Estrella v. LTD Financial Services, LP

Filing 43

ORDER granting 28 Motion for Partial Summary Judgment. Signed by Judge James D. Whittemore on 11/2/2015. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THOMAS ESTRELLA,
Plaintiff,

v.

Case No~ 8:14-cv-2624-T-27AEP

LTD FINANCIAL SERVICES, LP,
Defendant.
I

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ORDER
BEFORE THE COURT are Defendant's Motion for Partial Summary Judgment and
Incorporated Memorandum of Law (Dkt. 28), Plaintiffs response (Dkt. 35), Defendant's reply (Dkt.
40), and Defendant's Notice of Supplemental Authority (Dkt. 41). Also before the Court are
Plaintiffs Motion for Judicial Notice of Documents and Facts (Dkt. 31), and Defendant's response
(Dkt. 37). Upon consideration, Plaintiffs Motion for Judicial Notice of Facts (Dkt. 31) is
GRANTED in part and DENIED in part and Defendant's Motion for Partial Summary Judgment is
GRANTED.
I.

BACKGROUND
In Count VI of the Second Amended Complaint (Dkt. 20), Plaintiff claims that Defendant

placed non-emergency telephone calls to his cellular telephone using an automatic telephone dialing
system ("ATDS") or artificial or prerecorded voice without his prior consent in violation of the
Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(l)(A)(iii). Defendant argues
that it is entitled to summary judgment on Plaintiffs TCPA claim because each of the calls to

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Plaintiffs cellular phone were dialed manually and not through the use of an ATDS or artificial or
prerecorded voice.

II.

STANDARD
Summary judgment is appropriate where "there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56( a). "A genuine factual
dispute exists only if a reasonable fact-finder 'could find by a preponderance of the evidence that the
[non-movant] is entitled to a verdict."' Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th
Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material
ifitmay affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d
642, 646 (11th Cir. 1997). All facts are viewed and all reasonable inferences are drawn in the light
most favorable to the non-moving party, here, Plaintiff. See Scott v. Harris, 50 U.S. 372, 378 (2007).
"A nonmoving party, opposing a motion for summary judgment supported by affidavits
cannot meet the burden of coming forth with relevant competent evidence by simply relying on legal
conclusions or evidence which would be inadmissible at trial." Avirgan v. Hull, 93 2 F .2d 1572, 15 77
(11th Cir. 1991). As such, Plaintiffs evidence "cannot consist of conclusory allegations or legal
conclusions." Id.

III.

DISCUSSION
To succeed on his TCPA claim, Plaintiff must establish that Defendant placed calls to his

cellular phone using an ATDS or artificial or prerecorded voice. The TCPA prohibits the use of an
ATDS to call a telephone number assigned to a cellular telephone service (other than for purposes
of an emergency), without the prior express consent of the "called party." 47 U.S.C. §

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227(b)(l)(A)(iii). 1 "The term 'automatic telephone dialing system' means 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)(l). The definition of ATDS
includes predictive dialers. 2 2003 FCC Ruling at *46. The essential function of an ATDS is "the
capacity to dial numbers without human intervention." Id.
The FCC recently clarified "that parties cannot circumvent the TCPA by dividing ownership
of dialing equipment." In the Matter ofRules & Regulations Implementing the Tel. Consumer Prot.

Act of 1991, 30 F.C.C. Red. 7961, 2015 WL 4387780, at *9-10 (July 15, 2015) ("2015 FCC
Ruling"). In other words, various pieces of different equipment and software can be combined to
form an autodialer, even where two separate entities divide the storage and calling functions, "ifthe
net result of such voluntary combination enables the equipment to have the capacity to store or
produce telephone numbers to be called, using a random or sequential number generator, and to dial
such numbers." Id.
Defendant contends there is no evidence to support Plaintiffs allegation that Defendant

1 § 227(b)(l)(A)(iii)

provides, in pertinent part:

It shall be unlawful for any person within the United States, or any person outside the United
States if the recipient is within the United States(A) 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 automatic telephone dialing system or an artificial or
prerecorded voice-

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized
mobile radio service, or other radio common carrier service, or any service for which the called
party is charged for the call . . . .
The FCC defines "predictive dialer" as "an automated dialing system that uses a complex set of algorithms
to automatically dial consumers' telephone numbers in a manner that 'predicts' the time when a consumer will
answer the phone and a telemarketer will be available to take the call." In the Matter ofRules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Red. 14014, 2003 WL 21517853, at *4 n.31(July3,
2003) ("2003 FCC Ruling").
2

