United States District Court, E.D. Wisconsin
GENE J. FRISCH, Plaintiff,
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.
PAMELA PEPPER, United States District Judge
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 cross-motions 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.
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.
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.
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.
STANDARD OF REVIEW
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.
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
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).
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.
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 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.
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 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.
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 ...