Gary v. TrueBlue, Inc.
Filing
55
OPINION and ORDER Granting Defendants' Second 49 Second MOTION for Summary Judgment. Signed by District Judge Gershwin A. Drain. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN A. GARY,
Case No. 17-cv-10544
Plaintiff,
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
v.
TRUEBLUE, INC., ET AL.,
UNITED STATES MAGISTRATE JUDGE
ELIZABETH A. STAFFORD
Defendants.
/
OPINION AND ORDER GRANTING DEFENDANTS’ SECOND MOTION
FOR SUMMARY JUDGMENT [#49]
I. INTRODUCTION
Plaintiff Kevin Gary initiated this action against Defendants TrueBlue, Inc.
(d/b/a People Ready, Inc. and Labor Ready, Inc.) on February 17, 2017. Dkt. No.
1. In his Complaint, Plaintiff alleged Defendants used prohibited equipment to
send him over one-thousand text messages, in violation of 47 U.S.C. §
227(b)(1)(A)(iii), otherwise known as the Telephone Consumer Protection Act
(“TCPA”). Id. at pp. 6-7 (Pg. ID 6-7).
On June 21, 2018, Defendants filed a Motion for Summary Judgment. Dkt.
No. 38.
With leave from the Court, Defendants filed a Second Motion for
Summary Judgment on August 28, 2018. Dkt. No. 49. Plaintiff filed a Response
on September 4, 2018. Dkt. No. 50. Defendants filed a Reply on September 18,
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2018. Dkt. No. 52. The Court heard oral argument on October 10, 2018. Dkt. No.
54.
Present before the Court is Defendants’ Second Motion for Summary
Judgment [#49].
For the reasons set forth below, the Court will GRANT
Defendants’ Motion.
II. BACKGROUND
People Ready, the successor entity of Labor Ready, is a staffing company
that helps place unemployed blue-collar workers with job opportunities in the local
community. Dkt. 49-1, p. 2 (Pg. ID 744). Traditionally, workers would arrive at
the labor hall around 5:00 a.m. each morning to see whether there was any work
available, and jobs would be assigned on a first-come, first-served basis. Id. at p. 3
(Pg. ID 745). Today, People Ready uses a messaging platform called WorkAlert
to inform workers about potential jobs via text message. Id. Hence, workers no
longer need to come into the office to learn about job opportunities. Id.
If a People Ready branch employee opts to use WorkAlert to fill an open
position, the first step in placing a worker with a customer is for the employee to
manually open the WorkAlert web browser application on their desktop computer
and enter their log-in credentials. Id. at p. 4 (Pg. ID 746). Next, the branch
employee is directed to the “work search” screen, where they must input criteria to
search for potential workers. Id. at pp. 4-5 (Pg. ID 746-47). The branch employee
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then hits the “search” button, which returns a list of potential workers to whom the
branch employee can consider sending a text message. Id. at p. 5 (Pg. ID 747).
Once the branch employee is satisfied with the pool of potential workers, the
employee will manually compose a text message that will go out to the workers
who have opted into the WorkAlert program. Id.
According to Defendants’ Director of Platform Solutions -- Cindi Knutson -there is no way to send a text message through the WorkAlert system without the
several steps of human intervention described above. Id. at p. 6 (Pg. ID 748).
Even more, WorkAlert lacks the capability to randomly or sequentially text
potential workers. Id.
Plaintiff applied to join Labor Ready on July 7, 2011. Dkt. No. 49-2, p. 6-7
(Pg. ID 754-55). When he did so, Plaintiff completed and signed an application
form that contained a provision entitled, “Consent for Telephone Contact.” Id. at
p. 7 (Pg. ID 755).
That provision stated, “I give Labor Ready my express
permission and consent to call my phone number that I provided on my
employment application for the sole purpose of alerting me to new job
opportunities at Labor Ready.” Id.
