Smith v. Stellar Recovery, Inc. et al

Filing 75

OPINION and ORDER Granting Plaintiff's 74 MOTION to Extend Time; Overruling Plaintiff's 72 Objections; Adopting 71 Report and Recommendation; Granting in Part and Denying in Part Plaintiff's 38 MOTION for Partial Summary Jud gment; Granting Defendants' 44 MOTION for Partial Summary Judgment; Denying Plaintiff's 49 MOTION to Strike; Denying Plaintiff's 58 MOTION to Strike; and Denying Defendants' 67 MOTION to Strike. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAKISHA SMITH,
Plaintiff,
Case No. 2:15-cv-11717
v.
HONORABLE STEPHEN J. MURPHY, III
STELLAR RECOVERY, INC., et al.,
Defendants.
/
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO EXTEND
TIME [74], OVERRULING PLAINTIFF'S OBJECTIONS [72],
ADOPTING REPORT AND RECOMMENDATION [71], GRANTING
IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL
SUMMARY JUDGMENT [38], GRANTING DEFENDANTS' MOTION FOR
PARTIAL SUMMARY JUDGMENT [44], DENYING PLAINTIFF'S MOTIONS
TO STRIKE [49, 58], AND DENYING DEFENDANTS' MOTION TO STRIKE [67]
Plaintiff LaKisha Smith brought a claim against Defendants Comcast Corporation,
Comcast of Detroit, LLC, and Stellar Recovery, Inc., alleging violations of the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692–1692p, the Telephone Consumer Protection
Act (TCPA), 47 U.S.C. §§ 151–231, and state laws. The Court referred all pretrial matters
to a magistrate judge, and the parties filed cross motions for partial summary judgment.
The magistrate judge submitted a Report recommending the Court grant in part and deny
in part Smith's motion, grant Defendants' motion, and deny both parties' motions to strike.
Smith objected. For the reasons below, the Court will overrule the objections and adopt the
Report.
BACKGROUND
The Report properly details the events giving rise to Smith's action against the
Defendants. See ECF 71, PgID 1936–40. The Court will adopt that portion of the Report.

LEGAL STANDARD
Federal Rule of Civil Procedure 72(b) governs review of a magistrate judge's report.
If the parties "serve and file specific written objections to the proposed findings and
recommendations," then the Court must review the report de novo. Fed. R. Civ. P. 72(b)(2).
A district court need not review portions of a report, however, to which no party has
objected. Thomas v. Arn, 474 U.S. 140, 153 (1985). "The district judge may accept, reject,
or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
The Court must grant a motion for summary judgment "if the movant shows that 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). The moving party must identify specific portions of the
record "which it believes demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met their
burden, the non-moving party may not simply rest on the pleadings, but must present
"specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)).
A fact is material if proof of that fact would establish or refute an essential element of
the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984).
A dispute over material facts is genuine "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In considering a motion for summary judgment, the Court must view the facts
and draw all reasonable inferences "in the light most favorable to the nonmoving party." 60
Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).
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DISCUSSION
As an initial matter, Defendants argue that Smith filed her objections late and the
Court should overrule them on that basis. Defendants are correct that Smith filed her
objections one day late. See Fed. R. Civ. P. 72(b)(2) (requiring a party to file objections
within 14 days of being served with a Report). After the late filing, however, Smith moved
for an extension of time. ECF 74. The Court will address the objections on the merits due
to the minimal additional time involved and the absence of any prejudice to Defendants.
Smith objects to the Report's conclusion with four arguments: (1) in Pozo v. Stellar
Recovery Collection Agency, Inc., No. 8:15-cv-929-T-AEP, 2016 WL 7851415 (M.D. Fla.
Sept. 2, 2016), the court did not consider the deposition testimony of two witnesses in
Smith's case, Kevin Stark and Kendra Vallarelli (mistakenly referred to as Racheal Vallarilli
in Smith's brief); (2) the Pozo court did not consider the supplemental authority filed by
Smith (ECF 70); (3) the Human Call Initiator (HCI) system is a predictive dialer and
therefore an automatic telephone dialing system (ATDS); and (4) the HCI system is
composed of several pieces of equipment which, when combined, form an ATDS. See ECF
72.
At the outset, Smith fails to identify which portions of the Report she believes to be
in error. Instead, she makes a general objection to the Report's recommendation to grant
partial summary judgment to Defendants. See ECF 72, PgID 1965 n.1. Her argument fails
to satisfy Rule 72(b)(2), which requires that an objecting party "file specific written
objections to the proposed findings and recommendations." "A general objection to the
entirety of the magistrate’s report has the same effects as would a failure to object."
Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Indeed,
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Smith's general objection asks the Court to duplicate the magistrate's role. "This duplication
of time and effort wastes judicial resources rather than saving them, and runs contrary to
the purposes" of referring the matter to the magistrate judge in the first place. Id.
Additionally, the magistrate judge warned Smith that "[a]ny objection must recite
precisely the provision of the Report and Recommendation to which it pertains" and that
"[f]ailure to file specific objections constitutes a waiver of any further right of appeal." ECF
71, PgID 1954. Smith disregarded both the Rules and the magistrate's order. Rather than
overruling her objection outright for lack of specificity, the Court will construe each of
Smith's arguments as an individual objection to determine whether her filing meets the
requirements of Rule 72.
I.

