United States District Court, N.D. Alabama, Eastern Division
VIRGINIA EMERSON HOPKINS, Senior United States District Judge
a civil action filed by Plaintiff Stacy Green against
Defendant Navient Solutions, LLC (“Navient”).
(See doc. 1). The Complaint (doc. 1) sets out one
count for violation of Section 227(b)(1)(A)(iii) of the
Telephone Consumer Protection Act (the “TCPA”)
for “placing repeated calls using an automatic
telephone dialing system to [Ms. Green]'s cellular
telephone.” (Id. at 5, ¶ 32). This count
arises out of Navient's attempt to “collect an
alleged student loan.” (Id. at 3, ¶ 15).
the Court is Navient's Motion for Summary Judgment (doc.
30) (the “Motion”). Navient filed the Motion and
its Memorandum of Law (doc. 31) in support of the Motion on
August 28, 2018. Ms. Green filed her opposition (doc. 34) to
the Motion on September 25, 2018. Navient then filed its
reply brief (doc. 37) in support of the Motion on October 16,
2018. Accordingly, the Motion is ripe for review. For the
reasons stated in this opinion, the Motion is due to be
GRANTED, and this case is due to be
DISMISSED WITH PREJUDICE
Federal Rule of Civil Procedure 56, summary judgment is
proper if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary
judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” (internal quotation marks
and citation omitted)). The party requesting summary judgment
always bears the initial responsibility of informing the
court of the basis for its motion and identifying those
portions of the pleadings or filings that it believes
demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings in answering the movant. Id.
at 324. By its own affidavits-or by the depositions, answers
to interrogatories, and admissions on file-it must designate
specific facts showing that there is a genuine issue for
underlying substantive law identifies which facts are
material and which are irrelevant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
doubts about the facts and all justifiable inferences are
resolved in favor of the non-movant. Chapman v. Al
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Anderson, 477 U.S. at 248. A
dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the
non-movant to rebut the moving party's evidence is merely
colorable, or is not significantly probative, summary
judgment may still be granted. Id. at 249.
movant may satisfy its initial evidentiary burden depends on
whether that party bears the burden of proof on the given
legal issues at trial. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the
movant bears the burden of proof on the given issue or issues
at trial, then it can only meet its burden on summary
judgment by presenting affirmative evidence showing
the absence of a genuine issue of material fact-that is,
facts that would entitle it to a directed verdict if not
controverted at trial. Id. (citation omitted). Once
the moving party makes such an affirmative showing, the
burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating
the existence of a triable issue of fact.” Id.
(emphasis added) (citation omitted).
issues on which the movant does not bear the burden of proof
at trial, it can satisfy its initial burden on summary
judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of
evidence to support the non-movant's case on the
particular issue at hand. Id. at 1116. In such an
instance, the non-movant must rebut by either (1) showing
that the record in fact contains supporting evidence
sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency. Id. at 1116-17. When responding, the
non-movant may no longer rest on mere allegations; instead,
it must set forth evidence of specific facts. Lewis v.
Casey, 518 U.S. 343, 358 (1996). The second method a
movant in this position may use to discharge its burden is to
provide affirmative evidence demonstrating that the
non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the
non-movant must rebut by offering evidence
sufficient to withstand a directed verdict at trial on the
material fact sought to be negated. Id.
STATEMENT OF FACTS
October 2005, Ms. Green obtained a Federal Consolidation Loan
(“Student Loan”) under the Federal Family
Education Loan Program (“FFELP”). Under the
FFELP, the Student Loan is guaranteed against default by the
United States Department of Education.
serviced [Ms.] Green's [Student Loan]” (doc. 34 at
3, ¶ 2) during the relevant time period of May 2016
through August 2016. (Doc. 31 at 2, ¶ 2) (citing doc.
31-1 at 2, ¶ 5). Since disbursement of the Student Loan,
Ms. Green made a total of seventeen payments, in the
aggregate amount of $1, 780.24, toward the Student Loan.
However, “[Ms.] Green stopped making payments on her
[Student Loan].” (Doc. 34 at 3, ¶
Navient has not received any payments toward the Student Loan
since the conclusion of an administrative forbearance on
September 2, 2015.
effort to collect the amount Ms. Green owes in connection
with the Student Loan, Navient placed calls to Ms.
Green's cellular telephone number ending in 9892 during
the time that Navient serviced the Student Loan. The calls at
issue in this case occurred “[b]etween May 2016,
through and including August 26, 2016.” (Doc. 31 at 4,
¶ 9) (citing doc. 31-1 at 3, ¶ 9). Navient alleges
that the Student Loan “was past due when the
aforementioned calls were made.” (Doc. 31 at 4, ¶
9; doc. 31-1 at 3, ¶ 9).
Green contends that Navient called her cellular telephone
number ending in 9892 using an automatic telephone dialing
system after she allegedly revoked her consent on or around
May 2016. More specifically, throughout the period
Navient was calling her, including the period from May 2016
through August, 26, 2016,  Ms. Green received repeated calls and
voice messages from Navient with an audibly prerecorded or
computer-generated voice. Ms. Green told Navient's live
representatives to stop calling multiple times, starting no
later than May 2016. Ms. Green continued to tell
Navient's live representatives to stop calling her until
Navient's calls ceased. Ms. Green found Navient's
repeated calls stressful, frustrating, annoying, harassing,
undignified, and a waste of time.
Motion requires the Court to determine whether, based on the
undisputed facts, Navient “is entitled to judgment as a
matter of law because it did not violate the TCPA in making
the subject calls to [Ms. Green]'s cellular
telephone.” (Doc. 31 at 5). Section 227(b)(1)(A)(iii)
of the TCPA provides as follows:
Restrictions on use of automated telephone equipment
shall be unlawful for any person within the United States, or
any person outside the United States if the recipient is
within the United States-
(A) to make any call (other than a call made
for emergency purposes or made with the prior express consent
of the called party) using any automatic telephone dialing
system or ...