Since joining Labor Ready, Plaintiff asserts he has received over 5,600 text
messages from Defendants through the WorkAlert system. Dkt. No. 50, p. 7 (Pg.
ID 945). Plaintiff further asserts that on several occasions he revoked his consent
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to continue receiving those text messages. Id. In fact, on September 17, 2016,
February 23, 2017, and February 26, 2017, Plaintiff texted the WorkAlert system,
“Please don’t contact me anymore.” See Dkt. No. 50-4. In addition, Plaintiff has
two documents from Defendants’ branch employee -- Kristina Bellizzi -- dated
February 22, 2017, indicating a request that Plaintiff be opted out of receiving
messages through the WorkAlert system.
See Dkt. No. 50-8.
Despite this,
Plaintiff has continued to receive text messages from WorkAlert. See Dkt. No. 505, pp. 29-51 (Pg. ID 1002-24); Dkt. No. 50-6. At the same time, it appears that
Plaintiff opted back in to receiving text messages and continued to accept jobs via
WorkAlert. See id.
Through the discovery process, Plaintiff learned that Defendants’ WorkAlert
system acts in conjunction with a third-party aggregator called mBlox. Dkt. No.
50, p. 7 (Pg. ID 945). According to Defendants, “Text messages leave Work Alert,
go to mBlox (SMS provider) and are then sent to each worker’s wireless carrier to
be delivered to the individual’s cell phone.” Dkt. No. 50-9, p. 2 (Pg. ID 1072).
Plaintiff now claims that mBlox is a fully-automated-text-messaging system
regulated by the TCPA. See Dkt. No. 50, p. 7 (Pg. ID 945). And because
Defendants’ WorkAlert system acts in conjunction with mBlox, Plaintiff suggests
Defendants’ text messages violate section 227(b)(1)(A)(iii) of the TCPA. See id.
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III. LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) empowers a court to grant summary
judgment if “there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law.”
Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). The evidence and all reasonable
inferences must be construed in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1968).
There is a genuine issue of material fact “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). Mere allegations or denials in the non-movant’s
pleadings will not suffice, nor will a mere scintilla of evidence supporting the nonmoving party. Id. at 248, 252. Rather, there must be evidence on which a jury
could reasonably find for the non-movant. Id. at 252.
IV. DISCUSSION
A. The Telephone Consumer Protection Act
Congress enacted the TCPA in response to consumer complaints about
unwanted calls and text messages from telemarketers. ACA Int’l v. FCC, 885 F.3d
687, 691 (D.C. Cir. 2018). The TCPA, in relevant part, prohibits any person from
using an automatic telephone dialing system to make a call or send a text message
to another person without that person’s consent. See 42 U.S.C. § 227(b)(1)(A)(iii);
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Keating v. Peterson’s Nelnet, LLC, 615 Fed. Appx. 365, 370 (6th Cir. 2015).
Under the Act, an automatic telephone dialing system is defined as equipment with
the “capacity” (1) to store or produce telephone numbers to be called, using a
random or sequential number generator, and (2) to dial such numbers. 42 U.S.C. §
227(a)(1).
Congress delegated authority to the Federal Communications Commission
(“FCC”) to prescribe regulations enforcing the TCPA. See 42 U.S.C. § 227(b)(2).
Since then, the FCC has issued a series of orders and rulings. See e.g., In re Rules
and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd.
14014 (F.C.C. July 3, 2003); In re Rules and Regulations Implementing the Tel.
Consumer Prot. Act of 1991, 23 FCC Rcd. 559 (F.C.C. Jan. 4, 2008); In re Rules
and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd.
7961 (F.C.C. July 20, 2015) (hereinafter “2015 Ruling”).
Relevant to the case at hand, the FCC’s 2015 Ruling sought to clarify two
open questions: (1) what did it mean for a telephone system to have the “capacity”
to perform the autodial functions enumerated in section 227(a)(1) of the TCPA;
and (2) what did those functions entail? See 2015 Ruling, 30 FCC Rcd. at 797475.
