SCHLUSSBERG v. RECEIVABLES PERFORMANCE MANAGEMENT, LLC
Filing
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OPINION filed. Signed by Judge Freda L. Wolfson on 6/29/2017. (km)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
YEHOSHUA SCHLUSSELBERG,
:
:
Plaintiff,
:
:
Civ. Action No. 15-7572(FLW)
v.
:
:
RECEIVABLES PERFORMANCE
:
OPINION
MANAGEMENT, LLC,
:
:
Defendant.
:
____________________________________:
WOLFSON, District Judge:
This matter comes before the Court on a Motion for Summary Judgment pursuant to Fed.
R. Civ. P. 56(a), filed by Defendant Receivable Performance Management (“RPM” or
“Defendant”), seeking to dismiss Plaintiff Yehoshua Shclusselberg’s (“Plaintiff”) Complaint.
Plaintiff brought this case alleging that Defendant violated the Telephone Consumer Protection
Act (“TCPA”) by using an Automatic Telephone Dialing System (“ATDS”) to call Plaintiff’s cell
phone numerous times. On its motion, Defendant contends that its calling system, referred to as
the LiveVox Human Call Initiator (“HCI”), uses human intervention to make the phone calls, and
therefore, that system falls outside of the TCPA because it does not constitute as an ATDS under
47 U.S.C. §227 (a)(1). For the reasons set forth below, Defendant’s Motion for Summary
Judgment is GRANTED.
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BACKGROUND 1
RPM is in the debt collecting business and, according to RPM, it made ninety-two calls 2
to Plaintiff on his cellular phone in order to collect a Verizon debt. Defendant’s Statement of
Undisputed Facts (“Def.’s Facts”), ¶ 1. It is not disputed that the calls were made in error because
the debt in question was owed by another Verizon subscriber. Id. As to those calls, RPM used the
calling services of LiveVox. LiveVox utilized the Human Call Initiator (“HCI”), which is a
distinct system designed to initiate calls through human intervention. Id., ¶ 4.
The human intervention aspect of HCI involves a “clicker agent” and a “closer agent.” No
calls are dialed through the HCI system unless the clicker agent manually clicks on the dialogue
box to launch a call, and subsequently, that same agent secures a separate closer agent to take the
1
Accompanying Defendant’s motion for summary judgment is RPM’s separate Statement
of Undisputed Material Facts in accordance with L. Civ. R. 56.1. Pursuant to the same rule,
Plaintiff was also obligated to submit a statement identifying what he deems to be the material
facts; Plaintiff has failed to do so. Indeed, L. Civ. R. 56.1(a) requires that on a motion for summary
judgment, both the moving and non-moving parties furnish a separate statement identifying what
each side deems to be the material facts. In particular, “[t]he opponent of summary judgment shall
furnish, with its opposition papers, a responsive statement of material facts, addressing each
paragraph of the movant’s statement, indicating agreement or disagreement and, if not agreed,
stating each material fact in dispute and citing to the affidavits and other documents submitted in
connection with the motion[.]” L. Civ. R. 56.1(a). Importantly, “any material fact not disputed
shall be deemed undisputed for purposes of summary judgment motion.” Id. These statements
assist the Court in determining whether a genuine dispute exists. As noted in the Rule's
commentary, “the requirement of a separate document represents a change from the practice under
the former version of the rule [and] . . . is viewed by the Court as a vital procedural step, since it
constitutes and is relied upon as a critical admission of the parties.” L. Civ. R. 56.1 cmt. Here,
because Plaintiff has not submitted any statement of undisputed facts, or responded to those facts
asserted in RPM’s Statement of Undisputed Material Facts, Defendant’s statements shall be
deemed admitted.
2
Rather than ninety-two calls, Plaintiff alleges — in his brief — that RPM placed over 400
calls to him. However, Plaintiff presents no evidence to support his assertion, other than his own
say-so. In any event, the number of calls made to Plaintiff is not material to the legal issues on
this motion.
2
call. Id., ¶ 7. The closer agent is tasked with speaking to the call recipient. Id. Notably, HCI’s
software and hardware design does not allow it to engage in automatic or predictive calling; in
fact, there are “no features that can be activated, deactivated, or added to the system to enable autodialing.” Id., ¶ 10. Instead, HCI is designed so that either a clicker agent or a dialer administrator
controls the frequency of calls by manually launching the calls.
Plaintiff initiated this suit by filing a one-count Complaint, alleging that Defendant violated
the TCPA by using the HCI system to call Plaintiff, because the HCI is an ATDS, or an automated
telephone dialing system, prohibited under § 227(a)(1). The parties engaged in discovery, and that
process has concluded. In the instant matter, Defendant moves for summary judgment.
