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Smith v. Navient Solutions, LLC

United States District Court, W.D. Pennsylvania

August 6, 2019

GREGORY J. SMITH, Plaintiff,
v.
NAVIENT SOLUTIONS, LLC, Defendant.

          MEMORANDUM OPINION

          KIM R. GIBSON UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Navient Solutions, LLC's Motion for Summary Judgment (ECF No. 56) and Motion in Limine to Preclude Plaintiff's Expert Report and Testimony (ECF No. 60). These motions are fully briefed (see ECF Nos. 57-59, 61-62, 65-66) and are ripe for disposition. For the reasons that follow, the Court will GRANT Navient's Motion for Summary Judgment (ECF No. 56) and DENY its Motion in Limine as moot (ECF No. 60).

         I. Background

         A. Procedural Background

         On October 17, 2017, Plaintiff Gregory J. Smith filed a two-count Complaint against Navient alleging that Navient: (1) violated the Telephone Consumer Protection Act (TCPA) by placing calls to Smith using an automated telephone dialing system (ECF No. 1 ¶¶ 31-33); and (2) violated Pennsylvania law by invading Smith's privacy and intruding upon his seclusion. (Id. ¶¶ 34-36.)

         From February of 2018 until February of 2019, the parties engaged in discovery. (See ECF Nos. 21, 28, 34.) On March 28, 2019, Navient filed the instant Motion for Summary Judgment. (ECF No. 56.) On April 18, 2019, it filed its Motion in Limine (ECF No. 60) to exclude the testimony and report of Smith's expert, Randall Snyder. Those Motions became ripe in May of 2019. (See ECF Nos. 65, 66.)

         B. Factual Background

         The Court derives the following facts from Navient's Concise Statement of Material Facts. (ECF No. 58.) Smith never filed a responsive concise statement of material facts as required by Local Rule 56. See LCvR 56(C).[1] To oppose a motion for summary judgment, the Local Rules provide that the opposing party:

shall file ... [a] separately filed concise statement, which responds to each numbered paragraph in the moving party's Concise Statement of Material Facts by: (a) admitting or denying whether each fact contained in the moving party's Concise Statement of Material Facts is undisputed and/or material; (b) setting forth the basis for the denial if any fact contained in the moving party's Concise Statement of Material Facts is not admitted in its entirety (as to whether it is undisputed or material), with appropriate reference to the record . . .; and (c) setting forth in separately numbered paragraphs any other material facts that are allegedly at issue, and/or that the opposing party asserts are necessary for the Court to determine the motion for summary judgment.

         LCvR 56(C)(1).

         "Alleged material facts set forth in the moving party's Concise Statement of Material Facts or in the opposing party's Responsive Concise Statement, which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." LCvR 56(E); see also Wylie v Transllnion, LLC, No. 3:16-cv-102, 201 WL 4357981, at *4-*8 (W.D. Pa. Sept. 29, 2017) (deeming the facts in movant's concise statement of material facts to be admitted because non-movant did not file a responsive concise statement in accordance with LCvR 56); Practices and Procedures of Judge Kim R. Gibson, at 27-29[2] ("All material facts set forth in the Movant's Concise Statement of Undisputed Material Facts shall be deemed admitted for the purposes of summary judgment unless specifically controverted as set forth herein."). Accordingly, the Court will treat the following facts from Navient's Concise Statement of Material Facts as admitted.

         1. Navient Services Smith's Loan

         Smith co-signed on $20, 000 in private loans that his daughter took out to go to college. (ECF No. 58 ¶¶ 1-2.) Navient, which is in the business of servicing private student loans and collecting payments, began servicing Smith's loans when they were taken out in August of 2005 and March of 2006. (Id. ¶¶ 3-4.)

         Smith defaulted on his loan obligations. (Id. ¶ 5.) On February 23, 2015, Smith provided Navient with a cell phone number to call regarding the loans. (Id. ¶ 6.) Through an automated call menu, Smith indicated that he called Navient from a cell phone, entered his cell phone number, and then authorized "Navient ... to contact [his] number, even if it is a cell phone, using a dialer, text or prerecorded message, concerning any of your current or future accounts." (Id. ¶ 7.)