First, the FCC determined that the term “capacity” referred not only to a
system’s present capabilities, but also to its “potential functionalities.”
2015
Ruling, 30 FCC Rcd. at 7974. Second, the FCC noted that dialing equipment
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could store or produce, and dial random or sequential numbers, and that this
included calling from a set list. Id. at 7971-72. Further, the FCC reaffirmed that a
basic function of an autodialer is having the ability to dial thousands of numbers in
a short period of time without human intervention. Id. at 7975. But the FCC failed
to clarify whether a system that did require human intervention could still qualify
as an automatic telephone dialing system. See id.
Faced with confusion, the D.C. Circuit recently set aside the above portions
of the FCC’s decision. See ACA Int’l, 885 F.3d at 692; 28 U.S.C. § 2342(1) (“The
court of appeals . . . has exclusive jurisdiction to enjoin, set aside, suspend (in
whole or in part), or to determine the validity of – all final orders of the Federal
Communications Commission.”). The D.C. Circuit held:
The order’s lack of clarity about which functions qualify a device as an
autodialer compounds the unreasonableness of the Commission’s expansive
understanding of when a device has the “capacity” to perform the necessary
functions. We must therefore set aside the Commission’s treatment of those
matters.
ACA International, 885 F.3d at 703.
In ACA International, eleven petitions for review of the FCC’s 2015 Ruling
were consolidated in the D.C. Circuit. Sixth Circuit case law suggests that this
makes the D.C. Circuit’s decision to set aside the 2015 Ruling binding on this
Court. Indeed, in Sandusky Wellness Center, LLC v. ASD Specialty Healthcare,
Inc., the Sixth Circuit recognized that once the Multidistrict Litigation Panel
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assigned petitions challenging an FCC rule to the D.C. Circuit, that court became
the sole forum for addressing the validity of the rule. See 863 F.3d 460, 467 (6th
Cir. 2017) (citing Peck v. Cingular Wireless, LLC, 535 F.3d 1053, 1057 (9th Cir.
2008)). The same should hold true here.
In short, because of the D.C. Circuit’s holding in ACA International, this
Court need not defer to the FCC’s understanding of the capacity and functions of
an autodialer under the TCPA. See Keyes v. Ocwen Loan Servicing, LLC, 2018
WL 3914707, at *6 (E.D. Mich. Aug. 16, 2018) (holding this Court need not defer
to the FCC’s declarations regarding the capacity and functions of an automatic
telephone dialing system). Since the ACA International decision, there has been
no Sixth Circuit case law interpreting the definition of an autodialer. Therefore,
the Court must look to the plain language of the statute to resolve the pending
motion. See Marshall v. CBE Grp., Inc., 2018 WL 1567852, at *5 (D. Nev. Mar.
30, 2018) (holding in light of the ACA International decision, the court will not
stray from the statutory language of the TCPA).
B. Defendants’ Motion for Summary Judgment
Here, Defendants have moved for summary judgment raising four
arguments. Dkt. No. 49. First, Defendants argue summary judgment is warranted
because the TCPA does not prohibit the texting of employee-benefitting job offers.
See Dkt. No. 49, p. 19 (Pg. ID 734). Second, Defendants argue its WorkAlert
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system is not an automatic telephone dialing system as defined by the plain
language of the TCPA. See id. at p. 21 (Pg. ID 736). Third, Defendants argue
WorkAlert is not an automatic telephone dialing system under the FCC’s now
vacated understanding of the TCPA because the system requires several steps of
human intervention to send text messages. See id. at p. 24 (Pg. ID 739). Finally,
Defendants argue Plaintiff consented to its text messages, thus establishing a
complete defense. See id. at p. 26 (Pg. ID 741).
Here, the Court agrees that Defendants’ WorkAlert system does not qualify
as an automatic telephone dialing system under the plain language of the TCPA.
Accordingly, Defendants are entitled to summary judgment.