DISCUSSION
I.
Standard of Review
Summary Judgment is appropriate “if 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). A factual dispute is genuine only if there is “a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving party,” and it is material only if it
has the ability to “affect the outcome of the suit under governing law.” Kaucher v. County of Bucks,
455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary
judgment. Anderson, 477 U.S. at 248. “In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any weighing of the evidence; instead,
the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in
his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson,
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477 U.S. at 255)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
(1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
The party moving for summary judgment has the initial burden of showing the basis for its
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party will bear the
burden of persuasion at trial, that party must support its motion with credible evidence . . . that
would entitle it to a directed verdict if not controverted at trial.” Id. at 331. On the other hand, if
the burden of persuasion at trial would be on the nonmoving party, the party moving for summary
judgment may satisfy Rule 56’s burden of production by either (1) “submit[ting] affirmative
evidence that negates an essential element of the nonmoving party’s claim” or (2) demonstrating
“that the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” Id. Once the movant adequately supports its motion pursuant to Rule
56(c), the burden shifts to the nonmoving party to “go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Id. at 324; see also Matsushita, 475
U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the
merits of a party’s motion for summary judgment, the court’s role is not to evaluate the evidence
and decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be “no genuine issue as to any material fact,” however, if a party fails “to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23. “[A] complete
failure of proof concerning an essential element of the nonmoving party’s case necessarily renders
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all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.
1992).
II.
TCPA
The TCPA was passed by Congress to protect consumers from receiving, “intrusive and
unwanted calls.” Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013) (citing Mims
v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 745 (2012)). In doing so, “[c]ongress determined that
federal legislation was needed because telemarketers, by operating interstate, were escaping statelaw prohibitions on intrusive nuisance calls.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 371
(2012). In particular, pursuant to 47 U.S.C. §227 (b)(1)(A)(iii), the TPCA restricts the use of any
automated telephone equipment that uses artificial or prerecorded voice to call “any telephone
number” assigned to, inter alia, a cellular phone. Under the statute, an ATDS is equipment that
possesses both of the following capabilities: “(A) to store or produce telephone numbers to be
called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C.
§ 227(a)(1).
Congress authorized the Federal Communications Commission (“FCC”) to implement
rules and regulations enforcing the TCPA. 47 U.S.C. § 227(b)(2). The FCC has clarified that the
ATDS “covers any equipment that has the specified ‘capacity’ to generate numbers and dial them
without human intervention regardless of whether the numbers called are randomly or
sequentially generated or come from calling lists.” In the Matter of Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7974 (July
10, 2015) (“2015 FCC Ruling”). In other words, so long as the equipment at issue has the requisite
“capacity” to automatically generate and dial numbers, the system is considered an ATDS under
the TCPA, without regard to whether such capabilities were used in making the offending calls.
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Here, Defendant argues that LiveVox’s HCI system is not by definition an ATDS under
the TCPA. Defendant reasons that because HCI specifically integrates human intervention, the
system does not possess the automated capabilities set forth under the statute. In response, Plaintiff
contends that Defendant violated the TCPA by using an ATDS to call Plaintiff. The Court rejects
Plaintiff’s argument for various reasons.
