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Few v. Receivables Performance Managment, LLC

United States District Court, N.D. Alabama, Eastern Division

November 13, 2018

TINA FEW, Plaintiff,
v.
RECEIVABLES PERFORMANCE MANAGEMENT, LLC, Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on reconsideration of Defendant Receivables Performance Management's amended motion for summary judgment. (Doc. 14). By separate action (doc. 29), the court vacated its August 9, 2018 Memorandum Opinion (doc. 21) and Final Order (doc. 22) granting the motion for summary judgment, and the court now considers the motion once again.

         Plaintiff Tina Few alleges that Receivables violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), by contacting her using an automated dialing machine in an attempt to collect a debt after she revoked her consent to receive debt-collection calls. Receivables moves for summary judgment arguing that (1) Ms. Few gave consent to receive debt-collection calls and could not revoke that consent as a matter of law; and (2) that Receivables did not use an “automatic telephone dialing system” (“ATDS”) or an “artificial or prerecorded voice” as defined by the TCPA.

         As the court explained in detail in its Memorandum Opinion on Ms. Few's motion for reconsideration, Ms. Few could unilaterally and orally revoke her consent to receive debt-collection calls as a matter of law. And because the parties have not engaged in any discovery, Receivables's motion for summary judgment on the issue of whether its telephone system is an ATDS or uses an artificial or prerecorded voice is premature. So the court WILL DENY Receivables's motion for summary judgment.

         I. STANDARD OF REVIEW

         Summary judgment is a significant mechanism for pre-trial resolution. Summary judgment allows a trial court to decide cases when no genuine disputes of material fact exist and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. The court will enter summary judgment if the movant establishes two necessary elements: (1) that there is no genuine dispute as to any material fact; and (2) that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).

         Receivables accepts Ms. Few's version of the material facts-Receivables does not dispute that it repeatedly called her after Ms. Few attempted to orally revoke her consent. But Receivables contends that it is entitled to judgment as a matter of law based on those facts.

         Receivables then adds a new factual allegation to the record and calls it “undisputed, ” but as the court discusses below, Receivables cannot on a motion for summary judgment contend that no genuine dispute of a material fact exists without first giving Ms. Few the opportunity to conduct sufficient discovery to determine whether she can dispute the material fact.

         II. FACTS

         Ms. Few's complaint arises out of unwanted calls to collect a debt. As part of a contract for television and internet services, Ms. Few gave express written consent for Receivables to call her telephone number to collect any debts owed for the services. (Doc. 6-3 at 15). On April 27, 2017, Ms. Few answered a call from Receivables and informed the caller that she no longer wished to receive calls from Receivables. (Doc. 18-1 at ¶¶ 3, 7). Receivables nevertheless continued calling. Ms. Few contends that she “has received in excess of 184 telephone calls and text messages from [Receivables].” (Doc. 1 at ¶ 12).

         III. DISCUSSION

         Ms. Few asserts that Receivables's phone calls and text messages violated the TCPA. The TCPA forbids any person to make a call “using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call . . . .” 47 U.S.C. § 227(b)(1)(A)(iii).

         But the TCPA allows calls “made with the prior express consent of the called party.” 47 U.S.C § 227(b)(1)(A). And it prohibits calls only from an “automatic telephone dialing system or an artificial or prerecorded voice” as defined by the TCPA. 47 U.S.C. § 227(b)(1)(A)(iii). Receivables contends that its phone calls did not violate the TCPA under both of these exceptions. The court disagrees.

         1. Revocat ...


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