1. Defendants are Entitled to Summary Judgment because there is no
Evidence that its WorkAlert System is an Automatic Telephone Dialing
System as Defined by the TCPA.
Through the discovery process, Plaintiff learned, “Text messages leave
Work Alert, go to mBlox (SMS provider) and are then sent to each worker’s
wireless carrier to be delivered to the individual’s cell phone.” See Dkt. No. 50-9.
Hence, Plaintiff no longer asserts Defendants’ WorkAlert system by itself qualifies
as an automatic telephone dialing system. See Dkt. No. 50, p. 7 (Pg. ID. 945).
Instead, he argues Defendants combine its system with a third-party aggregator -mBlox -- whose equipment is fully automated. See id. This combination, Plaintiff
suggests, makes Defendants liable under the TCPA. See id. In support, Plaintiff
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cites to the FCC’s 2015 Ruling where the Commission held, “parties cannot
circumvent the TCPA by dividing ownership of dialing equipment.” See id. at p.
10 (Pg. ID 948); 2015 Ruling, 30 FCC Rcd. at 7977.1 But despite this ruling,
Plaintiff fails to demonstrate that WorkAlert, when combined with mBlox, has the
capacity to randomly or sequentially dial or text phone numbers.
a. There is no Evidence that WorkAlert and/or mBlox can Store or Produce
Numbers to be Called, Using a Random or Sequential Number Generator.
To qualify as an automated telephone dialing system under the TCPA, a
piece of equipment must have the capacity to (1) store or produce telephone
numbers to be called, using a random or sequential number generator, and (2) dial
such numbers. 42 U.S.C. § 227(a)(1).
Here, Defendants presented an affidavit from its Director of Platform
Solutions stating WorkAlert lacks the capability to randomly or sequentially dial or
text potential workers. See Dkt. 49-1, p. 6 (Pg. ID 748). Still, Plaintiff claims
Defendants’ third-party aggregate, mBlox, has this capacity because mBlox uses
programs such as “Java API, XML, and SMPP servers.” See Dkt. No. 50, p. 9 (Pg.
ID 947). However, Plaintiff’s evidence in support of this claim is lacking.
1
This portion of the FCC’s 2015 Ruling was not set aside in ACA International.
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Plaintiff first offers a document titled, “Technical Specifications.” Dkt. No.
50-10, p. 2 (Pg. ID 1074).
The document, among other things, contains the
following text box:
Feature:
Supported:
Additional Information:
API Options
√
Java API, XML, or
SMPP
Id. Plaintiff contends that this document shows mBlox uses Java API, XML, and
SMPP. Dkt. No. 50, p. 9 (Pg. ID 947).
Next, Plaintiff attempts -- unsuccessfully -- to explain Java API and SMPP
through a series of documents he obtained from the Internet.
For example,
Plaintiff offers an excerpt of an article from dzone.com titled, “Random Number
Generation in Java.” Dkt. No. 50-12. Plaintiff provides no additional commentary
on this article, and therefore, asks the Court to make the inferential leap that this
document proves mBlox can randomly generate and text phone numbers.
In addition, Plaintiff offers a document from quora.com titled, “How do
SMPP server works?” Dkt. No. 50-11, p. 3 (Pg. ID 1081). Remarkably, this
document comes from an Internet forum where, it appears, anyone with an Internet
connection can log on and answer posted questions. See id. Plaintiff provides no
information about who these individuals on the forum are or the basis for their
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knowledge.
Moreover, Plaintiff specifically directs the Court’s attention to a
user’s answer that reads: “SMPP is an application layer protocol, [w]hich is used in
telecom industry to message transfer.” However, even if true, this in no way
demonstrates that mBlox has the capacity to randomly or sequentially dial or text
phone numbers.
As Defendants correctly note, Plaintiff had the opportunity to add mBlox as
a co-defendant, conduct discovery to see how mBlox interacts with Defendants’
WorkAlert system, and even obtain evidence directly from mBlox to see how these
Java API and SMPP programs operate within its system. See Dkt. No. 52, p. 6 (Pg.
