Green v. Navient Solutions, LLC

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS, Senior United States District Judge

         This is 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).

         Before 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

         I. STANDARD

         Under 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 trial. Id.

         The 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.

         How the 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).

         For 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.

         II. STATEMENT OF FACTS^[1]

         In October 2005, Ms. Green^[2] 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.

         “Navient 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).^[3] 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, ¶ 2).^[4] Navient has not received any payments toward the Student Loan since the conclusion of an administrative forbearance on September 2, 2015.

         In an 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).^[5] 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).^[6]

         Ms. 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.^[7] More specifically, throughout the period Navient was calling her, including the period from May 2016 through August, 26, 2016, ^[8] Ms. Green received repeated calls and voice messages from Navient with an audibly prerecorded or computer-generated voice.^[9] Ms. Green told Navient's live representatives to stop calling multiple times, starting no later than May 2016.^[10] Ms. Green continued to tell Navient's live representatives to stop calling her until Navient's calls ceased.^[11] Ms. Green found Navient's repeated calls stressful, frustrating, annoying, harassing, undignified, and a waste of time.^[12]

         III. ANALYSIS

         The 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:

         (b) Restrictions on use of automated telephone equipment

         (1) Prohibitions

         It 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 ...