Manuel v. NRA Grp., LLC

200 F.Supp.3d 495

Peterson MANUEL, Plaintiff

v.NRA GROUP, LLC, Defendant.

CIVIL ACTION NO. 1:15-CV-274

United States District Court, M.D. Pennsylvania.

Signed August 5, 2016

Jody B. Burton, Lemberg Law, LLC, Wilton, CT, Jenny D. DeFrancisco, Lemberg Law, LLC, Stamford, CT, for Plaintiff.

Eric Corey Rosenberg, Richard J. Perr, Fineman Krekstein & Harris, PC, Jessica E. Loesing, Gordon & Rees LLP, Philadelphia, PA, for Defendant.

MEMORANDUM

Christopher C. Conner, Chief Judge

Peterson Manuel ("Manuel") commenced this action against NRA Group, LLC ("NRA") under the Telephone Consumer Protection Act, 47 U.S.C. § 227, asserting that NRA willfully placed non-emergency calls to Manuel's cell phone using an "automatic telephone dialing system" without Manuel's consent. (Doc. 1). Before the court are the parties' respective cross-motions (Docs. 20, 21) for summary judgment pursuant to Federal Rule of Civil Procedure 56. The court will grant Manuel's motion in part and deny NRA's motion.

I. Factual Background and Procedural History¹

NRA is a revenue recovery service operating out of Harrisburg, Pennsylvania. (Doc. 23-4, Sarver Dep. 12:10-22, 14:6-8, Nov. 3, 2015 ("Sarver Dep.")). NRA employs approximately eighty collection agents who are tasked with contacting consumers regarding delinquent payments. (Sarver Dep. 13:14-17, 16:17-21). In October 2011, NRA acquired a collection account from the City of Fort Lauderdale, Florida for an outstanding parking ticket in Manuel's name. (Doc. 22 ¶¶ 1-2; Doc. 46-1 ¶¶ 1-2).

NRA enlisted third-party information provider Experian Metronet Skiptrace ("Experian") to procure a phone number for Manuel. (See Doc. 22 ¶ 3; Doc. 34 ¶ 7; Doc. 40 ¶ 7; Doc. 46-1 ¶ 3). According to NRA, in May 2012, Experian supplied a phone number which it represented as Manuel's residential landline. (See Doc. 22 ¶¶ 4-5; Doc. 23-2 at 10; Doc. 40 ¶ 7). The number instead corresponds to Manuel's cell phone. (Doc. 34 ¶¶ 4-5, 8; Doc. 40 ¶¶ 4-5, 8). NRA's "cellular telephone scrub," which ascertains mislabeled cell phone numbers in NRA's system, did not identify Manuel's cell phone number as such until June 23, 2014. (Doc. 22 ¶¶ 41-42; Doc. 46-1 ¶¶ 41-42).

Between May 31, 2012 and June 17, 2014, NRA placed 149 collection calls to Manuel's cell phone. (Doc. 22 ¶¶ 6-7; Doc. 46-1 ¶¶ 6-7; see Doc. 23-1; Doc. 23-2 at 8; Doc. 34 ¶ 9). Manuel received voicemails from NRA which contained protracted silence and terminated with the sound of a "click." (Doc. 34 ¶ 38; Doc. 40 ¶ 38). None of the voicemails included live messages from NRA representatives. (Doc. 34 ¶ 39; Doc. 40 ¶ 39). Manuel asserts that upon answering certain of NRA's calls, he experienced a conspicuous delay before speaking with a collection agent. (Doc. 23-3, Manuel Dep. 28:22-30:10, Jan. 6, 2016 ("Manuel Dep.")). Manuel contends that during a conversation with an NRA representative "[m]aybe a couple of months ... after [he] ... started getting the calls," he expressed a desire for NRA to "stop calling [his] ... cell phone." (Id. 23:1-9). Manuel does not recollect whether he placed or received this call. (Id. 23:7-16).

NRA initiated 146 of the 149 phone calls to Manuel using Mercury Predictive Dialer ("Mercury Dialer"), an electronic dialing device designed to expedite revenue recovery campaigns.² (See Doc. 22 ¶¶ 11-12; Doc. 34 ¶¶ 10-12; Doc. 38, CR Software Mercury Predictive Dialer Manual at 377, May 17, 2012; Doc. 40 ¶¶ 10-12; Doc. 46-1 ¶¶ 11-12; Sarver Dep. 28:12-30:13, 37:1-16, 39:2-15; 58:16-20). NRA operates Mercury Dialer in tandem with a collection software called Platinum System. (Sarver Dep. 19:7-10, 30:5-13). On a daily basis, NRA's Director of Collections, Charlene Sarver ("Sarver"), enters campaign parameters into Platinum System, delineating which accounts Mercury Dialer may access and call that day. (Doc. 22 ¶¶ 19-20; Doc. 46-1 ¶¶ 19-20).

Mercury Dialer operates in three modes: (1) predictive; (2) power; and (3) non-predictive agent, or preview. (Doc. 34 ¶ 19; Doc. 40 ¶ 19). Sarver testified in her deposition that NRA uses Mercury Dialer's predictive mode in the following manner:

Q: So, when [Mercury Dialer] is in predictive mode can you sort of tell me, in your own words, how it works?