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placed calls to Plaintiffs cellular phone using an ATDS or artificial or prerecorded voice and that
the evidence is to the contrary. David John, Defendant's senior vice president, testified that the calls
at issue in this case were placed by employees of Defendant manually using a "point and click
function" (Dkt. 28-1, David John Dep. at40:13-41 :12; Dkt. 28-2, David John Dec. at~ 6). John also
averred that Defendant did not place any telephone calls to Plaintiff through the use of an artificial
or prerecorded voice (John Dec. at if 7). 3
In opposition, Plaintiff submits his unswom declaration (Dkt. 35-1 ). According to Plaintiff,
he "could tell" Defendant was using an ATDS to call him because when he answered there was "a
prolonged silence" and what he would describe as "delays and clicks," as well as prerecorded
messages (id. at iii! 8, 23). 4
As an initial matter, Defendant contends that Plaintiffs declaration cannot be considered at

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John testified that the only option for dialing a cellular phone to service a Citibank account (like
Plaintiff's) during the subject time frame was to dial manually through a "point and click function" (John Dep. at
39: 13-24). According to John, this means that the employee detennines which of the phone numbers on the account
they wish to call, selects the phone number using the mouse of their computer, clicks on the number, and the call is
then "launched" (Id).
4 Plaintiff also requests the Court take judicial notice of the FCC's 2015 Declaratory Ruling, FCC 15-72,
regarding the definition of autodialer, and a screen shot of a case study from Castel Connects' website (Dkt. 31 ).
Defendant does not oppose the request with respect to the FCC ruling.
Judicial notice of the screen shot of Castel Connects' website is not appropriate. Federal Rule of Evidence
201 provides that "[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (I) is
generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily detennined from
sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. Castel Connects' website describes a
case study of its predictive dialer product and discusses an interview with David John (Dkt. 31-2).
Plaintiff contends that the screen shot establishes the fact that Defendant used a predictive dialer to place
the alleged calls. Plaintiff fails to demonstrate that the infonnation on the website is "generally known within the trial
court's territorial jurisdiction" and makes no attempt to authenticate it. See Lodge v. Kondaur Capital Corp., 750
F.3d 1263, 1274 (11th Cir. 2014) (holding it was not an abuse of discretion to decline to consider a document
purportedly from a non-governmental website that listed foreclosure advertisements for properties unrelated to the
plaintiffs property); Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir. 2007) ("Thus courts should be wary of
finding judicially noticeable facts amongst all the fluff; private corporate websites, particularly when describing their
own business, generally are not the sorts of 'sources whose accuracy cannot reasonably be questioned,' Fed.R.Evid.
201(b), that our judicial notice rule contemplates."). Notwithstanding, nothing in this website establishes that
Defendant used Castel Connects' predictive dialer equipment to place calls to Plaintiffs cellular phone as discussed
infra.

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the summary judgment stage because it is unswom. Federal Rule of Civil Procedure 56 requires that
"[a]n affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). The advisory committee notes
to Rule 56 explain that under Rule 56(c)(4), "[a] formal affidavit is no longer required. 28 U.S.C.

§ 1746 allows a written unswom declaration, certificate, verification, or statement subscribed in
proper form as true under penalty of perjury to substitute for an affidavit." Fed. R. Civ. P. 56(c)(4),
advisory committee notes (2010 amendments).
Plaintiffs declaration is neither sworn nor in compliance with 28 U.S.C. § 1746 and cannot
be considered. See Dudley v. City of Monroeville, Ala., 446 Fed. App'x 204, 207 (11th Cir. 2011)
("Unswom statements do not meet the requirements of Rule 56, so the district court could not-and
properly did not-rely on the content of the [unswom] statement.") (citing Carr v. Tatangelo, 338
F.3d 1259, 1273 n. 27 (11th Cir. 2003)). 5
Notwithstanding, the pertinent statements in Plaintiffs unswom declaration do not establish
that Defendant used an A TDS-- "dialing equipment" that "has the capacity to store or produce, and
dial random or sequential numbers"--to dial his cellular phone. See 47 U.S.C. § 227(a)(1); 2015 FCC
Ruling at *5-6. Nor do they establish that the calls were made using a predictive dialer. There is no
evidence in the record demonstrating the type or the brand of equipment Defendant used to call

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There is also authority from other circuits that an unswom declaration or affidavit is not competent
summary judgment evidence if it does not otherwise comply with 28 U.S.C. § 1746. See, e.g., Peak ex rel. Peak v.
Cent. Tank Coatings, Inc., 606 Fed. App'x 891, 895 (10th Cir. 2015) (interpreting Rule 56(c)(4) to require "a
written unswom declaration, certificate, verification, or statement be subscribed in proper form as true under penalty
of perjury under 28 U.S.C. § 1746 to substitute for an affidavit."); Davis v. LeBlanc, 539 Fed. App'x 626, 628 (5th
Cir. 2013) (unswom affidavits that were not made under penalty of perjury did not constitute competent summary
judgment evidence); Tyler v. Cedar Hill Jndep. Sch. Dist., 426 Fed. App'x 306, 309 (5th Cir. 2011) ("It is a settled
rule in this circuit that an unswom affidavit is incompetent to raise a fact issue precluding summary judgment.").

