SMITH v. NAVIENT SOLUTIONS, LLC

Filing 72

MEMORANDUM OPINION AND ORDER granting 56 Motion for Summary Judgment; denying as moot 60 Motion in Limine, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 8/4/2019. (dlg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
GREGORY J. SMITH,

)
)

Plaintiff,
v.

NA VIENT SOLUTIONS, LLC,

Defendant.

) CIVIL ACTION NO. 3:17-191
)
) JUDGE KIM R. GIBSON
)
)
)
)
)
)

MEMORANDUM OPINION

Before the Court is Defendant Navient Solutions, LLC's Motion for Summary Judgment
(ECF No. 56) and Motion in Limine to Preclude Plaintiff's Expert Report and Testimony (ECF
No. 60). These motions are fully briefed (see ECF Nos. 57-59, 61-62, 65-66) and are ripe for
disposition. For the reasons that follow, the Court will GRANT Navient's Motion for Summary
Judgment (ECF No. 56) and DENY its Motion in Limine as moot (ECF No. 60).

I.

Background
A.

Procedural Background

On October 17, 2017, Plaintiff Gregory J. Smith filed a two-count Complaint against
Navient alleging that Navient: (1) violated the Telephone Consumer Protection Act (TCPA) by
placing calls to Smith using an automated telephone dialing system (ECF No. 1 <j[<j[ 31-33); and
(2) violated Pennsylvania law by invading Smith's privacy and intruding upon his seclusion.
(Id. <j[<j[ 34-36.)

From February of 2018 until February of 2019, the parties engaged in discovery. (See
ECF Nos. 21, 28, 34.)

On March 28, 2019, Navient filed the instant Motion for Summary

Judgment. (ECF No. 56.) On April 18, 2019, it filed its Motion in Limine (ECF No. 60) to exclude
the testimony and report of Smith's expert, Randall Snyder. Those Motions became ripe in May
of 2019. (See ECF Nos. 65, 66.)
B.

Factual Background

The Court derives the following facts from Navient's Concise Statement of Material
Facts. (ECF No. 58.) Smith never filed a responsive concise statement of material facts as
required by Local Rule 56. See LCvR 56(C). 1 To oppose a motion for summary judgment, the
Local Rules provide that the opposing party:
shall file ... [a] separately filed concise statement, which responds to each
numbered paragraph in the moving party's Concise Statement of Material Facts
by: (a) admitting or denying whether each fact contained in the moving party's
Concise Statement of Material Facts is undisputed and/or material; (b) setting
forth the basis for the denial if any fact contained in the moving party's Concise
Statement of Material Facts is not admitted in its entirety (as to whether it is
undisputed or material), with appropriate reference to the record ... ; and (c)
setting forth in separately numbered paragraphs any other material facts that are
allegedly at issue, and/or that the opposing party asserts are necessary for the
Court to determine the motion for summary judgment.
LCvR 56(C)(1).
"Alleged material facts set forth in the moving party's Concise Statement of Material
Facts or in the opposing party's Responsive Concise Statement, which are claimed to be
undisputed, will for the purpose of deciding the motion for summary judgment be deemed
admitted unless specifically denied or otherwise controverted by a separate concise statement of

1

Available at https://www.pawd.uscourts.gov/sites/pawd/files/lrmanual2018l l0l.pdf.
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the opposing party." LCvR 56(E); see also Wylie v TransUnion, LLC, No. 3:16-cv-102, 201 WL
4357981, at *4-*8 (W.D. Pa. Sept. 29, 2017) (deeming the facts in movant's concise statement of
material facts to be admitted because non-movant did not file a responsive concise statement in
accordance with LCvR 56); Practices and Procedures of Judge Kim R. Gibson, at 27-29 2

("

All

material facts set forth in the Movant' s Concise Statement of Undisputed Material Facts shall be
deemed admitted for the purposes of summary judgment unless specifically controverted as set
forth herein."). Accordingly, the Court will treat the following facts from Navient's Concise
Statement of Material Facts as admitted.

1.

N avient Services Smith's Loan

Smith co-signed on $20,000 in private loans that his daughter took out to go to college.
(ECF No. 58 1111 1-2.) Navient, which is in the business of servicing private student loans and
collecting payments, began servicing Smith's loans when they were taken out in August of 2005
and March of 2006. (Id. 11113-4.)
Smith defaulted on his loan obligations. (Id. 11 5.) On February 23, 2015, Smith provided
Navient with a cell phone number to call regarding the loans. (Id. 11 6.) Through an automated
call menu, Smith indicated that he called Navient from a cell phone, entered his cell phone
number, and then authorized "Navient ... to contact [his] number, even if it is a cell phone,
using a dialer, text or prerecorded message, concerning any of your current or future accounts."
(Id. 11 7.)

