Meier v. Allied Interstate, LLC

RICHARD MEIER, Plaintiff, v. ALLIED INTERSTATE, LLC, Defendant.

Case No.: 18-CV-1562-GPC-BGS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

February 19, 2020

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT.

(ECF Nos. 24, 25.)

Richard J. Meier ("Plaintiff"), representing himself, has brought this action alleging that Allied Interstate, LLC, ("Defendant" or "Allied") contacted his cellphone using an automatic telephone dialing system ("ATDS") in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). (ECF No. 1, Complaint.) Allied admits contacting Plaintiff but denies doing so using an ATDS. (ECF No. 4, Answer.)

On June 6, 2019, Defendant filed a motion for summary judgment. (ECF No. 24.) Plaintiff responded on June 21, 2019, (ECF No. 29), and Defendant replied on June 27, 2019. (ECF No. 30.) Acting in parallel, Plaintiff filed a motion for partial summary judgment on June 7, 2019. (ECF No. 25.) Defendant responded on June 21, 2019, (ECF No. 28), and Plaintiff replied on June 28, 2019. (ECF No. 33.)

On September 20, 2019, the Court held a hearing on the parties' summary judgment motions and took the motions on submission. (ECF No. 35.) On October 11, 2019, Defendant filed a notice of supplemental authority. (ECF No. 38.) Then, on October 14, 2019, Plaintiff filed a response and an amended response. (ECF Nos. 39, 40.)

Upon consideration of the facts, moving papers, and oral argument, the Court GRANTS Defendant's motion for summary judgment and DENIES Plaintiff's motion for partial summary judgment for the reasons stated in this order.

I. Background

Allied Interstate is a third-party debt collector. (ECF No. 24-2, Kolosovskiy Decl. at ¶ 2.) Allied's primary business involves placing telephone calls to their clients' customers to collect outstanding debts. (Id.) In April 2019, Allied was hired by a client, Public Storage, to collect an outstanding debt from a customer, Mr. Chapman. (Id. at ¶ 3.) Between April 23 and May 23, 2018, Allied made approximately seventy-seven (77) collection calls to a phone number ending in 8428 in an attempt to reach Mr. Chapman. (Id. at ¶ 4; ECF No. 24-2, Ex. A, Allied Call Log.) Plaintiff Meier alleges that these calls went to his cellphone. (ECF No. 1, Complaint at ¶¶ 11-14.)

All 77 calls were made using a dialing system known as Live Vox Human Call Initiator ("HCI"). (ECF No. 24-1, Siegel Decl. at ¶ 20; ECF No. 24-2, Kolosovskiy Decl. at ¶ 6.) LiveVox HCI is one of four dialing systems available on a platform designed and operated by LiveVox. (ECF No. 25-4, Siegel Depo. at 8.)¹ Allied makes 10,000 or more calls via LiveVox HCI every day. (ECF No. 25-6, Kolosovskiy Depo. at 33.)

a. Allied & the LiveVox Platform

The LiveVox Platform is a "comprehensive calling platform" that offers "fourseparate outbound dialing systems," including "one automated outbound dialing system and three human initiated outbound dialing systems." (ECF No. 24-1, Siegel Decl. at ¶¶ 3, 5; ECF No. 25-4, Siegel Depo. at 41 ("one platform, multiple systems")). The four dialing systems - also referred to as "clouds" - are the Manual system, the HCI system, the Preview All System, and the Automated system. (ECF No. 25-4, Siegel Depo. at 8, 13.) This litigation concerns the HCI and Automated dialing systems.²

Allied "can use the LiveVox Platform to make phone calls, and when they make phone calls on the LiveVox Platform they can use one of [the] Four Clouds." (ECF No. 25-4, Siegel Depo. at 13.) More specifically, Allied has access to, and uses, at least three of the four dialing systems: the Manual system, Automated system, and HCI system. (ECF No. 25-6, Kolosovskiy Depo. at 43, 45-46.)³

To operate the dialing systems, LiveVox relies on two additional components named the Campaign Database and the Automatic Call Distributor ("ACD"). (ECF No. 25-4, Siegel Depo. at 10-17.) All four dialing systems utilize these components to create calling campaigns, store customer data, and route phone calls among LiveVox agents. (Id. at 10-17, 24, 28.) From LiveVox's perspective, however, the ACD and the Campaign Database are "not part of the HCI system." (Id. at 43.) Instead, "HCI is the queuer and the manual server." (Id.)

The LiveVox Platform also relies on two server pools - a manual media server pool and an automated media server pool - to operate the dialing systems. (ECF No. 25-4, Siegel Depo. at 7, 13.) The manual pool supports the HCI, Manual, and Preview All dialing systems, whereas the automated pool supports the Automated dialer. (Id. at 23.)

