Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Frisch v. Allianceone Receivables Management Inc.

United States District Court, E.D. Wisconsin

January 3, 2017

GENE J. FRISCH, Plaintiff,


          HON. PAMELA PEPPER, United States District Judge

         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 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.

         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.


         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 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 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 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.