2

Available at https://www.pawd.uscourts.gov/sites/pawd/files/JG-Practices-Procedures.pdf.
-3-

On May 2, 2015, Smith entered his mobile number on Navient's website and consented
to Navient contacting his mobile number "using any means of communication, including, but
not limited to, calls placed to [his] cellular phone using an automated dialing device, calls using
prerecorded messages and/or SMS text messages." (Id. 1I1I 8-9.)
On January 20, 2017, Smith requested that Navient stop calling his cell phone. (Id. <JI 11.)
Navient made 136 calls to Smith's cell phone after he revoked his consent to be called. (Id. <JI 13.)
Smith only answered one of the 136 calls that Navient placed to Smith's cell phone after January
20, 2017. (Id.

1I1I 14-15.) Navient alleges that Smith often did not have his cell phone with him

when Navient called him. (Id. 1I1I 16-17.)

2.

Navient's ININ Call System

All the calls that Navient made to Smith after January 20, 2017 were placed using call
software called "ININ." (Id. 1I 19.) "The ININ telephony platform is a highly sophisticated
design engine that [Navient] has custom configured to support its call centers in placing
outbound calls and receiving inbound calls." (Id. 1I 20.)
The ININ system utilizes three different modes-"preview," "predictive," and
"agentless" -when it places calls to consumers. (Id. 1I1I 21-23.) In "preview" mode, a Navient
agent must take some "human action" to place calls to consumers. (Id. 1I 33.) In preview mode,
Navient representatives review customer information from a database and choose which
customers to call. (Id. 1I1I 34-36.) In "predictive" and "agentless" modes, by contrast, the ININ
system can initiate a call to a consumer without a Navient agent taking action to place the call.
(Id.

1I 31.) Of the 136 total calls that Navient placed to Smith's cell phone, twelve were placed in
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preview mode and the remaining calls were placed in predictive or agentless modes. (Id. 1[ 30.)
In all three of these modes, a human representative (as opposed to a prerecorded voice) speaks
with the consumer-the difference between the modes is the manner in which the number is
dialed. (Id. 1(1[ 30-36.)
The ININ system does not have the capacity to randomly generate telephone numbers to
be called.

(Id. <JI 27.)

Similarly, the ININ system does not have the capacity to generate

sequential lists of telephone numbers. (Id. <JI 28.) Rather, the telephone numbers that the ININ
system dials are uploaded from a database containing Navient's customer information. (Id. <Jl<Jl
25-27.) As support for its assertions on the functionality of the ININ system, Navient cites the
declaration and deposition testimony of Joshua Dries, its Senior Director of Dialer Operations
(id. <Jl<Jl 18-28, 31-37) and the testimony by Smith's expert, Randall Snyder.

(Id. <Jl<Jl 27-29.)

Navient included Randall Snyder's declaration in the instant case in the Appendix to its Motion
for Summary Judgment. (ECF No. 59-8.)
II.

Jurisdiction and Venue

The Court has jurisdiction over Plaintiff's TCPA claim under 28 U.S.C. § 1331. The
Court has supplemental jurisdiction over Plaintiff's state-law claim under 28 U.S.C. § 1367.
Venue is proper under 28 U.S.C. § 1391 because a substantial part of the events giving rise to
this case took place in the Western District of Pennsylvania.
III.

Legal Standard

"Summary judgment is appropriate only where ... there is no genuine issue as to any
material fact ... and the moving party is entitled to judgment as a matter of law." Melrose, Inc. v.

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Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n.6
(3d Cir. 2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(a).
Issues of fact are 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); see also

McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those that will affect the
outcome of the trial under governing law. Anderson, 477 U.S. at 248. The court's role is "not to
weigh the evidence or to determine the truth of the matter, but only to determine whether the
evidence of record is such that a reasonable jury could return a verdict for the nonmoving
party." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). "In making this
determination, 'a court must view the facts in the light most favorable to the nonmoving party
and draw all inferences in that party's favor."' Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278
(3d Cir. 2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).
The moving party bears the initial responsibility of stating the basis for its motion and
identifying those portions of the record that demonstrate the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party opposing
summary judgment "may not rest upon the mere allegations or denials" of the pleading, but
"must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart

Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574,587 n.11, (1986)). "For an issue to be genuine, the nonmovant needs to supply more
than a scintilla of evidence in support of its position-there must be sufficient evidence (not
mere allegations) for a reasonable jury to find for the nonmovant." Coolspring Stone Supply v.
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Am. States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993); see also Podobnik v. U.S. Postal Serv., 409
F.3d 584, 594 (3d Cir. 2005) (noting that a party opposing summary judgment "must present
more than just bare assertions, conclusory allegations or suspicions to show the existence of a
genuine issue") (internal quotation marks omitted).

