Saladino v. Portfolio Recovery Assocs.

684 F.Supp.3d 89

Joy SALADINO, Plaintiff, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.

6:19-CV-06570 EAW

United States District Court, W.D. New York

Signed July 26, 2023

Kenneth R. Hiller, Seth Andrews, Law Offices of Kenneth Hiller, PLLC, Amherst, NY, for Plaintiff.

Ethan Ostroff, Troutman Pepper Hamilton Sanders LLP, Virginia Beach, VA, Stephen J. Steinlight, Troutman Pepper Hamilton Sanders LLP, New York, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, Chief Judge

INTRODUCTION

Plaintiff Joy Saladino ("Plaintiff") brings this action against defendant Portfolio Recovery Associates, LLC (hereinafter, "Defendant" or "PRA"), asserting violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (hereinafter, the "TCPA"), and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (hereinafter, the "FDCPA"). (Dkt. 1). Presently before the Court is Defendant's motion for summary judgment. (Dkt. 25). For the following reasons, Defendant's motion is granted.

BACKGROUND

I. Procedural Background

Plaintiff filed her complaint on July 31, 2019, asserting two claims: (1) violation of the FDCPA, 16 U.S.C. § 1692d(5), for calling Plaintiff on her cellular telephone multiple times, which served to annoy, abuse, and/or harass her, and (2) violation of the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), by initiating telephone calls to Plaintiff's cellular telephone using an automated telephone dialing system and/or using an artificial and/or prerecorded voice to deliver messages without Plaintiff's consent. (Dkt. 1 at 3-5). Plaintiff seeks actual, statutory, and treble damages. (Id. at 5).

The case was initially assigned to the Honorable Michael A. Telesca, United States District Judge. Defendant answered the complaint on September 30, 2019 (Dkt. 4), and the case was referred to the Honorable Marian W. Payson, United States Magistrate Judge, for supervision of discovery (Dkt. 5). After Judge Telesca's death, the case was transferred to the undersigned on March 19, 2020. (Dkt. 14).

On August 18, 2020, Defendant filed an unopposed motion to stay the case pending the United States Supreme Court's decision in Facebook, Inc. v. Duguid, No. 19-511. (Dkt. 15). In Facebook, the Supreme Court was expected to rule directly on the definition of an "automatic telephone dialing system" (also referred to herein as an "ATDS") under the TCPA, as relevant to Plaintiff's second cause of action. (Id. at ¶¶ 1-6). On August 14, 2020, Judge Payson granted the motion to stay the case pending the Supreme Court's decision in Facebook, and directed counsel to provide periodic written status reports. (Dkt. 16; see also Dkt. 17; Dkt. 19). On April 15, 2021, Defendant notified the Court that the Supreme Court had issued an opinion in the Facebook case. (Dkt. 20). Judge Payson directed the parties to submit a jointly proposed amended scheduling order (Dkt. 21), and an amended case management order was issued on April 30, 2021 (Dkt. 23).

Defendant filed a motion for summary judgment on March 24, 2022. (Dkt. 25). The Court issued a scheduling order (Dkt. 26; Dkt. 27), and Plaintiff filed response papers on April 29, 2022 (Dkt. 28). Defendant filed a reply brief on May 13, 2022. (Dkt. 29).

II. Factual Background

The following facts are taken from Defendant's Statement of Material Facts (Dkt. 25-2), Plaintiff's response thereto (Dkt. 28-3), and the exhibits submitted in support of and in opposition to Defendant's motion for summary judgment.

A. Defendant's Acquisition of Plaintiff's Account

On or about December 6, 2009, Plaintiff applied for a Synchrony Bank ("Synchrony") credit card and incurred a financial obligation with Synchrony, bearing account number -8328. (Dkt. 25-2 at ¶ 39; Dkt. 28-3 at ¶ 39). On March 22, 2017, Defendant purchased a Synchrony portfolio that included Plaintiff's -8328 account, which Defendant contends had an outstanding balance of $2,082.02. (Dkt. 25-2 at ¶ 40). Plaintiff denies that the balance owed was $2,082.02. (Dkt. 28-3 at ¶ 40). Defendant began efforts to collect the purported debt. (Dkt. 25-2 at ¶ 41; Dkt. 28-3 at ¶ 41).

In connection with its collection efforts for Plaintiff's Synchrony account, Defendant made telephone calls to telephone numbers ending in -9321, -8429, and -8749. (Dkt. 25-2 at ¶ 42; Dkt. 28-3 at ¶ 42). Defendant states that it obtained the number ending in -9321 from Synchrony when it purchased the account, and it obtained the numbers ending in -8429 and -8749 from a third-party location vendor on April 14, 2017. (Dkt. 25-2 at ¶¶ 43-45). Defendant contends that these three telephone numbers are the only numbers Defendant called in connection with its collection efforts for the Synchrony account. (Id. at ¶ 46).

B. Defendant's Call Technology

The technologies used by Defendant to place phone calls to Plaintiff include the following: (1) the Avaya Proactive Contact; (2) Asimut Click-to-Dial ("Asimut"); and (3) LiveVox Human Call Initiator ("LiveVox HCI"). (Dkt. 25-2 at ¶ 1; Dkt. 28-3 at ¶ 1). The capabilities of each technology are discussed below.

