Frisch v. AllianceOne Receivables Management Inc

Filing 45

ORDER signed by Judge Pamela Pepper on 1/3/2017 DENYING 13 Plaintiff's motion for summary judgment and GRANTING 19 Defendant's motion for summary judgment. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
GENE J. FRISCH,

Case No. 15-cv-926-pp
Plaintiff,

v.
ALLIANCEONE RECEIVABLES
MANAGEMENT, INC.,
Defendant.
______________________________________________________________________________
DECISION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 19) AND DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 13)
______________________________________________________________________________
Plaintiff Gene J. Frisch, representing himself, filed a complaint against
defendant AllianceOne Receivables Management, Inc., alleging that the
defendant violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.
§227 et seq., by placing unsolicited automatically-dialed telephone calls to his
cellular phone between January 8, 2013 and February 14, 2013. Dkt. No. 1.
The plaintiff alleges the defendant’s calls related to its efforts to collect a debt
from the plaintiff which he did not owe. Id. at 2. The parties have filed crossmotions for summary judgment. The court will deny the plaintiff’s motion and
grant the defendant’s motion, because the record evidence establishes that the
plaintiff cannot show, even making all reasonable inferences in his favor, that
the defendant used an automated dialer to place the calls in question.

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I.

BACKGROUND
The plaintiff alleged that from January 2013 through March 2013, the

defendant placed “at least” twenty-four calls to the plaintiff’s cell phone. Dkt.
No. 1 at 2; Dkt. No. 1-2 at 1-5. He alleged that he’d never had a relationship
with the defendant, and that the defendant placed these calls without his
consent. Dkt. No. 1 at 2.
The defendant appears to concede that it placed thirty-six calls to the
plaintiff’s cell phone number. Dkt. No. 21 at 5. The defendant indicates that
the plaintiff “apparently obtained a phone number previously owned by a
debtor and the defendant was seeking contact with that debtor” by making
those calls. Dkt. No. 20 at 1.
The issue is how the defendant placed those calls. The plaintiff alleges
that the defendant made the calls using an “Automatic Dial Announcing
Device,” or “ADAD,” in violation of the TCPA. Dkt. No. 15 at 1. The defendant
agrees that it has an automated dialing system—a “predictive dialing system”—
but that none of the thirty-six calls it placed to the plaintiff’s cell phone were
made with that system. Dkt. No. 21 at 6. Instead, the defendant states that
each of the calls was “made the old-fashioned way” – one of the defendant’s
agents manually “dialed the numbers, waited for the line to ring, and stayed on
the line until the call went to a voice mail, or otherwise terminated the call.”
Dkt. No. 26, at 2-3.

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II.

STANDARD OF REVIEW
A 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). A genuine issue of material
fact exists 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 evaluating summary judgment motions, courts must view the facts
and draw reasonable inferences in the light most favorable to the non-moving
party. Scott v. Harris, 550 U.S. 372, 378 (2007). The court may not weigh
conflicting evidence or make credibility determinations, Omnicare, Inc. v.
UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011), and must consider
only evidence that can “be presented in a form that would be admissible in
evidence,” Fed. R. Civ. P. 56(c)(2). The party seeking summary judgment has
the initial burden of showing that there is no genuine dispute and that it is
entitled to judgment as a matter of law. Carmichael v. Vill. of Palatine, 605
F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the moving party meets this burden, the party opposing the
motion must then “set forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 256.
III.

