Hunt v. 21st Mortgage Corporation

Filing 24

MEMORANDUM OPINION AND ORDER For reasons as noted within, Hunts motion to compel is held in abeyance; All deadlines are SUSPENDED. On or before August 26, 2013, 21 Mtg. shall file with the Clerk an affidavit as diected within; ON AND NOT BEFORE SEPTE MBER 6, 2013, each party shall file a brief with the Clerk, not to exceed twenty pages, justifying the partys position as outline within; 21 Mtg. shall not dispose of any equipment now in its possession without the express permission of the court. Signed by Judge William M Acker, Jr on 8/16/13. (SAC )

FILED
2013 Aug-16 PM 03:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES HUNT,
Plaintiff,
v.
21ST MORTGAGE CORPORATION,
Defendant.

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CIVIL ACTION NO.
12-AR-2697-S

MEMORANDUM OPINION AND ORDER
On August 9, 2013, the court conducted an oral hearing on the
motion to compel filed by plaintiff, Charles Hunt (“Hunt”), on
August 1, 2013, seeking access to the premises of defendant, 21st
Mortgage Corporation (“21st Mtg.”).

In opposing the motion, 21st

Mtg. reiterated its insistence that no “automatic telephone dialing
system,” as defined in 47 U.S.C. § 227, whether or not now stored
on its premises, was ever used by it for the telephone calls it
made

to

Hunt,

irrelevant.

and

therefore

that

the

stored

equipment

is

Hunt responds with the argument that even if the

equipment was not actually used (something he denies), if it was
possessed and available, its mere capability for automatically
storing

or

producing

telephone

numbers

was

the

functional

equivalent of actually using the equipment, and therefore, would
prove a violation of the Telephone Consumer Production Act of 1991,
just as if it had been used.

21st Mtg. has not conceded that within

the time period during which the telephone calls here in dispute
were made, it had in its possession and available for use an

“automated telephone dialing system”, as that term is defined in 47
U.S.C. § 227.

Under the circumstances, it is hereby ORDERED as

follows:
1.

On or before August 26, 2013, 21st Mtg. shall file with

the Clerk an affidavit, executed by a knowledgeable officer of the
company, either confessing that 21st Mtg. had in its possession and
available for use an “automated telephone dialing system”, as that
term is defined in 47 U.S.C. § 227, during the time period in
question, or denying that it had such equipment in its possession
and available for use during the said time period.

In the event

the affidavit asserts that 21st Mtg. did possess equipment capable
of performing some, but not all, of the functions of equipment
defined in 47 U.S.C. § 227, the affidavit shall describe the
distinctions in detail.
2.

ON AND NOT BEFORE SEPTEMBER 6, 2013, each party shall

file a brief with the Clerk, not to exceed twenty (20) pages,
justifying the party’s position with respect to the significance in
this case of equipment defined in 47 U.S.C. § 227 that was not
actually used, but that was capable storing or producing telephone
numbers

to

be

called,

using

a

random

or

sequential

number

generator, and to dial such numbers without regard to whether or
not

the

equipment

was

actually

employed

to

make

any

of

the

telephone calls at issue.
3.

21st Mtg. shall not dispose of any equipment now in its
2

possession without the express permission of the court.
4.

Hunt’s motion to compel is held in abeyance.

5.

All deadlines are SUSPENDED.

DONE this 16th day of August, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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