 3.

This second argument fails on its face after examining how the LiveVox system operates. LiveVox's Executive Vice President of Operations', Michael Leraris, submitted a declaration that explains the “operational aspects of the LiveVox platform.” D.E. 32 ¶ 2. In the declaration, he states that telephone numbers provided by customers, such as Defendant, are “temporarily stored on the LiveVox platform.” Id. ¶ 5.³ The statute has no requirement on how long a telephone number is stored. If the equipment “has the capacity to store or produce telephone numbers,” then it meets the statutory definition of an ATDS. 47 U.S.C. § 227(a)(1)(A) (emphasis added). As explained by LiveVox's own employee who has personal knowledge regarding the system's operation, LiveVox has the capacity to store telephone numbers for at least an entire day. The details of how LiveVox operates is...