The Pozo Objections
Smith argues that the magistrate judge erred in the Report because the Pozo court

did not consider the testimony of two key witnesses: Kevin Stark, the Director of Product
Management for LiveVox, Inc., and Kendra Vallarelli, the Chief Analytics Officer for
Defendant Stellar Recovery. In support, Smith provides 32 numbered excerpts from the
Frady, Stark, and Vallarelli depositions—all of which are identical to excerpts that Smith
had submitted earlier in the case. ECF 70. Apart from reciting the same facts taken from
the depositions, Smith offers nothing to explain how the excerpts undermine the Pozo
decision. Nor does she identify a specific error in the Report.
And Smith's objection is flawed for another reason. The mere fact that the Pozo court
did not review the testimony in the current case does not render its opinion invalid. Courts
rarely have the opportunity to review exact testimony that will be offered in a future case.
Here, the magistrate judge ably applied the legal principles set forth in Pozo to the specific
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facts of this case, including Stark and Vallarelli's testimony. Smith does not allege that the
Report failed to consider Stark and Vallarelli's testimony. And in fact, the Report analyzed
the depositions in detail. See e.g. ECF 71, PgID 1946 ("[The magistrate judge] has
reviewed Mr. Stark’s testimony, and finds the analysis in Pozo still applies in light of the
description of the HCI system Mr. Stark provided."); id. at 1939–40 (analyzing Vallarelli's
description of the HCI system).
Next, Smith contends that Stellar's settlement renders the Pozo court's summary
judgment ruling invalid. In Pozo, Stellar settled the case immediately after the plaintiff
moved the court to reconsider its order granting summary judgment. But Smith offers no
reasons to explain her conclusion and the Court declines to "put flesh on [the] bones" of
Smith's skeletal argument. McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). The
Pozo opinion carries precedential value based on its sound reasoning and legal analysis,
regardless of whether the parties settled the matter after the opinion issued. Thus Smith's
objections to Pozo fail to identify a specific legal or factual error in the Report that would
mandate a different outcome on review.
II.

Predictive Dialer Objection
In her next objection, Smith argues that Stark admitted that the automated call

distributor (ACD) system had "predictive dialer functionality" which makes the ACD system
a "predictive dialer." ECF 72, PgID 1972 (quoting ECF 38-2, PgID 573). And since the FCC
has ruled that "a predictive dialer constitutes an automatic telephone dialing system," Smith
concludes that the ACD used in Stellar's HCI system is an automatic dialer under the
TCPA. ECF 72, PgID 1971 (citing In re Rules & Regulations Implementing the Telephone
Consumer Protection Act of 1991, Declaratory Ruling, 23 F.C.C. Rcd. 559, 566 ¶ 12, 2008
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WL 65485 (F.C.C. Jan. 4, 2008)). Smith argument fails, however, to identify a specific error
in the Report.
And, as the Report explained, the HCI system is characterized by one key factor that
separates it from autodialers: it requires human intervention—the clicker agent—to launch
an outgoing call. ECF 71, PgID 1945; see also ECF 38-2, PgID 567–68 (Stark's testimony
explaining that only when an "agent chooses to launch the call" can the HCI system make
an outgoing call). Since the "basic function" of an autodialer is the capacity to dial phone
numbers "without human intervention," and the HCI system lacks that capacity, the HCI is
not an autodialer. 2015 TCPA Order, 30 F.C.C.R. at 7973 (citation omitted). Based on
persuasive authority from federal courts around the nation, the statutory text, and the
binding regulations of the FCC, the Report correctly concluded that the HCI system is not
an autodialer under the TCPA.
III.

Components Objection
Smith contends that the components of the HCI system combined to form an

autodialer. She argues generally that the HCI system cannot function without its
components—a campaign database, an automatic call distributor, and a media server
pool—and that these components have autodialing capacity. Again Smith fails to object to
a specific portion of the Report.
In any event, the Report addressed and rejected Smith's argument. Stellar's HCI
system lacked the capacity to dial "without human intervention." 2015 TCPA Order, 30
F.C.C.R. at 7973 (citation omitted). The ACD system forwards a number to the clicker
agent, who makes the decision to launch the call by clicking a mouse or pressing an enter
key. ECF 38-2, PgID 568. The HCI system cannot place a call without the clicker agent's
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approval. Id. Smith fails to identify any specific error in the Report's conclusion that would
change the outcome on review.
CONCLUSION
The Court will grant partial summary judgment to Smith on her TCPA claims based
on the Defendants' calls from the Right Party Connect (RPC) dialing system. Two factual
questions related to Smith's damages remain before the Court: (1) whether Stellar "willfully
or knowingly" violated the TCPA by calling Smith using the RPC system, and thus whether
Smith may claim treble damages; and (2) the number of calls Stellar made using the RPC
system between July 18, 2014 and August 12, 2014. The Court will grant partial summary
judgment to the Defendants on Smith's TCPA claims based on calls made from the HCI
system. The Court will deny both parties' motions to strike.
ORDER
WHEREFORE, it is HEREBY ORDERED that Plaintiff's Motion to Extend Time to
File Objections [74] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Objections [72] are OVERRULED.
IT IS FURTHER ORDERED that the Report [71] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff's Motion for Partial Summary Judgment
[38] is GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that Defendants' Motion for Partial Summary
Judgment [44] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Motions to Strike [49, 58] are DENIED.

IT IS FURTHER ORDERED that Defendants' Motion to Strike [67] is DENIED.
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SO ORDERED.

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: March 13, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on March 13, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

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