IV.

Discussion
A.

Navient is Entitled to Summary Judgment on Smith's TCPA Claim
1.

Background on the TCPA and the Definition of ADTS

Smith alleges that Navient violated 47 U.S.C. § 227(b)(l)(A)(iii).

(ECF No. 1

<_![

32.)

§ 227(b) provides that:

It shall be unlawful for any person within the United States, or any person
outside the United States if the recipient is within the United States-

(A) to make any call (other than a call made for emergency purposes or made
with the prior express consent of the called party) using any automatic telephone
dialing system or an artificial or prerecorded voice(iii) to any telephone number assigned to a paging service, cellular telephone
service, specialized mobile radio service, or other radio common carrier service,
or any service for which the called party is charged for the call, unless such call is
made solely to collect a debt owed to or guaranteed by the United States[.]
47 U.S.C. § 227(b).
Smith alleges that Navient "violated 47 U.S.C. § 227(b)(l)(A)(iii) by calling Mr. Smith's
cellular phone number, using an automatic telephone dialing system." (Id.) Therefore, Smith's
claim hinges on whether Navient utilized an ATDS when it called Smith. The TCPA defines
"automatic telephone dialing system" (referred to as both an "ATDS" or "autodialer") as
"equipment which has the capacity-(A) to store and produce telephone numbers to be called,

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using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. §
227(a)(l).
Both the FCC and federal courts have elaborated on the definition of ATDS. The FCC
released guidance on what constitutes an ATDS (or autodialer) in 2003, 2008, and 2015. See In re

the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18
F.C.C.R. 14014, 2003 WL 21517853 (F.C.C. 2003) (hereinafter "F.C.C. Guidance 2003"); In re the

Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23
F.C.C.R. 559, 2008 WL 65485 (F.C.C. 2008) (hereinafter "F.C.C. Guidance 2008"); In re the Matter of

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 F.C.C.R. 7961,
2015 WL 4387780 (F.C.C. 2015) (hereinafter "F.C.C. Guidance 2015").
In 2003, the F.C.C. released the following on the definition of an ATDS:
The statutory definition contemplates autodialing equipment that either stores or
produces numbers. It also provides that, in order to be considered an "automatic
telephone dialing system," the equipment need only have the "capacity to store or
produce telephone numbers (emphasis added) .... " It is clear from the statutory
language and the legislative history that Congress anticipated that the FCC,
under its TCP A rulemaking authority, might need to consider changes in
technologies. In the past, telemarketers may have used dialing equipment to
create and dial 10-digit telephone numbers arbitrarily. As one commenter points
out, the evolution of the teleservices industry has progressed to the point where
using lists of numbers is far more cost effective. The basic function of such
equipment, however, has not changed-the capacity to dial numbers without
human intervention. We fully expect automated dialing technology to continue
to develop.
[T]o exclude from these restrictions equipment that use predictive dialing
software from the definition of "automated telephone dialing equipment" simply
because it relies on a given set of numbers would lead to an unintended result.
Calls to emergency numbers, health care facilities, and wireless numbers would
be permissible when the dialing equipment is paired with predictive dialing
software and a database of numbers, but prohibited when the equipment
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operates independently of such lists and software packages. We believe the
purpose of the requirement that equipment have the "capacity to store or
produce telephone numbers to be called" is to ensure that the prohibition on
autodialed calls not be circumvented. Therefore, the Commission finds that a
predictive dialer falls within the meaning and statutory definition of "automatic
telephone dialing equipment" and the intent of Congress.
F.C.C. Guidance 2003 <JI<JI 132-33.