ANALYSIS
Under the TCPA, it is unlawful “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 [ATDS] or an artificial or
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prerecorded voice . . . to any telephone number assigned to a . . . cellular
telephone service.” 47 U.S.C. §227(b)(A). An “automatic telephone dialing
system” is defined as “equipment which has the capacity (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).
If, therefore, the defendant used an ATDS (the plaintiff calls it an ADAD)
to place calls to the plaintiff, it violated §227(b)(A). If the defendant did not use
an ATDS, the calls did not violate the statute. The defendant asserts that it did
not use an ATDS to call the plaintiff and, despite the plaintiff’s allegations and
arguments to the contrary, the record evidence does not demonstrate a genuine
dispute of material fact on this question.
In support of the defendant’s motion for summary judgment, it filed the
declaration of John Tutewohl, the defendant’s Vice President of Business
Analytics, dkt. no. 22, along with call logs reflecting the defendant’s calls to the
plaintiff’s cell number, and recordings of some of those calls, dkt. nos. 22-1
and 22-2. The Tutewohl declaration explains that Tutewohl has personal
knowledge of the defendant’s relevant business practices and methods,
“including its telephone systems.” Id., ¶3. Tutewohl states that during the time
relevant to this case, the defendant “used two separate methods to contact
consumers by telephone: (1) calls made manually directly by agents at [the
defendant]’s call center; and (2) calls made by [the defendant]’s predictive
dialing system,” which is an automated dialing system. Id., ¶10. The
defendant’s records document each call placed to the plaintiff’s cell phone
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number and the system used to make each call. Id., ¶8. Tutewohl explained
that both the defendant’s manual telephone calling system and its predictive
dialing system use “the Ontario Systems collection platform, called ‘FACS’
integrated with its calling solution Guaranteed Contacts (GC).” Dkt. No. 28,
¶10. Tutewohl goes on to say, however, that the GC calling solution didn’t store
phone numbers, so the computer wouldn’t be able to use that system to
randomly, or sequentially, call telephone numbers. Id., ¶11. Rather, it
generated a list of accounts, which then had to be reviewed by a human agent
to determine whether the defendant needed to call the owner of that account.
Id. at ¶12.
According to Tutewohl, the defendant has “scrubbing software” that
identifies numbers associated with cell phones, then “mandates” that the
defendant’s employees make calls to such numbers “manually, meaning that
they obtain the number from their file and actually dial the number . . . .” Id.,
¶9. If one of the defendant’s employees determined that a call to the cell phone
of an account holder was warranted by the circumstances of the account, “[the
call] was manually placed to the consumer by either dialing the consumer’s
phone number using the keypad on the agent’s computer or using the
computer mouse to point and click on a telephone number that was displayed
on the computer screen . . . .” Id., ¶12. Manually dialing a telephone number
“required four components i.e., a live calling agent, the agent’s computer, the
server, and the Guaranteed Contacts calling solution and the process of dialing
had to be initiated by the calling agent making a decision to call the consumer
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and then taking action to cause the number to be dialed.” Id., ¶14. Tutewohl
states that his review of the records confirmed that the defendant’s agents
manually placed each of the thirty-six calls to the plaintiff’s cell phone. Id.,
¶16.
As an initial matter, the plaintiff objects to Tutewohl’s declaration on the
grounds that it contains legal conclusions. The court disagrees. The court has
reviewed Tutewohl’s seven-page affidavit; it does not contain any legal
conclusions. It contains only factual statements.
Substantively, the plaintiff insists that the defendant did not manually
dial his cell phone number (as the Tutewohl declaration states). He asserts that
the process used by the defendant to dial the plaintiff’s cell phone number “is
not manual dialing. It is preview dialing utilizing FACS and the Guaranteed
Contacts autodialer.” Dkt. No. 39, ¶10. He also argues that the defendant did
not use the Ontario Systems Manual Contact System for calls it placed to him,
“because [the Ontario Systems Manual Contact System’s] development and
marketing postdates the calls in this case.” Dkt. No. 35 at 2.
In support of these arguments, the plaintiff relies on screen shots from
his cell phone’s call log and documents that the plaintiff argues reflect that a
telephone number that called the plaintiff’s cell phone is associated with the
defendant’s automated dialing system. Dkt. No. 1, Exs. 3, 4; Dkt. No. 17, Ex.
10; Dkt. No. 39, Ex. 11. The plaintiff contends that these documents constitute
evidence demonstrating the defendant called him using an ATDS, because the
defendant has registered an autodialer with the Texas Public Utility
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Commission that shares the same telephone number from which the plaintiff
received the defendant’s calls on his cell phone. Dkt No. 15, ¶¶1-9.
He also provided an affidavit, dkt. no. 17, and a declaration, dkt. no. 36
at 1-2. In both documents, he claims to have “personal knowledge” of certain
facts, but the information he provides comes from sources other than himself.
For example, in the declaration, he states that he has “personal knowledge” of
certain facts. Id., ¶2. He then lists four URLs, and the titles of the pages located
at those URLs. Id., ¶3. After listing these page addresses, the plaintiff then
explains that he “read that the PDFs . . . on Ontario Systems website to be in
regard to liability under the TCPA and I read their position on why the Manual
Contact System is not in violation of the TCPA.” He also states that he “saw
diagrams and read that separate data controls and voice paths are used for
manually dialing versus automatic dialing.” Id., ¶4. He also read “that Ontario
Systems Manual Contact System generates ‘Manual Dial’ on the Account Notes
in manual mode, employs scrubbing software for cell phones and make audio
recordings.” Id., ¶5.
The defendant responds that the court cannot consider any of these
materials as evidence on summary judgment because the plaintiff did not file
them in an admissible form. Dkt. No. 41. Fed. R. Civ. P. 56(c)(2) permits a party
to object that the evidence “cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.” Rule 56(c)(4)
requires that an affidavit “must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is
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competent to testify on the matters stated.” “To be admissible on summary
