Lee v. Loandepot.com, LLC
MEMORANDUM AND ORDER granting 105 Motion for Judgment. Signed by District Judge Eric F. Melgren on 2/14/2017.Mailed to pro se party Leon Lee by regular mail (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 14-1084-EFM
MEMORANDUM AND ORDER
Plaintiff Leon Lee brought this action against Defendant loanDepot.com, LLC
(“loanDepot”), alleging violations of the Telephone Consumer Protection Act (“TCPA”).
Specifically, he alleged violations of 47 U.S.C. § 227(b)(1)(A)(iii), which prohibits the use of
automatic telephone dialing system (“ATDS”) to call a cell phone without the called party’s prior
consent. Lee claimed that loanDepot employed the use of a predictive dialer—which he argues
is an ATDS—to call his cell phone ten times without his consent. Lee acted pro se throughout
The case was called for trial before a jury on February 7, 2017. At the close of Lee’s
evidence, loanDepot moved for judgment as a matter of law under Rule 50 of the Federal Rules
of Civil Procedure on the grounds that Lee failed to present any evidence regarding its alleged
use of an ATDS. The Court agreed, noted that it would grant loanDepot’s motion, and dismissed
the jury. Counsel for loanDepot indicated that she would reduce her motion to writing and file
the written motion forthwith. That written motion has been filed (Doc. 105), and provides the
Court an opportunity to memorialize its holding.
I. Evidence Presented at Trial
Lee and his wife both testified; Lee also read two depositions to the jury. Through this
testimony, he presented evidence that he had received ten calls from loanDepot to his cell phone.
He also testified that he had not consented to receive the calls. But neither the live testimony nor
the depositions contained any evidence that loanDepot used an ATDS in making the calls.
Before resting his case, Lee tried to admit an affidavit that loanDepot had attached to a motion
filed almost two year prior to the trial. In the affidavit, a loanDepot employee described the
company’s dialing system as a “predictive dialer.” When Lee moved to admit the affidavit,
loanDepot objected, arguing that Lee had not laid proper foundation. The Court agreed and gave
Lee an opportunity to lay foundation, which he was unable to do. After failing to admit the
affidavit, Lee rested his case. At that point, loanDepot moved for judgment as a matter of law.
II. Legal Standard
Rule 50 of the Federal Rules of Civil Procedure states:
If a party has been fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may . . . grant a motion for judgment as a
matter of law against the party on a claim or defense that, under the controlling
law, can be maintained or defeated only with a favorable finding on that issue.
Judgment as a matter of law is only appropriate if “construing the evidence and all inferences in
the light most favorable to the nonmoving party, ‘the court is certain the evidence conclusively
favors [the moving] party such that’ no reasonable jury could ‘arrive at a contrary verdict.’ ”1
47 U.S.C. § 227(b)(1)(A)(iii). To prevail on such a claim, Lee had the burden of proving the
following elements by a preponderance of the evidence: (1) loanDepot called Lee’s cellular
telephone; (2) using an ATDS; (3) without Lee’s prior consent.2 Because Lee was unable to lay
foundation as to the admissibility of the loanDepot’s affidavit, his case-in-chief presented no
evidence regarding loanDepot’s dialing system. Accordingly, Lee failed to present any evidence
regarding the ATDS element of his claim. The Court found that no reasonable jury could find
that loanDepot was liable under the TCPA, and granted loanDepot’s motion for judgment as a
matter of law.
Furthermore, the Court expressed doubts as to whether Lee would have survived
loanDepot’s motion even if he had laid proper foundation to admit loanDepot’s earlier affidavit.
The affidavit would suggest that loanDepot used a predictive dialer to call Lee. But it would not
have elaborated on whether loanDepot’s alleged predictive dialer could be properly characterized
Zisumbu v. Ogden Reg’l Med. Ctr., 801 F.3d 1185, 1198 (10th Cir. 2015) (quoting Weese v. Schukman, 98
F.3d 542, 547 (10th Cir. 1996)).
47 U.S.C. § 227(b)(1); see also Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir.
as an ATDS because it contained software that, when paired with certain software, had the
capacity to store or produce numbers.3
Because Lee was unable to admit any evidence regarding loanDepot’s use of an ATDS,
the Court finds that no reasonable jury could have found loanDepot liable under
47 U.S.C. § 227(b)(1). Accordingly, loanDepot is entitled to judgment as a matter of law.
IT IS THEREFORE ORDERED that loanDepot.com, LLC’s Motion for Judgment as a
Matter of Law (Doc. 105) is GRANTED.
IT IS SO ORDERED.
Dated this 14th day of February, 2017.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
The FCC has determined that a predictive dialers falls “within the meaning and statutory definition of
‘automatic telephone dialing equipment’ and the intent of congress” if it contains hardware that, when paired with
certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order,
or from a database of numbers. See In re: Rules & Regulations Implementing the TCPA, 30 F.C.C.R. 7961, 7971-72
(2015); In re: Rules & Regulations Implementing the TCPA, 18 F.C.C.R. 14014, 14091 (2003); see also Lee v.
loanDepot.com, LLC, 2016 WL 4382786, at *5-6 (D. Kan. Aug. 17, 2016).
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