"Predictive dialers are 'dialing systems that store pre-

programmed numbers or receive numbers from a computer database and then dial those
numbers in a manner that maximizes efficiencies for call centers." Dominguez v. Yahoo!, Inc., No.
13-1887, 2017 WL 390267, at *4 (E.D. Pa. Jan. 27, 2017).
The F.C.C.'s 2008 report on the TCPA reinforced its 2003 guidance on whether predictive
dialers qualify as autodialers or AIDSs:
In this Declaratory Ruling, we affirm that a predictive dialer constitutes an
automatic telephone dialing system and is subject to the TCPA's restrictions on
the use of autodialers .... [T]he Commission first sought comment on predictive
dialers in 2002 and asked whether using a predictive dialer is subject to the
TCPA's autodialer restrictions. The Commission found that, based on the
statutory definition of "automatic telephone dialing system," the TCP A's
legislative history, and current industry practice and technology, a predictive
dialer falls within the meaning and definition of autodialer and the intent of
Congress.
F.C.C. Guidance 2008 <JI<JI 12-13.

Finally, in 2015, the F.C.C. released more guidance on what software constitutes an
AIDS or autodialer. It stated that:
We reaffirm our previous statements that dialing equipment generally has the
capacity to store or produce, and dial random or sequential numbers (and thus
meets the TCPA's definition of "autodialer") even if it is not presently used for
that purpose, including when the caller is calling a set list of consumers. We also
reiterate that predictive dialers, as previously described by the Commission,
satisfy the TCP A's definition of "autodialer" for the same reason.
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In the 2003 TCP A Order, the Commission described a predictive dialer as
"equipment that dials numbers and, when certain computer software is attached,
also assists telemarketers in predicting when a sales agent will be available to
take calls. The hardware, 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." In the 2008 ACA Declaratory Ruling, the
Commission "affirm[ed] that a predictive dialer constitutes an automatic
telephone dialing system and is subject to the TCP A's restrictions on the use of
autodialers." The Commission considered ACA's argument that a predictive
dialer is an autodialer "only when it randomly or sequentially generates
telephone numbers, not when it dials numbers from customer telephone
lists," and stated that ACA raised "no new information about predictive dialers
that warrant[ ed] reconsideration of these findings" regarding the prohibited uses
of autodialers-and therefore predictive dialers-under the TCPA.
[T]he Commission has also long held that the basic functions of an autodialer are
to "dial numbers without human intervention" and to "dial thousands of
numbers in a short period of time." How the human intervention element
applies to a particular piece of equipment is specific to each individual piece of
equipment, based on how the equipment functions and depends on human
intervention, and is therefore a case-by-case determination.
F.C.C. Guidance 2018 <_[<_[ 10, 13, 17. The upshot of the F.C.C.'s 2018 guidance was to reinforce

that an ATDS or autodialer is a system that has the "capacity" or "potential ability" to randomly
or sequentially generate numbers and then dial them. Id. 'Il'Il 14, 18-20. However, from these
three sets of guidance, it is difficult to discern whether a predictive dialer or a device that
utilizes predictive-dialing software-where computer software automatically calls numbers
from a preprogrammed list of numbers-qualifies as an ADTS.
Later in 2018, the United States Circuit Court for the District of Columbia considered
consolidated challenges to the F.C.C.'s guidance on the TCPA-and specifically guidance on the
definition of ADTS-in ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018). The D.C. Circuit held

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that the F.C.C.'s guidance on the definition of ADTS is arbitrary and capricious, and therefore
impermissible, for two reasons.
First, the D.C. Circuit held that the F.C.C.'s guidance on what constitutes an AIDS was
unreasoned and impermissible rulemaking because the F.C.C.'s definition of AIDS-a system
that has the potential capacity to randomly or sequentially generate numbers and then dial
them-is so broad that a normal smartphone could qualify as an AIDS. Id. at 695-97. The ACA
Court reasoned that:
In the end, then, the Commission's order cannot reasonably be understood to
support the conclusion that smartphones fall outside the TCPA's autodialer
definition: any such reading would compel concluding that the agency's ruling
fails arbitrary-and-capricious review. The more straightforward understanding
of the Commission's ruling is that all smartphones qualify as autodialers because
they have the inherent "capacity" to gain AIDS functionality by downloading an
app. That interpretation of the statute, for all the reasons explained, is an
unreasonably, and impermissibly, expansive one.