In providing these services, LiveVox "hosts the hardware and software for its outbound dialing systems at its own data centers." (ECF No. 24-1, Siegel Decl. at ¶ 4.) Defendant accessed the software through a secure online portal and did not download or install software on its computers to use LiveVox. (Id.; ECF No. 25-6, Kolosovskiy Depo. at 44.)

b. Using LiveVox HCI

To use LiveVox HCI, a client, like Allied, must build a calling campaign. (ECF No. 25-4, Siegel Depo. at 13.) The client first transfers files to the LiveVox Platform containing any phone numbers and customer records to be called. (Id. at 12-13; ECF No. 25-6, Kolosovskiy Depo. at 21-23.) This information is stored on the Campaign Database - not in the HCI dialer. (ECF No. 25-4, Siegel Depo. at 12, 23-24.) Clients then choose "a bunch of different parameters" for the campaigns, including which dialer to use, whether to incorporate text messages, and how to engage with Caller ID. (Id. at 13, 29-31; see also ECF No. 37, Excerpts from the LiveVox User Manual).

Once the client designs the campaign, it may initiate the campaign by pressing "play." (ECF No. 25-4, Siegel Depo. at 15-16, 24-27.) This sends the customer's phone numbers from the Campaign Database to the ACD. (Id. at 16.) The ACD, in turn, "shows those telephone numbers to the clicker agent." (Id. at 17; ECF No. 25-6, Kolosovskiy Depo. at 24-27.)

A clicker agent is a person, working on behalf of LiveVox and its client, who initiates campaign phone calls by clicking on individual phone numbers. (ECF No. 25-4, Siegel Depo. at 14-16; ECF No. 25-6, Kolosovskiy Depo. at 21.) Clicker agents access these numbers through a client-specific "web portal" or online "interface." (ECF No. 25-4, Siegel Depo. at 13, 17-18.) To initiate a call, a clicker agent must click "on each and every number individually." (ECF No. 25-6, Kolosovskiy Depo. at 21, 35, 38; ECF No.24-1, Siegel Decl. at ¶ 8.)

Once, the clicker agent clicks on a phone number, the LiveVox Platform sends the call "over to the HCI queuer," then "to the manual media server pool," and finally out to the Public Switched Telephone Network (PSTN)⁴ to connect with the customer. (ECF No. 25-4, Siegel Depo. at 14-15, 20.) The manual media server pool can detect whether an answering machine or a person (i.e., the customer) answers the call. (Id. at 22.) If a person answers, then the call is re-routed to a closer agent by the ACD. (Id. at 22, 28.)

"The closer agent is the agent designated by the LiveVox customer (in this case, Allied) to speak with the" customer. (ECF No. 24-1, Siegel Decl. at ¶ 9; ECF No. 25-6, Kolosovskiy Depo. at 29, 42.) Closer agents access the calls by logging into a client-specific, online portal hosted by the ACD. (ECF No. 25-4, Siegel Depo. at 18.) Then, they click on numbers displayed through the portal to join a call. (Id. at 19.) If no closer agents are available to speak with a customer, then the clicker agents' screens do not display phone numbers and no calls can be made. (Id. at 17-19; ECF No. 25-6, Kolosovskiy Depo. at 30.) A closer agent is available if he is logged into the ACD, "in the ready stage and not on a phone call." (ECF No. 25-4, Siegel Depo. at 18, 19.)

A client can "pause" or "stop" a campaign at any time. (Id. at 33.) Once stopped, a client can re-start the campaign. (Id.) This is called "re-queue[ing]" the campaign. (Id.) When re-queueing a campaign, the client must re-select the campaign's parameters. (Id. at 34-35.) The client can, for example, change the dialing system used by the campaign. (Id. at 40-41.) A client need not re-upload their customers' phone numbers as the filesfrom the prior campaign remain stored in the Campaign Database and available for future use. (Id. at 35, 37-39; ECF No. 37, Excerpts from the LiveVox User Manual at 18-20.) If a client alters the dialing system for a campaign, the clicker agent must log out of HCI to re-access the campaign. (ECF No. 24-1, Siegel Decl. at ¶ 10.)

c. Using the Automated dialer

Like the HCI dialer, building a calling campaign in the Automated dialer begins with the client uploading a file to LiveVox. (ECF No. 25-4, Siegel Depo. at 26.) The client then chooses the Automated dialer, among the various parameters available when making a campaign, and hits "play" to launch the campaign. (Id. at 26, 27.)

Once the client hits "play," the "automated system will dial the . . . records in that campaign . . . in order to keep the [closer] agents occupied." (Id. at 27.) Different to the HCI dialing system, no clicker agents are needed to initiate each call. (Id.) The Automated dialer also routes the call differently, sending each call first through the "automated queuer," and then to the "automated server pool," before launching the call out onto the PSTN. (Id.)

If a live person answers the call, the ACD "connects the closer agents with" them. (Id. at 28.) As with the HCI dialer, the automated system will only "dial the campaigns" once the "[closer] agent is logged in." (Id. at 27.)

II. Standard of Review

Summary judgment should be granted if 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 judgment as a matter of law." Fed. R. Civ. P. 56(c).

A fact is material when it...