The Asimut technology cannot initiate calls automatically, nor does it use prerecorded or artificial voice messages. (Dkt. 25-2 at ¶¶ 2-3; Dkt. 28-3 at ¶¶ 2-3). To place a call, a PRA representative would begin the Asimut application by clicking a "Click-to-Dial" button. (Dkt. 25-2 at ¶ 4; Dkt. 28-3 at ¶ 4). When logging in to the Asimut job application, the representative is presented with a job list; once the representative clicks on a job, a screen to click-to-dial the next available record appears. (Dkt. 25-2 at ¶¶ 5-6; Dkt. 28-3 at ¶¶ 5-6). When the representative clicks the button, the representative places a call to the phone number that is associated with the record selected for that specific job, and once a call is completed, the representative adds a "call result" to the account record. (Dkt. 25-2 at ¶¶ 7-8; Dkt. 28-3 at ¶¶ 7-8). The technology can place only one call at a time. (Dkt. 25-2 at ¶ 9; Dkt. 28-3 at ¶ 9). Further, the Asimut technology possesses no computing or calculating ability, and it is merely a conduit for information owned by Defendant. (Dkt. 25-2 at ¶ 11; Dkt. 28-3 at ¶ 11). For example, the Asimut technology lacks the capacity to store or produce telephone numbers to be called using a random or sequential number generator, it cannot be modified to store or produce telephone numbers to be called using a random or sequential number generator, and it can only dial telephone numbers from a stored list associated with accounts that Defendant owns. (Dkt. 25-2 at ¶¶ 12-14; Dkt. 28-3 at ¶¶ 12-14).

Similarly, the LiveVox HCI technology cannot initiate calls automatically, and an agent must manually initiate each call and determine the frequency of the calls. (Dkt. 25-2 at ¶¶ 15-16; Dkt. 28-3 at ¶¶ 15-16). LiveVox HCI does not use any predictive or other kind of algorithm to engage in predictive dialing of any kind, and it does not use any statistical algorithm to minimize the time that agents spend waiting between calls or to minimize the occurrence of a consumer answering a call when no agent is available. (Dkt. 25-2 at ¶¶ 17-18; Dkt. 28-3 at ¶¶ 17-18). LiveVox HCI cannot auto-dial, it has no features that permit autodialing, and it cannot be modified to enable autodialing. (Dkt. 25-2 at ¶ 19; Dkt. 28-3 at ¶ 19). LiveVox HCI, as implemented by Defendant, does not have the capacity to produce or store numbers to be called using a random or sequential number generator, nor does it have the capacity to generate random or sequential ten-digit telephone numbers and then dial them. (Dkt. 25-2 at ¶ 20; Dkt. 28-3 at ¶ 20). In other words, it can only dial numbers from a stored list associated with accounts that Defendant owns. (Dkt. 25-2 at ¶ 21; Dkt. 28-3 at ¶ 21). LiveVox HCI does not use an artificial or prerecorded voice. (Dkt. 25-2 at ¶ 22; Dkt. 28-3 at ¶ 22).

Defendant also utilizes Avaya Proactive Contact. (Dkt. 25-2 at ¶ 23; Dkt. 28-3 at ¶ 23). The Avaya technology is reflected on Defendant's call logs by the term "Dialed" and "Asimut Dialed" listed under the Call Method. (Dkt. 25-2 at ¶ 24; Dkt. 28-3 at ¶ 24). Avaya licenses the software to Defendant, and Defendant is not permitted to make changes to the software under the maintenance agreement between it and Avaya. (Dkt. 25-2 at ¶ 25; Dkt. 28-3 at ¶ 25). Defendant's Avaya Technology can only dial phone numbers contained in a list created through Defendant's collection system, called "PRANet." (Dkt. 25-2 at ¶ 27; Dkt. 28-3 at ¶ 27). The list is made up of phone numbers associated with debtor accounts that Defendant owns. (Dkt. 25-2 at ¶ 28; Dkt. 28-3 at ¶ 28). After accounts with an increased likelihood of collection are identified, the telephone numbers associated with these accounts are entered into a computer file known as a "calling list." (Dkt. 25-2 at ¶ 29; Dkt. 28-3 at ¶ 29). The resulting calling list is transmitted directly from PRANet to the Avaya Technology for processing. (Dkt. 25-2 at ¶ 29; Dkt. 28-3 at ¶ 29). Once the calling lists from PRANet are processed by the Avaya Technology, the records associated with the numbers in the calling lists are placed into a "job." (Dkt. 25-2 at ¶ 30; Dkt. 28-3 at ¶ 30). When a PRA representative begins calling debtors, the representative is electronically provided access to one of the jobs that has been previously created, and the accounts within these jobs are called by representatives when they contact debtors about paying their debts. (Dkt. 25-2 at ¶¶ 31-32; Dkt. 28-3 at ¶¶ 31-32).

The Avaya technology does not have the capacity to produce or store telephone numbers using a random or sequential number generator, and it has never had this functionality or capacity. (Dkt. 25-2 at ¶¶ 33-34, Dkt. 28-3 at ¶¶ 33-34). If Defendant desired to dial phone numbers using a random or sequential number generator, Defendant would have to change the current programming of its Avaya technology, which it cannot do. (Dkt. 25-2 at...