For one, without Plaintiff submitting his own statement of undisputed facts, the Court takes
Defendant’s assertion as true that HCI is not an automated system, but rather, it is operated by
human intervention, and the Court takes as true how the HCI system operates — with human
intervention. Notwithstanding Defendant’s “Statement of Undisputed Facts,” Plaintiff,
nonetheless argues in his briefing that HCI is in fact an ATDS, because he allegedly heard an initial
period of silence when he answered Defendant’s calls. However, Plaintiff presents no evidence
whatsoever to support his contention. As a procedural matter, Plaintiff has not submitted an
affidavit or declaration attesting to his assertion; but, more importantly, he provides no evidence
that the period of silence he heard somehow is probative in determining that Defendant’s HCI
calling system was automated as defined under the TCPA. Discovery has ended, and Plaintiff
had every opportunity to explore whether there is any evidence to support his position that the HCI
system is an autodailer. Plaintiff has not done so. Based on the undisputed record before me, I
find that the inclusion of human operation in the HCI system does not allow the system itself to
“produce telephone numbers to be called, using a random or sequential number generator.” 47
U.S.C. § 227(a)(1). Nor does the HCI automatically dial those numbers. Instead, a clicker agent
manually initiates a call at will and determines the frequency of the calls, not through any
automatic means. See, e.g., Jenkins v. Gage, LLC, No. 14 -2791, 2016 U.S. Dist. LEXIS 106769,
at *1, 7 (N.D. Ga. Aug. 12, 2016) (granting summary judgment in favor of defendants and
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concluding that the platform at issue was not an autodialer when human intervention was
involved); Estrella v. LTD Fin. Servs., LP, No. 14-2624, 2015 U.S. Dist. LEXIS 148249, at *3
(M.D. Fla. Nov. 2, 2015) (finding summary judgment in favor of defendant appropriate when “the
evidence demonstrates, at most, that the calls were placed manually with the use of human
intervention through a 'point and click function.”); Gaza v. LTD Fin. Servs., L.P., No. 14-1012,
2015 U.S. Dist. LEXIS 111751, at *1, 4 (M.D. Fla. Aug. 24, 2015) (finding the calling system is
not an ATDS when “the agent pulled up the subject account from a database and then used his
mouse to manually click on the phone number associated with the account to launch the call”);
Wilcox v. Green Tree Servicing, LLC, 2015 U.S. Dist. LEXIS 58667, at *5 (finding that with
human intervention, the call system would not be construed an autodialer); Modica v. Green Tree
Servicing, LLC, 2015 U.S. Dist. LEXIS 55751, at *3 (N.D. Ill. Apr. 29, 2015) (finding that
defendant's call system that required the operator to click to initiate a call was not an autodialer);
Gragg v. Orange Cab Co., 995 F. Supp. 2d 1189, 1193-94 (W.D. Wash. 2014) (finding the system
at issue was not an ATDS when it required the agent to physically press “accept” to initiate a text
message).
Next, Plaintiff cites dual cases, Davis v. Diversifield Consultants, Inc., 36 F. Supp. 3d 217
(D. Mass. 2014) and Echevvaria v. Diversified Consultants, No. 13-4980, 2014 U.S. Dist. LEXIS
32136 (S.D.N.Y. Feb. 28, 2014), for the proposition that the HCI system is an ATDS under the
TCPA. Those cases, however, are inapposite. In Davis, the court dealt with a LiveVox DCI system
that was mechanically different than the HCI system, here. Davis, 36 F.Supp. 3d at 221.
According to the Davis Court, the DCI system had the capacity to store telephone numbers, as well
as to generate random or sequential numbers, which functions fall within the definition of an ATDS
under the TCPA. Id. at 225-26. These particular functions of the DCI system are noticeably absent
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from the HCI system. While both, i.e., DCI and HCI, systems are made by LiveVox, they
fundamentally work in different ways that makes a substantial difference under the TCPA.
Moreover, Echevvaria also held that a LiveVox system — that had similar functions as the DCI
system — was an ATDS. Id. at *4. The court in that case found that the system there was “a
predictive dialer that under the FCC's rules interpreting the TCPA, is an ATDS covered by the
TCPA.” Id. at *26. Accordingly, the systems in Davis and Echevvaria are different than the HCI
system.
In fact, another district court, in Pozo v. Stellar Recovery Collection Agency, Inc., No. 15929, 2016 U.S. Dist. LEXIS 146432 (M.D. Fla., Sep. 2, 2016), makes this exact distinction. In
Pozo, plaintiff argued that defendant, in order to collect a debt, left a series of prerecorded
messages on his answering machine. Id. at *8. The defendant was using HCI — the same system
in this case — to make calls. The court held that HCI is not an ATDS, because clicker agents
initiated all calls by clicking a dialogue box, and HCI did not allow any calls to be automatically
made by the system. Id. at *11. Just as in this case, the plaintiff in Pozo attempted to rely on Davis
and Echevvaria, but the Pozo court rejected plaintiff’s argument because, the court reasoned, “both
Echevvaria and Davis found the LiveVox system used in those cases to be autodialers because
they automatically called numbers from a list and automatically connected the calls with an
available agent.” Id. at *13. See Smith v. Stellar Recovery, Inc., No. 15-1717, 2017 U.S. Dist.
LEXIS 35658, at *19, *28 (E.D. Mich., Feb. 7, 2017) (finding that the HCI system is not an
ATDS). Therefore, this Court finds Davis and Echevvaria to be distinguishable.
Accordingly, because Defendant’s HCI system is not an autodialer for the purposes of
TCPA, summary judgment is granted in favor of Defendant.
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CONCLUSION
For the reasons set forth above, RPM’s Motion for Summary Judgment is GRANTED
because Plaintiff failed to create a genuine issue of material fact regarding the LiveVox HCI
system constituting as an Automatic Telephone Dialing System, pursuant to 47 U.S.C. §227 (a)(1).
DATE: June 29, 2017
/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. District Court Judge
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