ID 1098).
Plaintiff did none of these things.
In contrast, Defendants have
presented evidence that WorkAlert lacks the capability to randomly or sequentially
dial or send text messages. See Dkt. 49-1, p. 6 (Pg. ID 748). Hence, even viewing
all the evidence in a light most favorable to Plaintiff, no reasonable juror could
decide in Plaintiff’s favor on this issue.
b. WorkAlert and/or mBlox are not Automatic Telephone Dialing Systems
Irrespective of Whether they have Automated Functions.
In a now vacated portion of its 2015 Ruling, the FCC reaffirmed that basic
functions of an autodialer are to “dial numbers without human intervention” and
“dial thousands of numbers in a short period of time.” 2015 Ruling, 30 FCC Rcd.
at 7975. Keying on this language, Plaintiff raises three arguments.
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First, Plaintiff argues that WorkAlert can operate without human
intervention because its third-party aggregate, mBlox, allegedly uses a program
called “Auto Retry” that resends undelivered text messages for up to a seventytwo-hour period.
Dkt. No. 50, p. 9 (Pg. ID 947).
Second, Plaintiff argues
WorkAlert and/or mBlox can operate without human intervention because he
received text messages about job opportunities when Defendants’ branch office
was closed. Id. Finally, Plaintiff argues WorkAlert and/or mBlox can operate
without human intervention because he has received immediate responses from the
system in less than a second. See Dkt. No. 50, p. 15 (Pg. ID 953). Specifically,
Plaintiff references two occasions where he received automated opt-out messages
from WorkAlert. See Dkt. No. 50-7.
With respect to this last argument, the Court has already held that automatic
opt-out text messages are generally not actionable under the TCPA. See Dkt. No.
45, p. 21 (Pg. ID 697) (citing 2015 Ruling, 30 FCC Rcd. at 8015). Indeed:
A one-time text sent in response to a consumer’s request for information
does not violate the TCPA or the Commission’s rules so long as it: (1) is
requested by the consumer; (2) is a one-time only message sent immediately
in response to a specific consumer request; and (3) contains only the
information requested by the consumer with no other marketing or
advertising information.
2015 Ruling, 30 FCC Rcd. at 8016. But more to the point, the plain language of
the TCPA does not prohibit the use of devices with automated functions. See 42
U.S.C. § 227(a)(1). Instead, the statute requires a showing that the system has the
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capacity to randomly or sequentially dial or text phone numbers. See id. Here,
Plaintiff has not made such a showing.
c. That WorkAlert and/or mBlox Operate via a Web Browser does not
make these Systems Automatic Telephone Dialing Systems Under the
TCPA.
The ACA International did not set aside the FCC’s 2015 Ruling in its
entirety. In one portion of the Ruling that remains good authority today, the FCC
stated: “The equipment used to originate Internet-to-phone text messages to
wireless numbers via email or via a wireless carrier’s web portal is an ‘automatic
telephone dialing system’ as defined in the TCPA.” In re Rules and Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 8018
(F.C.C. July 20, 2015). The FCC reasoned, “the equipment used to send these
messages . . . must necessarily store, or at least have the capacity to store, large
volumes of numbers to be called.”
Id.
Further, “Even assuming that the
equipment does not actually use a random or sequential number generator, the
capacity to do so would make it subject to the TCPA.” Id. at 8019.
From this, Plaintiff argues that because WorkAlert sends messages through a
web browser, this is a categorical violation of the TCPA. See Dkt. No. 50, p. 1314 (Pg. ID 951-52). The Court will disagree. While there is no Sixth Circuit case
law addressing this issue, the Northern District of Illinois squarely rejected this
argument in Blow v. Bijora, Inc. 191 F. Supp. 3d 780, 788-89 (N.D. Ill. 2016).