Id. at 700.
Second, the D.C. Circuit held that the F.C.C.'s guidance fails as reasoned rulemaking
because it does not clearly state whether a predictive dialer qualifies as an A TDS. Id. at 701-04.
The F.C.C.'s guidance stated that "the basic function of an autodialer is the ability to dial
numbers without human intervention" -which would render any predictive-dialer software an
AIDS. Id. at 703 (citing F.C.C. Guidance 2003

<"f[

132; F.C.C. Guidance 2008

<"fl

13; F.C.C. Guidance

2015 1I 17). However, in the 2003 Guidance, the F.C.C. stated that some predictive dialers may
qualify as AIDSs even if they do not have the ability to general random or sequential phone
numbers. F.C.C. Guidance 2003 111 131, 133. The 2015 Guidance reaffirmed that predictive
dialers generally qualify as AIDSs. F.C.C. Guidance 2015
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<"f[<"f[

12-14. However, the F.C.C.'s

guidance is at odds with the statutory definition of ADTSs- "equipment which has the capacity
... to store and produce telephone numbers to be called, using a random or sequential number
generator," 47 U.S.C. § 227(a)(l)-if devices that do not have the capacity to randomly or
sequentially generate phone numbers to be called may also be considered A TDSs or autodialers.

ACA Int'l, 885 F.3d at 702.
Moreover, the 2015 Guidance also stated that a device may qualify as an A TDS or an
autodialer even if it does not have the capacity to dial numbers without human intervention. Id.
(citing F.C.C. Guidance 2015 <Jl 20). The D.C. Circuit pointed out that this is directly at odds with
another section of the 2015 guidance, which states that "the basic function of [an ATDS or
autodialer] ... is the capacity to dial numbers without human intervention. F.C.C. Guidance 2015
<JI 14. Accordingly, the D.C. Circuit held that "the [F.C.C.'s] ruling, in describing the functions a

device must perform to qualify as an autodialer, fails to satisfy the requirement of reasoned
decisionmaking" and rejected the F.C.C.' s interpretation of autodialer or ATDS. ACA Int'l at
702.
Courts have held that the D.C. Circuit's ACA International decision invalidated the
F.C.C.'s guidance from 2003, 2008, and 2015. 3 See, e.g., Marks v. Crunch San Diego, LLC, 904 F.3d
1041, 1049-50 (9th Cir. 2018); Richardson v. Verde Energy USA, Inc., 354 F. Supp. 3d 639, 648 (E.D.
Pa. 2018). These courts have held that "only the statutory definition of ATDS as set forth by

Courts have spent considerable time considering whether the D.C. Circuit's ACA International decision
invalidated only the F.C.C.'s 2015 guidance, or whether it invalidated the F.C.C.'s guidance from 2003,
2008, and 2015. See, e.g., Espejo v. Santander Consumer USA, Inc., No. 11 C 8987, 2019 WL 2450492, at *5, n.2
(N.D. Ill. June 12, 2019) (collecting cases where district courts decided that the ACA International
invalidated the 2003, 2008, and 2015 F.C.C. guidance). The Court agrees that the ACA International
decision explicitly invalidated the F.C.C.'s 2015 guidance, and by implication the 2003 and 2008 guidance.
3

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Congress in 1991 remains" and that after ACA International, "we must begin anew to consider
the definition of AIDS under the TCPA." Marks, 904 F.3d at 1049-50.
The Third Circuit followed the D.C. Circuit's ACA International decision and rejected the
F.C.C.'s guidance on the definition of ATDS. See Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d
Cir. 2018). In Dominguez, the Third Circuit held that courts must interpret A TDS to mean a
system that has "the present capacity to function as an autodialer." Id. There, the Third Circuit
affirmed the district court's decision to grant summary judgment in defendant's favor because
the text-message service at issue did not have the present capacity to store or produce telephone
numbers using a random or sequential number generator. Id. at 117, 121.
Courts have elaborated upon the Third Circuit's holding in Dominguez.

The Ninth

Circuit characterized the Third Circuit's Dominguez decision as holding "that a device must be
able to generate random or sequential numbers in order to qualify as an A TDS." Marks, 904
F.3d at 1052 n.8; Richardson, 354 F. Supp. 3d at 650 ("[T]o qualify as an ATDS, calling equipment
must have the capacity to generate numbers using a random or sequential number generator
and then call those numbers."); Collins v. Nat'l Student Loan Program, No. 17-5345, 2018 WL
6696168 (D. N.J. Dec. 20, 2018).
After ACA International and Dominguez, district courts have dealt with the question of
whether a device utilizing predictive-dialing software is an ATDS. These courts have held that
a predictive dialer may constitute an ATDS but that, consistent with Dominguez, the predictive
dialer must have the capacity to generate numbers randomly or sequentially and then call them.

