United States District Court, D. New Jersey, Camden Vicinage
& SILVERMAN, P.C. By: Kareem Raouf Seifeldin, Esq.;
Rachel Rebecca Stevens, Esq.; Richard J. Albanese, Esq.; Amy
Lynn Bennecoff Ginsburg, Esq. 30 East Butler Pike Ambler,
Pennsylvania 19002 Counsel for Plaintiff Maurice Collins
OFFICES OF KENNETH L. BAUM, LLC By: Kenneth L. Baum, Esq. 167
Main Street Hackensack, New Jersey 07601 Counsel for
Defendant National Student Loan Program
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE.
Maurice Collins (“Plaintiff”) brought this action
against Defendant National Student Loan Program
(“Defendant” or “NSLP”), alleging
violations of the Telephone Consumer Protection Act of 1991
(“TCPA”), 47 U.S.C. § 227. Now, this matter
comes before the Court upon the parties' cross-motions
for summary judgment. Plaintiff moves for Summary Judgment on
TCPA liability (“Pl.'s MSJ”)[Dkt. No. 36-1],
asserting that Defendant's system for initiating calls to
cell phones constitutes an Automated Telephone Dialing System
(“ATDS”). In opposition, Defendant filed its own
motion for Summary Judgment (“Def.'s
MSJ”)[Dkt. No. 39-5], arguing that its LiveVox Human
Call Initiator system requires manual human intervention to
initiate each phone call and, thus, does not meet the
definition of an ATDS under the TCPA. For the reasons set
forth below, the Court will DENY
Plaintiff's motion for summary judgment and
GRANT Defendant's motion for summary
FACTUAL AND PROCEDURAL BACKRGROUND
is a private, non-profit student loan guaranty agency in the
Federal Family Education Loan (“FFEL”) program.
Defendant's Statement of Undisputed Facts
(“DSUMF”)[Dkt. No. 39-4], at ¶ 1.
Defendant's business involves processing loan
applications submitted for guaranty, issuing loan guaranties,
assisting lenders with delinquent loans, paying lender claims
for loans in default, and collecting those loans.
Id. at ¶ 4. From January 7, 2015 through
October 3, 2015, NSLP made 206 calls to Plaintiff's cell
phone regarding his delinquent student loan payments.
Id. at ¶ 23. Plaintiff told Defendant's
representatives, on at least one occasion, to cease any
further calls to his cell phone. See Defendant's
Response to Plaintiff's Statement of Undisputed Material
Facts (“Def.'s Resp. to PSUMF”)[Dkt. No. 45],
at ¶ 6]. However, Defendant's representatives
continued to call Plaintiff's cell phone until October
2015, when the loan defaulted and was transferred to the
Department of Education for collection. See DSUMF at
initiated these calls to Plaintiff's cell phone number
using the LiveVox HCI system, a system purportedly designed
to involve human intervention in calls directed to cell phone
numbers. See Plaintiff's Response to
Defendant's Statement of Undisputed Material Facts
(“Pl.'s Resp. to DSUMF”)[Dkt. No. 47], at
¶ 8. The human intervention aspect of the HCI system
involves the combination of “clicker agents” and
“closer agents.” DSUMF, at ¶¶ 11-12.
Cell phone numbers are electronically uploaded into the HCI
system and presented to the clicker agent, who must
physically click a dialog box to launch the call.
Id. Although the HCI system selects which phone
numbers are presented to the clicker agent, the software
cannot dial the number unless the clicker agent manually
clicks the button to initiate the call. Id. If the
call is answered, the clicker agent then transfers the call
to a “closer agent” who speaks directly with the
call recipient. Id.
utilizes two LiveVox calling systems; one to reach cell phone
numbers (HCI) and the other to reach landlines (called
“Quick Connect”). See Pl.'s Resp. to
DSUMF at ¶ 15. Whereas the HCI software requires human
intervention to initiate each call, the Quick Connect system
uses some predictive capabilities to call landline numbers.
DSUMF at ¶ 15. It is undisputed that the calls to
Defendant's cell phone, the only calls at issue in this
case, were initiated using the HCI software. See
Pl.'s Resp. to DSUMF at ¶ 25. However, Plaintiff
alleges that HCI and Quick Connect are simply different
“modes” of operation for the same underlying
LiveVox system. See Pl.'s MSJ at 7. Thus,
Plaintiff alleges that the existence of Defendant's other
dialing system demonstrates that “Defendant's
LiveVox system as a whole clearly has the present
capacity without modification to place calls from a stored
list without human intervention.” Id.
disputes Plaintiff's characterization of its call
methodology, arguing that its cell phone and landline dialing
systems are separate and distinct, “and each has its
own dedicated and separate hardware and software.”
See Def.'s Resp. to PSUMF at ¶ 11.
Defendant explains that it designates each phone number,
received from lenders or loan servicers, as either a landline
or cell phone number and then has the number uploaded into
the appropriate segregated system. See id. Defendant
further contends that the LiveVox HCI system “does not
have the capacity to autodial” and “contains no
features that can be activated, deactivated, or added to the
system to enable autodialing.” See DSUMF at
21, 2017, Plaintiff commenced this action by filing a
one-count Complaint [Dkt. No. 1], alleging that Defendant
violated the TCPA by using an ATDS to call Plaintiff without
his prior express consent. The parties engaged in discovery,
and that process has concluded. On summary judgment, the
parties dispute whether Defendant's LiveVox HCI system
for initiating calls to Plaintiff meets the definition of an
ATDS under § 227(a)(1) of the TCPA.
SUMMARY JUDGMENT STANDARD
judgment shall be granted 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 fact is “material” only if
it might impact the “outcome of the suit under the
governing law.” Gonzalez v. Sec'y of Dept of
Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012). A
dispute is “genuine” if the evidence would allow
a reasonable jury to find for the nonmoving party.
determining the existence of a genuine dispute of material
fact, a court's role is not to weigh the evidence; all
reasonable inferences and doubts should be resolved in favor
of the nonmoving party. Melrose, Inc. v. City of
Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010). However, a
mere “scintilla of evidence, ” without more, will
not give rise to a genuine dispute for trial. Saldana v.
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). Moreover,
a court need not adopt the version of facts asserted by the
nonmoving party if those facts are “utterly discredited
by the record [so] that no reasonable jury” could
believe them. Scott v. Harris, 550 U.S. 372, 380
(2007). In the face of such evidence, summary judgment is
still appropriate “where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party.” Walsh v. Krantz, 386
Fed.Appx. 334, 338 (3d Cir. 2010).
movant has the initial burden of showing through the
pleadings, depositions, answers to interrogatories,
admissions on file, and any affidavits “that the
non-movant has failed to establish one or more essential
elements of its case.” Connection Training Servs.
v. City of Phila., 358 Fed.Appx. 315, 318 (3d Cir.
2009). “If the moving party meets its burden, the
burden then shifts to the non-movant to establish that
summary judgment is inappropriate.” Id. In the
face of a properly supported motion for summary judgment, the
nonmovant's burden is rigorous: he “must point to
concrete evidence in the record”; mere allegations,
conclusions, conjecture, and speculation will not defeat
summary judgment. Orsatti v. New Jersey State
Police, 71 F.3d 480, 484 (3d Cir. 1995); accord.
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010)
(citing Acumed LLC. v. Advanced Surgical Servs.,
Inc., 561 F.3d 199, 228 (3d Cir.
2009)(“[S]peculation and conjecture may not defeat
summary judgment.”). Moreover, “the court ...