judgment, documents must be authenticated by and attached to an affidavit
that meets the requirements of Rule 56(e), and the affiant must be a person
through whom the exhibits could be admitted into evidence.” Pryor v. City of
Chicago, 726 F. Supp. 2d 939, 943-44 (N.D. Ill. 2010) (interpreting former Rule
56(e)) (citing Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir.
2006) and Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987)).
The defendant argues that Exhibits 3 (a July 18, 2015 ADAD Report from
the Public Utility Commission of Texas, Dkt. No. 1-2 at 7) and 4 (a July 24,
2012 copy of the defendant’s ADAD Registration, Dkt. No. 1-2 at 10) to the
plaintiff’s complaint are not admissible. They argue that the two exhibits are
not self-authenticating government records, and that (a) the plaintiff’s affidavit
does not aver that he is in possession of the certified copy of Exhibit 4, and (b)
his affidavit does not show that he has personal knowledge that the
information contained in these documents is true and accurate. Dkt. No. 41, 14. Similarly, the defendants contend that Exhibit 10 (a CD containing
documents the plaintiff purportedly retrieved from Ontario Systems, LLC’s
website) contains hearsay, is not authenticated, and lacks foundation to be
admissible. Id. at 2-3. Exhibit 11 consists of written discovery responses in a
different case (Norman v. AllianceOne Receivables Management, Inc., 14-cv5930 (N.D. Ill.), discussed further below), which the defendants maintain are
irrelevant here. Id. at 2. Finally, the defendants argue that the plaintiff’s second
declaration does not respond to or contradict Tutewohl’s declaration, and
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contend that the information in it is inadmissible because it consists of
unauthenticated hearsay about what the plaintiff allegedly read on third-party
websites. Id. at 2-3.
The court agrees that there are evidentiary problems with the evidence
the plaintiff has presented. Even if the documents were admissible, however,
the plaintiff still would fall short of showing a genuine dispute as to whether
the defendant actually called him using an ATDS. The Tutewohl declaration,
which is uncontroverted, established that the defendant followed a manual
process each time it called the plaintiff’s cell phone number. Dkt. No. 28, ¶16.
The plaintiff’s evidence, even if admissible, shows only that the defendant has
the capability to use an automated predictive dialing system—a fact the
defendant does not dispute. The fact that the defendant has the ability to use
an automated predictive dialing system--even one that may use the same
outbound telephone number as the defendant used to contact the plaintiff-does not create a genuine issue as to whether the defendant used that system
to call the plaintiff. Id., ¶21. The Tutewohl declaration confirms that the
numbers available for use by the defendant’s predictive dialing system “are
equally available to use in manually dialing calls as was obviously done in this
case,” and Tutewohl asserts, under penalty of perjury, that none of the calls
were placed to the plaintiff automatically. Id., ¶¶16, 21.
The plaintiff cites to Norman v. AllianceOne Receivables Mgmt., 637 F.
App’x 214 (7th Cir. 2015) in support of his arguments. In Norman, the Seventh
Circuit affirmed the district court’s grant of summary judgment in favor of the
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defendant. In that case, as here, the defendant filed “a declaration from the
company's Vice President of Business Analytics and a log of the calls to
Norman's phone to show that he was not autodialed.” Id. at 215. The plaintiff
in Norman submitted evidence which, even if it had been admissible, would
have established only “that the company’s capabilities include autodialers, but
not that it used that capability always or even often, let alone in cases like
Norman’s.” Id. The court held that, “[w]ith the call log showing that AllianceOne
manually called Norman, and no contrary evidence about those calls in the
record, the district court correctly granted summary judgment. No reasonable
jury could conclude from this evidence that an autodialer called Norman.” Id.
(citing Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 685 (7th Cir. 2013) (no
material dispute requiring trial in TCPA suit when corporate representative
explained in detail how records were compiled and plaintiff failed to
demonstrate that any of the records were inaccurate)).
Rather than supporting the plaintiff’s arguments, Norman supports the
defendant’s position. The defendant here supported its motion for summary
judgment with record evidence demonstrating that it manually dialed each of
the calls placed to the plaintiff’s cell phone number. The plaintiff has not
presented any evidence that the defendant actually used its predictive dialer to
call the plaintiff via an ATDS, and in response to the defendant’s motion, he
failed to create a genuine dispute on the issue. The defendant’s evidence that it
placed each call to the plaintiff manually is uncontroverted.

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The court finds that the defendant has supported its motion for
summary judgment with admissible evidence demonstrating that the calls
placed by the defendant’s employees to the plaintiff’s cell phone were dialed
manually. Accordingly, the court will deny the plaintiff’s motion for summary
judgment, and will enter summary judgment in favor of the defendant because
there is no evidence in the record on which a reasonable jury could conclude
that the defendant violated the TCPA by using an automated dialer to call him.
IV.

CONCLUSION
The court concludes that there is no dispute as to any genuine issue of

material fact, and the defendant is entitled to judgment as a matter of law.
Accordingly, the court DENIES the plaintiff’s motion for summary judgment,
Dkt. No. 13, GRANTS the defendant’s motion for summary judgment, Dkt. No.
19, and DISMISSES the plaintiff’s complaint in its entirety. The clerk will enter
judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within thirty days of the entry of
judgment. See Federal Rule of Appellate Procedure 3, 4. This court may extend
this deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the thirty-day deadline. See
Federal Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
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from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within twenty-eight days of
the entry of judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure
60(b) must be filed within a reasonable time, generally no more than one year
after the entry of the judgment. The court cannot extend this deadline. See
Federal Rule of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 3rd day of January, 2017.

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