pollack v. Nations Recovery Center, Inc.

Filing 19

OPINION and ORDER Granting Defendants' 15 Motion for Summary Judgment. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN POLLACK,
Plaintiff,

Case No. 2:17-cv-10599

v.

HONORABLE STEPHEN J. MURPHY, III

NATIONS RECOVERY CENTER, INC.
and CORE RESOLUTIONS, INC.,
Defendants.
/
OPINION AND ORDER
GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [15]
Plaintiff Kevin Pollack, proceeding pro se, filed an Amended Complaint that alleged
Defendants Nations Recovery Center, Inc. and Core Resolutions, Inc. violated the
Telephone Consumer Protection Act, 47 U.S.C. § 227.1 Before the Court is Defendants'
Motion for Summary Judgment [15]. The Court has reviewed the briefs, and finds that a
hearing is unnecessary. See E.D. Mich. LR 7.1(f). For the reasons set forth below, the
Court will grant Defendants' motion.
BACKGROUND2
In December 2015, Defendants began calling Plaintiff on his cellular telephone from
multiple telephone numbers. ECF 7, PgID 40–41. During one call, Plaintiff said "hello" and
heard static prior to saying "hello" again, at which point an operator responded. Id. at 41.

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In the original complaint, Plaintiff also alleged a violation of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692d. ECF 1, PgID 9. The FDCPA claim is omitted from the
Amended Complaint. ECF 7. Plaintiff has proven to be sophisticated and though the Court
liberally construes a pro se party's filings, the Court nevertheless finds that Plaintiff has
clearly opted to drop the FDCPA claim.
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At the current stage of litigation, the Court recounts the facts in the light most favorable
to Plaintiff.

On several of the calls, Defendants' representatives acted rudely and failed to identify
themselves. Id. at 41–42. Plaintiff therefore brought suit and alleged that Defendants used
an automatic telephone dialing system or an artificial or prerecorded voice to call Plaintiff
without his consent in violation of the TCPA. Id. at 42.
STANDARD OF REVIEW
The Court must grant 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 its 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)) (emphasis omitted).
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).
DISCUSSION
To prevail, Plaintiff must show that Defendants used an automatic telephone dialing
system or an artificial or prerecorded voice (an "ATDS"). 47 U.S.C. § 227(b)(1). An ATDS
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is statutorily defined as equipment with the capacity to dial numbers that the equipment has
stored or produced using a random or sequential number generator. 47 U.S.C. § 227(a)(1).
The FCC has interpreted "capacity" as including both current and future ability. See In re
Rules & Regs. Implementing the TCPA of 1991, 30 FCC Rcd. 7961, 7974 (July 10, 2015).
Defendant Nations Recovery Center, Inc. asserted in an answer to an interrogatory3 that
the telephone system at issue has no present or potential capacity to automatically dial
telephone numbers and requires human intervention to initiate every call. ECF 15-1, PgID
82, 84. Defendant Core Resolutions, Inc. answered that it does not call debtors, including
Plaintiff. ECF 15-2, PgID 91. Defendants therefore have discharged their initial burdens.
Plaintiff argues that there are genuine issues of material fact because he received:
(1) a call with dead air or static, and (2) two calls from Defendants from different numbers
less than 60 seconds apart. ECF 17, PgID 122–23. Although the opinion is not binding, the
Court is persuaded by the Seventh Circuit's holding that allegations of dead air are
insufficient to

raise a genuine issue of material fact. See Norman v. AllianceOne

Receivable Mgmt., Inc., 637 F. App'x 214, 216 (7th Cir. 2015). Similarly, Plaintiff's
allegation that he received two calls less than 60 seconds apart does not raise a genuine
issue that Defendants used an automatic dialer because such a feat could be easily
attained by a human representative.
Plaintiff also argues that Defendants agreed to provide a list of amended
interrogatories that would include responses regarding an unaccounted-for call. ECF 17,

3

Interrogatories must be answered under oath and signed by the person who
responded or objected. Fed. R. Civ. P. 33. Accordingly, if the Court learns that the
interrogatories were untruthful or used to mislead the Court or the pro se plaintiff, Mr.
Gentry is at risk of being sanctioned, held in contempt, or both.
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PgID 123. But Defendants' interrogatory answers assert that the system used does not
have an automatic dialing capacity: any additional information about the unaccounted-for
call would still fall outside the statutory definition.
Plaintiff cannot show that Defendants used an ATDS as required to prevail on a TCPA
claim, therefore Defendants are entitled to judgment as a matter of law.
ORDER
WHEREFORE, it is hereby ORDERED that Defendants' Motion for Summary
Judgment [15] is GRANTED.
This is a final order that closes the case.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: October 18, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on October 18, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

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