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Collins v. National Student Loan Program

United States District Court, D. New Jersey, Camden Vicinage

December 20, 2018


          KIMMEL & 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

          LAW 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



         Plaintiff 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 judgment.


         Defendant 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 ¶ 24.

         Defendant 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.

         Defendant 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. (emphasis added).

         Defendant 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 ¶ 13.

         On July 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 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. Id.

         In 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).

         The 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 ...

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