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Plaintiffs cellular phone. To the contrary, the evidence demonstrates, at most, that the calls were
placed manually with the use of human intervention through a "point and click function."
Plaintiff argues that at the time Defendant placed calls to his cellular phone it had the present
capacity to use an ATDS and it is Defendant's burden to prove it did not use an ATDS or predictive
dialing system to make those calls (Dkt. 35 at 9). Plaintiff makes broad assertions that Defendant
uses Castel Connects and Avaya predictive dialing systems, which "are considered to have the
present capacity to autodial such that they are an automatic telephone dialing system" (Dkt. 35 at 3,
8-9). While that may be true, there is no evidence that Defendant used either of these predictive
dialing systems to place calls to Plaintiffs cellular phone. And again, to the contrary, John testified
that the calls were placed manually. 6 Finally, there is no foundation or support for Plaintiffs
conclusion that "clicks and delays" and "prolonged silences" means that an ATDS or predictive
dialer was being used to place the calls. 7 See Avirgan, 932 F.2d at 1577 (Plaintiffs evidence "cannot
consist of conclusory allegations or legal conclusions.").
In sum, Plaintiff has failed to create a material dispute over whether Defendant placed calls
to his cellular phone using an A TDS or artificial or prerecorded voice. His TCPA claim therefore
fails as a matter of law.
This Court's jurisdiction was invoked by Defendant based on the federal TCPA claim.
6

Plaintiff's reliance on Castel Connects' website is misplaced. Even accepting that the website establishes
that Defendant uses Castel Connects equipment in some aspect of its business, that is all it does. To conclude that
Defendant used an A TDS to call Plaintiff solely because Defendant may have had the capacity to use an ATDS
because it uses Castel Connects equipment requires far too much speculation. See Cordoba v. Dillard's, Inc., 419
F.3d 1169, 1181 (11th Cir. 2005) ("[U]nsupported speculation does not meet a party's burden of producing some
defense to a summary judgment motion. Speculation does not create a genuine issue of fact; instead, it creates a false
issue, the demolition of which is a primary goal of summary judgment.") (citation and quotation omitted). To be
sure, it is not even clear that all Castel Connects equipment constitutes an ATDS or predictive dialer.
1 Plaintiff's statement regarding prerecorded messages may create a material dispute over whether
Defendant placed calls to Plaintiff's cellular phone using a prerecorded or artificial voice. Nevertheless, as discussed
above, his unswom statement cannot be considered.

6

Pursuant to 28 U.S.C. § 1367, district court "may decline to exercise supplemental jurisdiction over
a claim under subsection (a) if ... the district court has dismissed all claims over which it has
original jurisdiction." Because summary judgment will be granted on Plaintiffs only federal claim,
and his only remaining claims arise under the Florida Consumer Collection Practices Act, Fla. Stat.

§ 559.55 et seq., the Court declines to exercise supplemental jurisdiction over these claims. See

Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999) ("If no federal claim
survives summary judgment, the court sees no reason why the other claims should not be dismissed
or remanded pursuant to 28 U.S.C. § 1367(c)(3).").
Accordingly,
1.

Plaintiffs Motion for Judicial Notice of Facts (Dkt. 31) is GRANTED in part and

DENIED in part.
2.

Defendant's Motion for Partial Summary Judgment (Dkt. 28) is GRANTED and the

Clerk is directed to ENTER FINAL JUDGMENT on Count VI of Plaintiffs Second Amended
Complaint in favor of Defendant and against Plaintiff.
3.

This remainder of this case is REMANDED to the Thirteenth Judicial Circuit in and

for Hillsborough County, Florida.
4.

The Clerk is directed to CLOSE the file.

DONE AND ORDERED this

2 .Jday ofNovember, 2015.

~~ Judge
~DITTEMORE
Umted States District
Copies to:
Counsel of Record
Clerk of Court, Thirteenth Judicial Circuit ih and for Hillsborough County, Florida

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