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Lamkin v. Portfolio Recovery Associates, LLC

United States District Court, E.D. California

September 25, 2019

PAM LAMKIN, an individual, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.

          MEMORANDUM AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT

          WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE.

         Plaintiff 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 witness.

         I. Factual and Procedural Background

         Defendant 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).

         After 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.[1](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.)

         In 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.”[2] (Pl.’s Mem. in Supp. of Mot. Summ. J. at 11-12 (Docket No. 15).)

         Plaintiffs 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.).

         In 2018, plaintiff filed this lawsuit against PRA, [3] 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.

         II. Discussion

         Summary 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.

         A. The Telephone Consumer Protection Act (TCPA)

         Congress 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).

         Defendant 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.

         Therefore, 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.

         B. The ...


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