See, e.g., Richardson, 34 F. Supp. 3d at 650 (holding that "a device that merely has the capacity to
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store and dial numbers that have been inputted into the equipment does not qualify as an
AIDS" because "the ability to generate random or sequential telephone numbers is necessary
for a device to qualify as an A IDS"); Collins, 2018 WL 6696168, at *5 (holding that a predictivedialing device was not an AIDS because plaintiff failed to prove that the device had the present
capacity to randomly or sequentially generate numbers); Fleming v. Associated Credit Servs., Inc.,
2018 WL 4562460, at *10 (D. N.J. Sept. 21, 2018) ("Does a system that dials numbers from a list
that was not randomly or sequentially generated when the list was created qualify as an ADTS?
With only the statutory text to guide me, I am convinced that the answer is no."). Another court
characterized the Third Circuit as holding "that the ATDS definition necessarily excludes
predictive dialers because they do not have the capacity to generate numbers randomly or
sequentially." 4 Espejo v. Santander Consumer USA, Inc., No. 11 C 8987, 2019 WL 2450492, at *6

Some courts that have adopted this position have conducted an in-depth grammatical analysis of the
TCPA' s definition of A TDS. While the Court finds this analysis unnecessary to reach its conclusion on
the definition of ATDS, the reasoning is instructive. The Northern District of Illinois summarized this
analysis in Espejo:

4

This position notes that "store" and "produce" are both transitive verbs that require an
object, which in this case is the phrase "telephone numbers to be called." Pinkus, 319 F.
Supp. 3d at 937. "Despite the disjunctive 'or' linking 'store' and 'produce,' 'store' is not a
grammatical orphan, rather, like 'produce,' it is tied to the object, 'telephone numbers to
be called."' Id. at 937-38. Moreover, this interpretation emphasizes that the adverbial
"using" phrase follows both verbs, so it cannot grammatically modify only "produce."
Id. at 937. Rather, "[g]iven its placement immediately after 'telephone numbers to be
called,' the phrase 'using a random or sequential number generator' is best read to
modify 'telephone numbers to be called,' describing the quality of the numbers an AIDS
must have the capacity to store or produce." Id. at 938. Therefore, "the phrase 'using a
random or sequential number generator' necessarily conveys that an A TDS must have
the capacity to generate telephone numbers, either randomly or sequentially, and then to
dial those numbers." Id.

Espejo, 2019 WL 2450492, at *6.

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(N.D. Ill. June 12, 2019) (citing Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927, 936-37 (N.D.
Ill. 2018)); see also Richardson, 354 F. Supp. 3d at 648 (citing Pinkus, 319 F. Supp. 3d at 935).

The Court agrees with the reasoning in these cases. Predictive dialers do not necessarily
qualify as A TDSs under the plain language of the statute or the Third Circuit's guidance in

Dominguez.

To reiterate, a predictive dialer is a device that automatically calls telephone

numbers from a preprogrammed list or separate computer database where telephone numbers
are stored. Predictive dialers do not necessarily generate numbers to be called. Moreover,
predictive dialers do not necessarily have the capacity to randomly or sequentially generate
numbers to be called. In some cases, predictive dialers may be A TDSs where some feature of
the software enables them to randomly or sequentially generate numbers to be called.
However, where a predictive dialer merely calls consumer numbers from a list that that is
separately created and uploaded onto the software, the predictive dialer itself is not generating
any numbers to be called. In that situation, the predictive dialer is not an A TDS so long as it
does not have the present capacity to randomly or sequentially generate numbers to be called.
In sum, the Court finds that a predictive-dialing device is not an A TDS merely because it calls

consumers from a preprogrammed list of numbers that was inputted into the device. Rather,
the device itself must have the capacity to generate numbers.

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2.

Smith's TCPA Claim Fails as a Matter of Law Because Navient Did Not
Place Calls to Smith Using an ATDS

In this case, there is no genuine dispute of material fact that Navient complied with the
TCP A. The undisputed material facts indicate that the ININ system that N avient used to call
Smith was not an A TDS.
The ININ system is not an A TDS because it "does not have the capability to randomly
generate numbers to comprise a 10-digit telephone number and then dial that number." (ECF
No. 58 <JI 27.) Further, "[t]he ININ dialing system does not have the capacity to generate a
sequential list of numbers for dialing."

