Dobbin et al v. Wells Fargo Auto Finance, Inc. et al

Filing 134

MEMORANDUM Opinion and Order. Signed by the Honorable Matthew F. Kennelly on 6/14/2011. (ph, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TAMMY DOBBIN, COLLEEN DOBBIN,
and DOLORES HART,
Plaintiffs,
vs.
WELLS FARGO AUTO FINANCE, INC.,
SILICON VALLEY RECOVERY, INC.,
F-3 SOLUTIONS, LLC, and RELIABLE
RECOVERY SERVICES,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 10 C 268

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Plaintiffs Tammy Dobbin, Colleen Dobbin, and Dolores Fletcher Hart have sued
Wells Fargo Auto Finance (Wells Fargo), Silicon Valley Recovery, Inc., F3 Solutions,
LLC, and Reliable Recovery Services, alleging invasion of privacy, defamation, and
violations of the Illinois Collection Agency Act and the Illinois Consumer Fraud Act.
Tammy and Colleen Dobbin also assert, on behalf of a putative class, a claim against
Wells Fargo for violations of the Telephone Consumer Protection Act (TCPA), 47
U.S.C. § 227.
Defendants have filed various motions for summary judgment. In this decision,
the Court considers Wells Fargo’s motion for summary judgment on Tammy and
Colleen Dobbin’s TCPA claim. For the reasons stated below, the Court grants the
motion.

Background
In October 2006, Hart purchased a car for her granddaughter, Tammy Dobbin.
In connection with the purchase of the car, Hart signed a motor vehicle retail installment
contract that was assigned to Wells Fargo. Hart did not make the required payments
under the contract. Wells Fargo call center agents contacted plaintiffs in an attempt to
recover the overdue payments. Wells Fargo also hired the other three defendants to
collect the debt and repossess the car.
Plaintiffs allege that defendants, during the course of their collection efforts,
violated the Illinois Collection Agency Act (count 1), invaded plaintiffs’ right to seclusion
(count 2), wrongfully published private facts about them (count 3), engaged in unfair
competition in violation of the Illinois Consumer Fraud Act (count 4), and defamed them
(counts 5 and 6). Tammy and Colleen Dobbin also allege, on behalf of themselves and
a putative class, that Wells Fargo violated the TCPA by calling their cell phones without
permission using an automatic telephone dialing system (count 7). In this decision, the
Court addresses Wells Fargo’s motion for summary judgment on the TCPA claim.
The parties agree on the following facts. Wells Fargo uses a predictive dialer
called the “Conversations System” to communicate with customers. A predictive dialer
is a type of automatic telephone dialing system that uses generated, stored, or
otherwise entered phone numbers to automatically make outgoing telephone calls.
Wells Fargo’s predictive dialer also has the capacity to connect available call center
agents with successfully completed outbound calls.
One component of the Conversations System, the universal server, stores or
produces phone numbers to be dialed. The universal server then passes the numbers
2

on to the digital communications processor, which dials them. When an outbound call
is successfully dialed, the digital communications processor can either play a prerecorded message or connect the call to the desk phone of an available call center
agent.
Each agent at a Wells Fargo call center sits at a cubicle with a desk phone and a
computer. The computers support a software program called Magellan through which
call center agents are able to log into the universal server. Once an agent has logged
into the universal server, the Conversations System can connect the agent to
successfully completed outbound calls through the desk phone.
An agent may also make outbound phone calls by manually dialing a phone
number into the keypad of the desk phone. An agent need not log into the universal
server to make an outbound call in this manner. An agent may work part of the day by
using the desk phone’s keypad to manually dial calls and part of the day accepting
autodialed calls from the Conversations System. The agent uses the same desk phone
for all such calls.
Discussion
Summary judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c). On a motion for summary
judgment, the Court draws reasonable inferences in favor of the non-moving party.
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Summary
judgment is not appropriate ‘if the evidence is such that a reasonable jury could return a
3