         On May 2, 2015, Smith entered his mobile number on Navient's website and consented to Navient contacting his mobile number "using any means of communication, including, but not limited to, calls placed to [his] cellular phone using an automated dialing device, calls using prerecorded messages and/or SMS text messages." (Id. ¶¶ 8-9.)

         On January 20, 2017, Smith requested that Navient stop calling his cell phone. (Id. ¶ 11.) Navient made 136 calls to Smith's cell phone after he revoked his consent to be called. (Id. ¶ 13.) Smith only answered one of the 136 calls that Navient placed to Smith's cell phone after January 20, 2017. (Id. ¶¶ 14-15.) Navient alleges that Smith often did not have his cell phone with him when Navient called him. (Id. ¶¶ 16-17.)

         2. Navient's ININ Call System

         All the calls that Navient made to Smith after January 20, 2017 were placed using call software called "ININ." (Id. ¶ 19.) "The ININ telephony platform is a highly sophisticated design engine that [Navient] has custom configured to support its call centers in placing outbound calls and receiving inbound calls." (Id. ¶ 20.)

         The ININ system utilizes three different modes-"preview," "predictive," and "agentless"-when it places calls to consumers. (Id. ¶¶ 21-23.) In "preview" mode, a Navient agent must take some "human action" to place calls to consumers. (Id. ¶ 33.) In preview mode, Navient representatives review customer information from a database and choose which customers to call. (Id. ¶¶ 34-36.) In "predictive" and "agentless" modes, by contrast, the ININ system can initiate a call to a consumer without a Navient agent taking action to place the call. (Id. ¶ 31.) Of the 136 total calls that Navient placed to Smith's cell phone, twelve were placed in preview mode and the remaining calls were placed in predictive or agentless modes. (Id. ¶ 30.) In all three of these modes, a human representative (as opposed to a prerecorded voice) speaks with the consumer-the difference between the modes is the manner in which the number is dialed. (Id. ¶¶ 30-36.)

         The ININ system does not have the capacity to randomly generate telephone numbers to be called. (Id. ¶ 27.) Similarly, the ININ system does not have the capacity to generate sequential lists of telephone numbers. (Id. ¶ 28.) Rather, the telephone numbers that the ININ system dials are uploaded from a database containing Navient's customer information. (Id. ¶¶ 25-27.) As support for its assertions on the functionality of the ININ system, Navient cites the declaration and deposition testimony of Joshua Dries, its Senior Director of Dialer Operations (id. ¶¶ 18-28, 31-37) and the testimony by Smith's expert, Randall Snyder. (Id. ¶¶ 27-29.) Navient included Randall Snyder's declaration in the instant case in the Appendix to its Motion for Summary Judgment. (ECF No. 59-8.)

         II. Jurisdiction and Venue

         The Court has jurisdiction over Plaintiff's TCPA claim under 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Plaintiff's state-law claim under 28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391 because a substantial part of the events giving rise to this case took place in the Western District of Pennsylvania.

         III. Legal Standard

         "Summary judgment is appropriate only where . . . there is no genuine issue as to any material fact. . . and the moving party is entitled to judgment as a matter of law." Melrose, Inc. v. Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)); see also Celotex Corp. v. Catrett, Ml U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a). Issues of fact are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those that will affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248. The court's role is "not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). "In making this determination, 'a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.'" Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).

         The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party opposing summary judgment "may not rest upon the mere allegations or denials" of the pleading, but "must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 n.ll, (1986)). "For an issue to be genuine, the nonmovant needs to supply more than a scintilla of evidence in support of its position-there must be sufficient evidence (not mere allegations) for a reasonable jury to find for the nonmovant." Coolspring Stone Supply v. Am. States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993); see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (noting that a party opposing summary judgment "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue") (internal quotation marks omitted).

         IV. Discussion

         A. Navient is Entitled to Summary Judgment on Smith's TCPA Claim

         1. Background on the TCPA and ...


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