(Id. <JI 28.) Therefore, based on the Third Circuit's

definition of A TDS, the ININ system cannot be an A TDS because it does not generate, either
randomly or sequentially, numbers to be called.

Dominguez, 894 F.3d at 117, 121; see also

Richardson, 34 F. Supp. 3d at 650; Collins, 2018 WL 6696168, at *5.
There is no dispute that the ININ system utilizes predictive-dialing software. (ECF No.
58 <[<[ 30-33.) However, as previously discussed, a device does not qualify as an A TDS under
Third Circuit precedent merely because it utilizes predictive dialing. Dominguez, 894 F.3d at
117, 121; Collins, 2018 WL 6696168, at *5; Fleming, 2018 WL 4562460, at *10; Richardson, 354 F.
Supp. 3d at 650. Rather, the crucial question is whether the ININ system has the present
capacity to randomly or sequentially generate numbers to be called, and there is no evidence
that the ININ system has that capability.

-16-

The declaration of Plaintiff's expert, Randall Snyder, does not create a genuine dispute
of material fact on whether the ININ system was an ATDS or autodialer. 5 In his declaration,
Snyder outlines the basic functionality of the ININ system. (ECF No. 59-8 'II'II 48-60.) He states
that the ININ system "maintains outbound automatic dialing servers and a central campaign
server to perform outbound automatic dialing functions ... [such as] automatic dialing and
predictive dialing." (Id. 'II 51.) "Through the operational interface, users of the [ININ] system
can operate functions such as setting up and managing calling lists for campaigns ... and
setting up the dialing types, rules, and pacing algorithms for predictive dialing and other types
of automatic dialing provided by the system."

(Id. 'II 53.)

Snyder reached the following

conclusion on the functionality of the ININ system:
The [ININ] system produces number to be called, using a sequential number
generator and then dials those numbers .... Therefore, it is my opinion, based on
my knowledge, education, expertise, training, my review of the relevant
documents and the facts described above, that the [ININ] system is equipment
that stores or produces telephone numbers to be called, using a random or
sequential number generator, and dials such numbers. Additionally, the [ININ]
system is equipment that dials telephone numbers from a stored list of numbers
without human intervention. Furthermore, it is my opinion that the [ININ]
system stores telephone numbers and predictively dials them.
(Id. 'II'II 59-60.)

This two-paragraph conclusion does not create a genuine dispute of material fact on
whether the ININ system is an ATDS. Despite his conclusions, Snyder's declaration does not
explain how the ININ system generates numbers. Instead, he states that:

Randall Snyder's declaration addresses two calling systems-the Noble system and the ININ system.
(See ECF No. 59-8.) Smith's allegations, however, involve only the ININ system. (See ECF No. 58 '11'111922.) Accordingly, the portion of Snyder's declaration dealing with the Noble system (ECF No. 59-8 '11'113647) is irrelevant to the instant Motion.
5

-17-

The [ININ system] automatically sorts, filters, reorders, and re-sequences
telephone numbers based on rules and strategies that have been preprogrammed
into the system. Once properly processed, the telephone numbers are stored in a
new and specially ordered list in sequence, based on those rules and strategies.
This list is subsequently automatically loaded into the [ININ] system to be
automatically dialed.
(Id. ciI 58.) This paragraph of Snyder's declaration indicates that the ININ system does not

actually generate numbers to be called, either randomly or sequentially. The ININ system may
reorder preprogrammed numbers from an independent list into a new sequence, but the system
does not generate new numbers to be called. All telephone numbers called through the ININ
system are inputted through a prearranged or preprogrammed list. In other words, the ININ
system is not an A TDS merely because it reorganizes telephone numbers into a list with a
different sequence. And Snyder's declaration does not otherwise establish that the ININ system
has the capacity to randomly or sequentially generate telephone numbers to be called.
The Court's conclusion on Snyder's declaration is consistent with how other courts have
dealt with it. In Dominguez, the Third Circuit held that Snyder's declaration did not create a
genuine dispute of material fact on whether the system at issue was an ATDS. 6 Dominguez, 894
F.3d at 120-21. There, the Third Circuit stated that "Snyder purports to address present, not just
latent, capacity, by repeatedly opining that 'Yahoo's Email SMS Service system had the ability
to generate random numbers and, in fact, did generate random numbers.'