verdict for the nonmoving party.’” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
The TCPA provides, in relevant part:
It shall be unlawful for any person 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 . . .
(iii) to any telephone number assigned to a . . . cellular telephone service.
47 U.S.C. § 227(b)(1) (emphasis added). 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.
Id. § 227(a)(1) (emphasis added). Tammy and Colleen allege that Wells Fargo violated
the TCPA by calling their cell phones without their consent “using” “equipment which
has the capacity” to autodial.
Wells Fargo has moved for summary judgment on the TCPA claim. It contends
that, though it has an automatic telephone dialing system, it did not use that system to
call Tammy or Colleen Dobbin’s cell phones. It thus argues that the calls were either
manually dialed or never made and therefore that plaintiffs’ TCPA claim fails.
I.

Admissibility of Wells Fargo computer records
In support of its motion, Wells Fargo submits a printout of computer records

accompanied by an affidavit from Wells Fargo call center planning and analysis
manager Jason Vyff. See Wells Fargo LR 56.1 Stat., Ex. 3. According to Vyff, the
4

records list all phone numbers Wells Fargo called using autodialing technology between
March 1, 2006 and February 7, 2011, with the exception of a small set of numbers
described below. Id. at 3. The records do not include Tammy and Colleen Dobbin’s
cell phone numbers. Id.
Plaintiffs do not dispute the contents of this evidence. In fact, they concede that
when the Wells Fargo Conversations System sends a phone number to the digital
communications processor to dial, the universal server makes a record of the action
regardless of whether anyone answers the call. They concede that the Conversations
System stores the records on computer servers. They also concede that the only way
the automatic dialer could make a call without leaving such a record was if the
automatic dialer dialed a particular number, a person answered, the automatic dialer
connected the person to a call center agent, the person told the agent to dial a second
number, and the agent did so. In such a case, the universal server would write over the
first number dialed and record only the second number. Plaintiffs do not suggest that
the calls Wells Fargo allegedly made to their cell phones were omitted from Wells
Fargo’s records in this manner. That would be unlikely, in any event, as plaintiffs allege
that Wells Fargo called Tammy Dobbin “repeatedly on her cell phone” and placed calls
to Colleen Dobbin on her cell phone and at work that were “very frequent and lasted
throughout 2008 and continued until as recently as April 2009.” 2d Am. Compl. ¶¶ 33,
38.
Plaintiffs do, however, challenge Wells Fargo’s contention that the records it has
offered are admissible under the “business records” exception to the hearsay rule.
“Federal Rule of Evidence 803(6) excepts certain ‘records of regularly conducted
5

activity’ from Rule 802's general ban on the admission of hearsay evidence.” United
States v. Borrasi, 639 F.3d 774, 779 (7th Cir. 2011) (quoting Fed. R. Evid. 803)(6)).1 “It
is well established that computer data compilations are admissible as business records
under [Rule] 803(6) if a proper foundation as to the reliability of the records is
established.” United States v. Briscoe, 896 F.2d 1476, 1494 (7th Cir. 1990) (citation
omitted). To establish a proper foundation at the summary judgment stage, “the party
seeking to offer the business record must attach an affidavit sworn to by a person who
would be qualified to introduce the record as evidence at trial, for example, a custodian
or anyone qualified to speak from personal knowledge that the documents were
admissible business records.” Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir.
2000) (citations omitted).
Plaintiffs do not dispute that Vyff’s affidavit satisfies the foundational
requirements for admission of the records. Instead, they contend that the evidence is
inadmissible because the records – that is, the computer printouts – were prepared for

1

Rule 803(6) provides:

The following are not excluded by the hearsay rule, even though the declarant is
available as a witness:
....
(6) Records of regularly conducted activity. A memorandum, report, record, or
data compilation, in any form of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business activity, and if
it was the regular practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown by the testimony of the
custodian or other qualified witness, unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness. . . .
Fed. R. Evid. 803(6).
6

this litigation. The Seventh Circuit has repeatedly held, however, that “[c]omputer data
compiled and presented in computer printouts prepared specifically for trial is
admissible under Rule 803(6), even though the printouts themselves are not kept in the
ordinary course of business,” as long as the underlying data was kept in the ordinary
course of business. United States v. Fujii, 301 F.3d 535, 539 (7th Cir. 2002) (emphasis
in original) (citing Briscoe, 896 F.2d at 1494-95); see also Alexian Bros. Health
Providers Ass’n v. Humana Health Plan, Inc., 608 F. Supp. 2d 1018, 1024 n.6 (N.D. Ill.
2009) (“[I]t has long been established that the test for admissibility of
computer-generated records focuses on whether the data compiled and presented in
computer printouts meet the requirements of Rule 803(6) – even when those printouts
have been ‘prepared specifically for trial.”) (emphasis in original) (citations and internal
quotation marks omitted). Vyff’s affidavit affirms that Wells Fargo kept the underlying
data that generated the reports in the ordinary course of its business. The Court
concludes that the records are admissible under Rule 803(6).
II.

TCPA requirements
Plaintiffs provide no evidence that Wells Fargo autodialed their cell phone

numbers and thereby concede that Wells Fargo manually dialed their cell phones if it
called them at all. Instead, plaintiffs assert that the TCPA prohibits even manually
dialed calls to cell phones made “using” “equipment which has the capacity” to autodial.
See 47 U.S.C. § 227(a)(1), (b)(1). This Court need not address whether the TCPA
covers such calls because plaintiffs fail to provide any evidence that Wells Fargo called
them using equipment that meets the statutory definition.

7

Plaintiffs’ evidence consists of a declaration by telecommunications technology
consultant Randall Snyder. See Wells Fargo LR 56.1 Stat., Ex. 2. Snyder does not
state that manually dialed calls made from Wells Fargo call center desk phones are
made using equipment with the capacity to autodial. Instead, he focuses on whether
Wells Fargo has an automatic telephone dialing system at all, a fact that Wells Fargo
concedes.
Snyder does conclude, however, that “the[] desk-phones are part of the
predictive dialer system.” Id. ¶ 17. He provides three rationales for this conclusion.
First, he reasons, “the Conversations System is the sum of its component parts, and
the desk-phones are physically connected to the Conversations System.” Id. Second,
he observes that, “[f]or manually and individually dialed outbound calls using
desk-phones, these desk-phones still maintain connectivity to the Conversations
System.” Id. Finally, he notes that, “for a call center agent to make use of the
Conversations System, that call center agent is required to have a desk-phone.” Id.
Plaintiffs concede, however, that Wells Fargo’s agents’ desk phones can also be
used independently of its predictive dialing technology – that is, while a call center
agent is not logged into the universal server. And plaintiffs do not suggest that the desk
phones have any capacity to autodial on their own. The Court takes as true Snyder’s
statements that the agents’ desk phones, including those apparently used to call
plaintiffs, were physically connected to Wells Fargo’s automatic dialing system and that
the system is used in conjunction with such phones. Snyder’s affidavit, however, does
not establish a genuine issue of fact regarding whether manually dialed calls made from
Wells Fargo call center desk phones are made “using” equipment with the capacity to
8

autodial within the meaning of the TCPA.
To summarize, there is no evidence that the calls to plaintiffs’ cell phones were
autodialed. Rather, the evidence is that the calls were dialed manually. Plaintiffs
concede that the desk phones can be used independently of the predictive dialing
technology and thus are not necessarily connected to the Conversations System when
an agent manually dials a call. Plaintiffs have offered no evidence from which a
reasonable jury could find that such a connection existed when the calls at issue here
were made. Given these circumstances, no jury reasonably could find based on the
evidence presented to the Court that Wells Fargo employees called plaintiffs’ cell
phones “using” equipment which has the capacity to autodial.
Conclusion
For the reasons stated above, the Court grants Wells Fargo’s motion for
summary judgment on count 7 of plaintiffs’ second amended complaint [docket no.
103].

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: June 14, 2011

9