A: When a collector ... log[s] into ... Platinum System[,] they tell it they want to go into the dialer system, and from the dialer system they access whatever work ... they are told to do for the day, and once they are ready to ... start working, they hit the F4 key, and the dialer will dial a call for them.

Q: Okay. Do they have to hit the F4 key for every call?

A: Correct.

...

Q: [W]hen [Mercury Dialer] dials in [p]redictive mode, who physically makes the call, the collector or the dialer?

A: The dialer.

Q: Okay. And is that call dialed before the collector presses F4 or after?

A: In [p]redictive it attempts to predict when the next person will hit F4.

Q: Okay. So, it predicts when the next person will hit F4, and then someone hits F4, and it will route that call to that person?

A: It will give them a call, yes....

...

Q: In [p]redictive mode account [sic] collectors choose to make a call to a particular account?

A: No.

Q: So, the dialer adheres to whatever campaign parameters you set for the particular day?

A: That's correct.

Q: Okay. Now ... let us say someone answers a call that is made with [Mercury Dialer] in [p]redictive mode, what—does the person answer, and then it is routed to the next person who hits F4?

A: When the person hits F4, if it connects a call, it is just like you would say hello, and you are there.

Q: And what happens in [p]redictive mode when [Mercury Dialer] gets an answering machine?

A: We drop it.

Q: Does the collector drop it or the dialer drops it?

A: The dialer drops it.

(Sarver Dep. 30:1-17, 32:6-19, 33:13-34:10).

With respect to the distinction between predictive mode and power mode, Sarver testified that "[p]ower mode doesn't try to predict when someone is going to hit the F4 key." (Id. 34:14-17). Sarver explained that each individual call placed in power mode is triggered by a collection agent pressing F4. (Id. 34:18-35:8). Finally, in contrast with predictive and power modes, preview mode enables collection agents to call specific phone numbers listed in Platinum System. (Doc. 22 ¶ 31; Doc. 34 ¶ 31; Doc. 40 ¶ 19; Doc. 46-1 ¶ 31). Agents effectuate calls in preview mode by manually selecting a number and pressing F4, prompting Mercury Dialer to place the requested call. (Doc. 22 ¶ 34; Doc. 46-1 ¶ 34).

Sarver's testimony confirmed that in all three modes, the number of calls initiated by Mercury Dialer "is directly tied to the number of people... at a desk that are hitting the F4 key" and that no calls are "processed for [a] collector without hitting the F4 key." (Sarver Dep. 57:12-18, 58:3-5). NRA's call records for Manuel identify in each instance whether Mercury Dialer placed the call, but do not specify its operational mode. (Id. 38:17-25; see Fact Sheet; Doc. 34 ¶ 32; Doc. 40 ¶ 32).

Manuel submitted a complaint to the Consumer Financial Protection Bureau regarding NRA's calls to his cell phone. (Doc. 34 ¶ 40; Doc. 40 ¶ 40). On June 23, 2014, the Consumer Financial Protection Bureau notified NRA of Manuel's grievance. (Doc. 34 ¶ 41; Doc. 40 ¶ 41). NRA thereafter terminated all phone communications with Manuel. (Doc. 22 ¶ 42; Doc. 46-1 ¶ 22).

Manuel initiated the action sub judice with the filing of a complaint (Doc. 1) on February 6, 2015. Therein, Manuel asserts a single statutory claim, to wit: that NRA knowingly violated the Telephone Consumer Protection Act by calling Manuel's cell phone using an automatic telephone dialing system without Manuel's consent. 47 U.S.C. § 227 ; (see Doc. 1 ¶¶ 14-22). The parties timely filed the instant cross-motions and supporting papers. (Docs. 20-25, 34, 36-37, 40, 42-44, 46). The motions are fully briefed and ripe for disposition.

II. Legal Standard

Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact" and for which a jury trial would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of proof tasks the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D.Pa.2004) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–89, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Only if this threshold is met may the cause of action proceed. See Pappas, 331 F.Supp.2d at 315.

Courts are permitted to resolve cross-motions for summary judgment concurrently. See Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir.2008) ; see also Johnson v. Federal Express Corp., 996 F.Supp.2d 302, 312 (M.D.Pa.2014) ; 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2720 (3d ed. 2014). When doing so, the court is bound to view the evidence in the light most favorable to the non-moving party with respect to each motion. FED. R. CIV. P. 56 ; Lawrence, 527 F.3d at 310 (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.1968) ).

III. Discussion

The parties' Rule 56argumenta a contrario converge upon a discrete inquiry: whether NRA's Mercury Dialer constitutes an automatic telephone dialing system as defined by the Telephone Consumer Protection Act. 47 U.S.C. § 227. Manuel contends that Mercury Dialer qualifies as such by virtue of its capacity to place calls independent of contemporaneous human intervention.³ (See Doc. 34-1 at 11-14; Doc. 44 at 2-9). Manuel seeks entry of judgment in his favor and urges the court to hold, as a matter of law, that NRA willfully violated the ...