Harvey v. Portfolio Recovery Associates, LLC
Filing
148
ORDER Granting Defendant's Motion for Summary Judgment and Denying Defendant's Motion to Exclude as Moot. Signed by Judge John A. Houston on 7/5/2023.(anh)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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IN RE PORTFOLIO RECOVERY
ASSOCIATES, LLC, TELEPHONE
CONSUMER PROTECTION ACT
LITIGATION
Case No.: 11md02295 JAH-BGS
Member cases:
All member cases
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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT AND DENYING
DEFENDANT’S MOTIONS TO
EXCLUDE AS MOOT
[Doc. Nos. 673, 850, 885]
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Pending before the Court are Defendant’s motion for summary judgment (Doc. No.
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850) and motions to exclude (Doc. Nos. 673, 885). For the reasons discussed below, the
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Court GRANTS Defendant’s motion for summary judgment and DENIES Defendant’s
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motions to exclude as moot.
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DISCUSSION
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I. Motion for Summary Judgment
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A. Legal Standard
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Summary judgment is properly granted when “there is no genuine issue as to any
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material fact and the movant is entitled to judgment as a matter of law.” FED.R.CIV.P.
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56(a). Entry of summary judgment is appropriate “against a party who fails to make a
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showing sufficient to establish the existence of an element essential to that party’s case,
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and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
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477 U.S. 317, 322 (1986). The party moving for summary judgment bears the initial
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burden of establishing an absence of a genuine issue of material fact. Celotex, 477 U.S. at
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323. Where the party moving for summary judgment does not bear the burden of proof at
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trial, as here, it may show that no genuine issue of material fact exists by demonstrating
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that “there is an absence of evidence to support the non-moving party’s case.” Id. at 325.
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The moving party is not required to produce evidence showing the absence of a genuine
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issue of material fact, nor is it required to offer evidence negating the non-moving party’s
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claim. Lujan v. National Wildlife Fed’n, 497 U.S. 871, 885 (1990); United Steelworkers
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v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989). “Rather, the motion may,
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and should, be granted so long as whatever is before the District Court demonstrates that
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the standard for the entry of judgment, as set forth in Rule 56(c), is satisfied.” Lujan, 497
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U.S. at 885 (quoting Celotex, 477 U.S. at 323).
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Once the moving party meets the requirements of Rule 56, the burden shifts to the
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party resisting the motion, who “must set forth specific facts showing that there is a genuine
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issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Without
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specific facts to support the conclusion, a bald assertion of the “ultimate fact” is
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insufficient. See Schneider v. TRW, Inc., 938 F.2d 986, 990-91 (9th Cir. 1991). A material
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fact is one that is relevant to an element of a claim or defense and the existence of which
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might affect the outcome of the suit. The materiality of a fact is thus determined by the
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substantive law governing the claim or defense. Disputes over irrelevant or unnecessary
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facts will not preclude a grant of summary judgment. T.W. Electrical Service, Inc. v.
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Pacific Electrical Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson,
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477 U.S. at 248).
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When making this determination, the court must view all inferences drawn from the
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underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475
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U.S. at 587. “Credibility determinations, the weighing of evidence, and the drawing of
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legitimate inferences from the facts are jury functions, not those of a judge, [when] ... ruling
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on a motion for summary judgment.” Anderson, 477 U.S. at 255.
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B. Analysis
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Defendant argues it is entitled to summary judgment because Plaintiffs are unable,
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as a matter of law, to demonstrate that any of Defendant’s calling technologies constitute
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an automatic telephone dialing system (“ATDS”) under the Telephone Protection Act
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(“TCPA”). Specifically, Defendant argues there can be no TCPA liability where the
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telephone number in question was not randomly or sequentially generated, and Plaintiffs
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expressly disclaim that any of the numbers called were generated with a random or
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sequential number generator. Defendant also contends its calling technology used to call
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Plaintiffs, Asimut, PRANet, and CCT, are not capable of automatic, non-manual dialing
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and, therefore, Plaintiffs cannot meet their burden to show Defendant used an ATDS to
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place those calls. Defendant further argues Plaintiff cannot recover treble damages because
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there was no violation and, Defendant was at all times acting on a “reasonable
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interpretation” that the TCPA required random or sequential dialing and did not know that
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the Asimut technology it used to call Plaintiffs could be considered an ATDS.
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In opposition, Plaintiffs contend the Court should limit the issues of the summary
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judgment motion to common issues relating to the nature of Defendant’s telephone dialing
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systems and the only issue before the Court is whether there is a genuine issue of material
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fact as to the nature of Defendant’s telephone dialing systems. They argue Defendant fails
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to demonstrate the dialing systems do not use a random or sequential number generator to
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store numbers in the dialing process. They further contend Defendant’s argument that its
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systems did not have the ability to randomly or sequentially generate telephone numbers is
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not relevant because Plaintiffs argue Defendant’s system had the ability to store numbers
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using a random or sequential number generator.
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This Court previously determined, based upon the Supreme Court’s decision in
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Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021), the definition of an autodialer under the
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TCPA does not concern systems that randomly or sequentially store and dial numbers from
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a list that is generated in a non-random and non-sequential way. See Order Denying Plas’
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Application to Conduct Discovery at 6-7 (Doc. No. 843). Plaintiffs disagree with the
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Court’s determination. Since the Court’s previous decision and during the pendency of the
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instant motion for summary judgment, the Ninth Circuit has concluded that “an ‘automatic
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telephone telephone dialing system’ must generate and dial random or sequential telephone
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numbers under the TCPA’s plain text.” Borden v. eFinancial, LLC, 53 F4th 1230, 1233
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(9th Cir. 2022); see also Brickman v. United States, 56 F.4th 688 (9th Cir. 2022).
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Plaintiffs provide no evidence that the numbers called were randomly or sequentially
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generated and, in fact, acknowledge they were not. See Amended Complaint ¶¶ 25, 37
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(Doc. No. 484) (Plaintiffs’ allegation that the numbers dialed were obtained from skip-
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tracing services.); Motion to Open Discovery Hearing Transcript 3:12–15 (Doc. No. 804)
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(“Obviously, this is a debt collection type cause so they’re not making up ten-random digits
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of numbers; they have a database of numbers and they are calling from that database list.”).
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Accordingly, the undisputed evidence demonstrates Defendant did not utilize an ATDS
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and, therefore, Defendant is entitled to judgment.
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II. Motions to Exclude
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Defendant moves to exclude testimony of Plaintiffs’ expert Randall Snyder pursuant
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to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrel-Dow Pharmaceuticals,
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509 U.S. 579 (1993). Because the Court finds the undisputed evidence demonstrates
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Defendant did not utilize an ATDS based on Plaintiffs’ acknowledgment that the numbers
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dialed were not randomly or sequentially generated, and, therefore, does not reach any
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issue as to which the testimony is relevant, the Court denies Defendant’s motions to
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exclude as moot.
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CONCLUSION AND ORDER
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Based on the foregoing, IT IS HEREBY ORDERED:
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1.
Defendant’s motion for summary judgment (Doc. No. 850) is GRANTED;
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2.
Defendant’s motions to exclude (Doc. Nos. 673, 885) are DENIED as moot;
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3.
DATED:
The Clerk of Court shall enter judgment accordingly.
July 5, 2023
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_________________________________
JOHN A. HOUSTON
United States District Judge
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11md02295 JAH-BGS
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