United States District Court, E.D. Pennsylvania
WILLIAM B. GILLARD, JR., et al. Plaintiffs
RECEIVABLES PERFORMANCE MANAGEMENT, LLC Defendant
GERALD J. PAPPERT, J.
Plaintiffs William B. Gillard, Jr. (“William”) and Alicia Gillard (“Alicia”) (collectively “the Gillards”), have sued Defendant Receivables Performance Management, LLC (“RPM”) for violation of the Telephone Consumer Protection Act (“TCPA”). The Gillards allege that RPM placed non-emergency calls to their cell phones using an automatic telephone dialing system (“ATDS”) or an artificial or prerecorded voice without their express consent, in violation of the TCPA. Both the Gillards and RPM now move for summary judgment. The Gillards move for summary judgment in their favor on the issue of whether RPM called them using an ATDS or artificial or prerecorded voice. (Pls.’ Mem. Supp. Mot. Summ. J. at 3, Doc. No. 47-3.) RPM moves for summary judgment in its favor on the same issue. (Def.’s Mem. Supp. Mot. Summ. J. at 10, Doc. No. 45-1). It also moves for summary judgment on the issues of whether it had William’s express consent to call his cell phone, whether it is liable for calls made to a cell phone belonging to William’s ex-wife, whether liability for some of the calls made to Alicia is barred by the relevant statute of limitations, and whether the Gillards can establish that RPM willfully and knowingly violated the TCPA.
The Court held oral argument on the motions on May 20, 2015. Upon consideration of the briefing on both motions and the parties’ positions at oral argument, the Court denies the Gillards’ motion and grants RPM’s motion with respect to the calls made to William’s ex-wife only. The Court denies RPM’s motion in all other respects.
The following facts are undisputed. RPM is a debt collector with offices located in Lynnwood, Washington. (Pls.’ Stmt. of Fact ¶ 6.) At all relevant times, the Gillards resided in Gilbertsville, Pennsylvania and were located within the United States. (Id. ¶¶ 1-2.) William had a cell phone with an assigned phone number ending in 0625, and Alicia had a cell phone with an assigned number ending in 4541. (Id. ¶¶ 5, 6.) William incurred a debt with Sprint, his cell phone carrier. (Id. ¶ 4.) Sprint retained RPM to collect this debt. (Id.) In an effort to collect the debt, RPM placed calls to the Gillards’ cell phones using a Noble Systems Dialer. (Id. ¶¶ 7, 8.) RPM also utilized a third-party vendor named Global Connect to place calls to the Gillards’ cell phones. (Id. ¶ 10.) In total, RPM and Global Connect made 172 calls to the Gillards’ cell phones. (Id. ¶¶ 12-14.) These calls occurred between July 19, 2010 and December 12, 2010, then again between October 5, 2014 and October 17, 2014. (Id. ¶¶ 11, 14.)
Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law.” Smathers v. Multi-Tool, Inc./Multi-Plastics, Inc. Emp. Health & Welfare Plan, 298 F.3d 191, 194 (3d Cir. 2002); see also Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A mere scintilla of evidence in support of the non-moving party will not suffice; there must be evidence by which a jury could reasonably find for the non-moving party. Id. at 252.
In reviewing the record, a court “must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Prowel v. Wise Bus. Forms, 579 F.3d 285, 286 (3d Cir. 2009). The court may not, however, make credibility determinations or weigh the evidence in considering motions for summary judgment. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); see also Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 665 (3d Cir. 2002). “When confronted with cross-motions for summary judgment . . . the Court considers each motion separately.” Wernicki-Stevens v. Reliance Standard Life Ins. Co., 641 F.Supp.2d 418, 422 (E.D. Pa. 2009).
RPM’s use of an ATDS or Artificial or Prerecorded Voice
Both the Gillards and RPM move for summary judgment on the issue of whether RPM violated the TCPA by calling the Gillards’ cell phones with an ATDS or an artificial or prerecorded voice. The Gillards assert that there are no genuine issues of material fact on this issue and they are entitled to judgment as a matter of law. RPM believes that the Gillards cannot establish that RPM called them using an ATDS or artificial or prerecorded voice without proffering expert testimony. The Court addresses each motion in turn.
The TCPA makes it unlawful “for any person within the United States, or any person outside the United States if the recipient is within the United States . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any [ATDS] or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . .” 47 U.S.C. § 227(b)(1)(A). The TCPA defines an ATDS 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). In a 2003 Order, the Federal Communications Commission ruled that the TCPA’s statutory language and legislative history showed that the central function of an ATDS is “the capacity to dial numbers without human intervention.” In re Rules and Regulations Implementing the Tel. Consumer Prot. Act, 18 FCC Rcd. 14014, 14091–92, ¶ 132 (June 26, 2003). It therefore brought within the ATDS definition telephone systems that can dial without human intervention from a pre-programed list of telephone numbers. Id.
The Gillards move for summary judgment on the issue of whether RPM used an ATDS or an automated or prerecorded voice. They contend that “RPM’s discovery responses in this case along with its public filings, depositions and declarations on record in other cases, as well as other administrative law and court findings conclusively establish that RPM used an ATDS to make calls to [the Gillards’] cell phones in violation of the TCPA.” (Pls.’ Mem. Supp. Mot. Summ. J. at 6.) The Gillards did not take any deposition testimony in reference to their own case. (Id. at 6 n.4.)
The Gillards’ evidence is not sufficient to show the absence of a genuine factual dispute as to whether RPM used an ATDS to call the Gillards’ cell phones. Much of the Gillards’ evidence relates to incidents that occurred outside of the relevant time frame. For example, the Gillards present a declaration from RPM Chief Operating Officer Christopher Vittoz that was executed on November 6, 2013 and a letter that Global Connect sent to the FCC in 2006. (Id., Ex. I, K.) They also present an Administrative Law Judge decision regarding a 2009 investigation ...