This opinion,

however, is supported by little more than the same type of overbroad, generalized assertions."
In Dominguez, unlike this case, the district court analyzed the admissibility of Snyder's declaration.
Dominguez, 894 F.3d at 120-21. The Third Circuit concluded that the district court properly excluded
Snyder's declaration. Id. Here, however, the Court is not addressing the admissibility of Snyder's
declaration or Navient's Motion in Limine regarding it. The Court holds that while Snyder's declaration is
admissible at the summary judgment stage, it does not create a genuine dispute of material fact on
whether the ININ system functions as an A TDS.

6

-18-

Id. at 120. "Notably absent, however, is any explanation of how the Email SMS system actually
did or could generate random telephone numbers to dial."

Id.

Like in Dominguez, the

conclusion in Snyder's declaration here is supported only by overbroad generalizations.
Crucially, Snyder does not explain how the ININ system actually did or could generate
telephone numbers to be called. Accordingly, Snyder's declaration does not create a genuine
dispute of material fact that the ININ system is an A TDS.

See also Ramos v. Hopele of Fort

Lauderdale, LLC, 334 F. Supp. 3d 1262, 1265 (S.D. Fla. 2018) ("The Court finds that Snyder's
testimony is insufficient to create a genuine dispute of material fact ... that the EZ-program
texting system is not an automatic telephone dialing system under the Telephone Consumer
Protection Act.").
Moreover, in another case, Snyder testified that the ININ system does not have the
capacity to generate random or sequential numbers. In that case, Snyder testified as follows in a
deposition:
Q:

[The ININ system] doesn't have the capability, as you used, to whole
cloth generate random numbers for dialing?

A:

That's right. Just doesn't create them and generate them out of thin air.

Q:

And likewise it doesn't have the capability to generate whole cloth a
sequential number list independent of what its fed for a particular
campaign.

A:

That's right. No automatic dialing systems, actually, that I know if in the
United States have had that functionality for 20 to 25 years.

(ECF No. 58 <JI 29; ECF No. 59-7 at 23-25.)

-19-

In conclusion, the Court finds that there is no genuine dispute of material fact that the
ININ system that Navient used to call Smith is not an ATDS under the TCPA. Therefore,

Smith's TCPA claim fails as a matter of law and Navient is entitled to summary judgment.

B.

The Court Will Decline to Exercise Supplemental Jurisdiction Over Smith's
Invasion-of-Privacy Claim

After dismissing of Smith's TCP A claim, Smith's invasion-of-privacy claim under
Pennsylvania law remains.
"In any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to claims in
the action within such original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution." 28 U.S.C. § 1367(a). However, "district
courts may decline to exercise supplemental jurisdiction over a claim under subsection if ... the
district court has dismissed all claims over which it has original jurisdiction." Id. § 1367( c)(3).
"If it appears that the federal claim is subject to dismissal under F.R.Civ.P. 12(b)(6) or could be

disposed of on a motion for summary judgment under F.R.Civ.P. 56, then the court should
ordinarily refrain from exercising jurisdiction in the absence of extraordinary circumstances."

Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1976).
Because Navient is entitled to summary judgment on Smith's TCPA claim, all the claims
over which this Court has original jurisdiction will be dismissed. The Court does not find that
there are extraordinary circumstances that justify exercising supplemental jurisdiction over
Smith's invasion-of-privacy claim under Pennsylvania law. Therefore, the Court declines to
exercise supplemental jurisdiction and will dismiss Smith's invasion-of-privacy claim.
-20-

V.

Conclusion
For the foregoing reasons, Navient's Motion for Summary Judgment (ECF No. 56) is

GRANTED. The Court finds that Navient is entitled to summary judgment on Smith's TCPA

claim, and the Court will not exercise supplemental jurisdiction over Smith's invasion-ofprivacy claim. Further, Navient's Motion in Limine (ECF No. 60) is DENIED as moot.
A corresponding order follows.

-21-

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
GREGORY J. SMITH,

)

)
)

Plaintiff,

)
v.

CIVIL ACTION NO. 3:17-191

)

JUDGE KIM R. GIBSON

)
)

NA VIENT SOLUTIONS, LLC,

)
)
)

Defendant.

./Ii
AND NOW, this

)

ORDER

_!j___!_ day of August, 2019, upon consideration of Defendant Navient

Solutions, LLC's Motion for Summary Judgment (ECF No. 56), IT IS HEREBY ORDERED that
the Motion is GRANTED.
IT IS FURTHER ORDERED that Defendant's Motion zn Limine (ECF No. 60) is
DENIED as moot.

BY THE COURT:

-~
KIM R. GIBSON
UNITED STA TES DISTRICT JUDGE