United States District Court, W.D. Pennsylvania
GREGORY J. SMITH, Plaintiff,
NAVIENT SOLUTIONS, LLC, Defendant.
GIBSON UNITED STATES DISTRICT JUDGE
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).
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. ¶¶
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.)
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). To oppose a
motion for summary judgment, the Local Rules provide that the
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
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 ("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
Navient Services Smith's Loan
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.)
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.)
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. ¶¶
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.
Navient's ININ Call System
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.)
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.)
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.)
Jurisdiction and Venue
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.
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)).
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).
Navient is Entitled to Summary Judgment on Smith's TCPA
Background on the TCPA and ...