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At issue in Blow was whether the defendant violated the TCPA by using a
software-based messaging transmission platform to send its customers text
messages. Id. at 782-83. There, it was undisputed that sending a text through the
messaging platform required multiple steps of human intervention. See id. at 783.
For example, the defendant’s employees had to manually log in to the system,
enter the phone number(s), and draft the text message. Id. Still, the plaintiff
argued that the FCC’s 2015 Ruling established automatic liability under the TCPA
for any person using an Internet-to-phone messaging platform. Id. at 788. The
district court disagreed. Id. at 788-89.
The district court emphasized, “While the 2015 FCC Order expanded the
definition of an ATDS, the Order did not make a blanket proclamation that all
internet-to-phone platforms are autodialers categorically.
Instead, the FCC
explicitly stated that whether a particular piece of equipment was an ATDS was a
‘case-by-case determination.’” Id. Ultimately, the district court concluded that the
defendant did not violate the TCPA because there was no evidence that the
messaging platform had the capacity to store or generate numbers -- whether
randomly, sequentially, or from a defined list -- on its own, and without human
intervention. Id. at 789. This Court finds Blow persuasive.
Here, like in Blow, there is no evidence in the record that WorkAlert and/or
mBlox has the capacity to randomly or sequentially text numbers, as required by
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the plain language of the TCPA. See id. To the contrary, Defendants’ Director of
Platform Solutions explicitly stated that WorkAlert lacks this capability. See Dkt.
No. 49-1, p. 6 (Pg. ID 748).
Hence, Defendants’ use of these web-based
messaging platforms does not automatically violate the statute.
This conclusion is consistent with the overall framework of the ACA
International decision. 885 F.3d 387. Indeed, it appears that the FCC’s 2015
Ruling presumed Internet-to-text messaging platforms could be automatic
telephone dialing systems under the TCPA because they have the potential
“capacity” to use a random or sequential number generator. See 2015 Ruling, 30
FCC Rcd. at 8018-19. But in ACA International, the D.C. Circuit explicitly set
aside the FCC’s expansive definition of the term “capacity.” 885 F.3d at 703.
Instead, the D.C. Circuit emphasized:
the question whether equipment has the “capacity” to perform functions of
an ATDS ultimately turns less on labels such as “present” and “potential”
and more on considerations such as how much is required to enable the
device to function as an autodialer.
Id. at 696.
Here, there is simply no evidence in the record demonstrating
WorkAlert and/or mBlox either has or could have this capacity.
Moreover, it is unclear that WorkAlert and/or mBlox are even the type of
Internet-to-phone text messaging platforms contemplated by the FCC’s 2015
Ruling. See 2015 Ruling, 30 FCC Rcd. at 8018-19 (finding the equipment at issue
stores and produces the wireless telephone numbers to be called, and it does so
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using random or sequential number generators to populate potential domain name
addresses); Derby v. AOL, Inc., 2015 WL 5316403, at *5 (N.D. Cal. Sept. 11,
2015) (holding such a system involves messages that originate as electronic mail
(e-mail) and are sent to a combination of the recipient’s unique telephone number
and the wireless provider’s domain name). Here, there is simply no evidence in
the record showing WorkAlert and/or mBlox can operate in this manner.
Accordingly, Defendants are entitled to summary judgment.
2. Because there is no Evidence that Defendants’ WorkAlert System or its
Third-Party Aggregate are Automatic Telephone Dialing Systems Under
the TCPA, Defendants’ Remaining Arguments are Immaterial.
Defendants raised a total of four arguments in support of its summary
judgment motion.
The Court agreed that WorkAlert and/or mBlox are not
automatic telephone dialing systems as defined by the plain language of the TCPA.
Hence, it is not necessary to reach the merits of Defendants’ remaining arguments.
V. CONCLUSION
For the reasons discussed herein, the Court will GRANT Defendants’
Second Motion for Summary Judgment [#49].
IT IS SO ORDERED.
Dated:
October 11, 2018
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, October 11, 2018, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager Generalist
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