United States District Court, E.D. California
MEMORANDUM AND ORDER RE: CROSS-MOTIONS FOR SUMMARY
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE.
Pam Lamkin filed this lawsuit against defendant Portfolio
Recovery Associates, LLC (“PRA”) alleging that
defendant auto-dialed calls to plaintiff’s cellphone
without her express consent, in violation of the Telephone
Consumer Protection Act (“TCPA”). 47 U.S.C.
§ 227. Before the court are the parties’
cross-motions for summary judgment, and defendant’s
motion to strike the testimony of plaintiff’s expert
Factual and Procedural Background
PRA purchases consumer debt and then attempts to collect the
debt from the debtor. (Pl’s Mem. in Supp. Summ. J. at 2
(Docket No. 15).) Prior to August 1991, plaintiff applied for
and received a credit card from Wells Fargo Bank.
(Def.’s Resp. to Pl.’s Statement of Undisputed
Facts (“SUF”) at 4-5, ¶ 17 (Docket No. 19).)
Later that year, after plaintiff failed to make all the
payments on the account, Wells Fargo charged off the account.
(Id. at 5, ¶ 18.) In December of 2007, PRA
purchased Lamkin’s credit card debt. (Id. at
5, ¶ 19).
the purchase, PRA began a process known as “skip
tracing, ” where a debt buyer contacts third-party
credit reporting agencies to solicit contact information
those agencies may have on the debtors. (Def.’s Resp.
to Pl.’s SUF at 8, ¶ 31.) PRA ultimately obtained
plaintiff’s cell phone number from a Credit Bureau
report in March 2008. (Id.) PRA did not receive
Lamkin’s cell phone number from any other source.
(Id. at 4, ¶ 15.) PRA then made 199 calls to
plaintiff’s cell number between February 19, 2008 and
August 16, 2010 to collect the debt.(Stip. at 2, ¶ 3 (Docket
No. 12).) PRA never determined if plaintiff had expressly
consented to be contacted. (Id. at 4, ¶ 9). On
August 16, 2010, plaintiff requested that PRA cease all
contact with plaintiff. (Def.’s SUF at 6, ¶ 30, 31
(Docket No. 17-2).) PRA did not contact plaintiff thereafter.
(Id. at 6, ¶ 32.)
making the calls, PRA used the Avaya Proactive Contact
Technology (“Avaya”). When the calls were made,
Avaya had the ability to store telephone numbers and did in
fact store telephone numbers. (Def.’s Resp. to
Pl.’s SUF at 3, ¶ 9.) Avaya could also dial these
stored telephone numbers without human intervention.
(Id. at 3, ¶ 10.) Indeed, the calls were made
in the predictive dialing mode (id. at 2, ¶ 5), under
which the dialing system calls the stored numbers
“automatically and directly.” (Pl.’s Mem.
in Supp. of Mot. Summ. J. at 11-12 (Docket No. 15).)
rely on the testimony of Randall Snyder to further describe
the functionality of Avaya. According to Snyder, Avaya has
the “capacity to store or produce telephone numbers to
be called, using a random or sequential number generator and
to dial telephone numbers without human intervention.”
(Decl. Randall Snyder, at ¶ 33, 44, Ex. A (Docket No.
18-1). Avaya, Snyder continues, can also call numbers
“using a random or sequential number generator”
(id. at ¶ 35), can make “automatic calls
from stored lists of telephone [numbers] and has the capacity
to dial stored numbers automatically” (id.).
2018, plaintiff filed this lawsuit against PRA,  alleging
that, because Avaya qualifies as an automatic telephone
dialing system under the Telephone Consumer Protection Act
(“TCPA”) (Compl. at 4, ¶ 17 (Docket No. 1)),
and because PRA failed to obtain plaintiff’s express
consent prior to calling her cell phone (id. at 6,
¶ 31), each call constituted a violation of the TCPA.
Plaintiff requests treble damages for PRA’s alleged
“willful or knowing” violation of the statute.
(Id. at 7, ¶ 35(a).) Both parties now seek
summary judgment under Federal Rule of Civil Procedure 56 on
plaintiff’s sole claim under the TCPA. Defendant also
seeks to strike Snyder’s testimony.
judgment is appropriate when the movant shows that no genuine
dispute as to any material fact remains and the movant is
entitled to prevail as a matter of law. Fed.R.Civ.P. 56.
Telephone Consumer Protection Act (TCPA)
enacted the TCPA to “protect the privacy interests of
residential telephone subscribers by placing restrictions on
unsolicited, automated telephone calls.” S. Rep. No.
102-178. Under the Act, it is “unlawful for any person
. . . (A) to make a call (other than a call made . . . with
the prior express consent of the called party) using any
automatic telephone dialing system . . . (iii) to any
telephone number assigned to a . . . cellular telephone
service.” 47 U.S.C. § 227(b)(1). Thus, “the
three elements of a TCPA claim are: (1) the defendant called
a cellular telephone number; (2) using an automatic telephone
dialing system; (3) without the recipient’s prior
express consent.” Meyer v. Portfolio Recovery
Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012).
does not dispute that PRA called plaintiff’s cellular
telephone. (Def.’s Resp. to Pl.’s SUF at 2,
¶ 3 (Docket No. 19.) Defendant also does not offer any
evidence that PRA had plaintiff’s prior express consent
to call her 199 times. On the contrary, defendant admits that
it obtained Ms. Lamkin’s number only through a
third-party credit report.
with respect to liability, the issue in this case is only
whether PRA’s Avaya constitutes an automatic telephone
dialing system (“ATDS”). Defendant argues that,
to constitute an ATDS, a system must “generate random
or sequential numbers.” (Def.’s Mem. in Supp. of
Mot. for Summ. J. at 3 (Docket No. 17-1).) Plaintiff, on the
other hand, argues that an ATDS is not limited to systems
that generate and dial such numbers, but also includes
devices with the capacity to dial stored numbers
automatically. (Pl.’s Mem. in Supp. of Mot. for Summ.
J. at 6 (Docket No. 15). Each party relies on Ninth Circuit
decisions. This court now applies the appropriate definition
of ATDS under the Act.