Case 3:14-cv-01951-JAH-BGS Document 64 Filed 07/05/23 PageID.180 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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` Case No.: 11md02295 JAH-BGS
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`Member cases:
` All member cases
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`ORDER GRANTING DEFENDANT’S
`MOTION FOR SUMMARY
`JUDGMENT AND DENYING
`DEFENDANT’S MOTIONS TO
`EXCLUDE AS MOOT
`[Doc. Nos. 673, 850, 885]
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`IN RE PORTFOLIO RECOVERY
`ASSOCIATES, LLC, TELEPHONE
`CONSUMER PROTECTION ACT
`LITIGATION
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`Pending before the Court are Defendant’s motion for summary judgment (Doc. No.
`850) and motions to exclude (Doc. Nos. 673, 885). For the reasons discussed below, the
`Court GRANTS Defendant’s motion for summary judgment and DENIES Defendant’s
`motions to exclude as moot.
`
`DISCUSSION
`
`I. Motion for Summary Judgment
`A. Legal Standard
`Summary judgment is properly granted when “there is no genuine issue as to any
`material fact and the movant is entitled to judgment as a matter of law.” FED.R.CIV.P.
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`56(a). Entry of summary judgment is appropriate “against a party who fails to make a
`showing sufficient to establish the existence of an element essential to that party’s case,
`and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
`477 U.S. 317, 322 (1986). The party moving for summary judgment bears the initial
`burden of establishing an absence of a genuine issue of material fact. Celotex, 477 U.S. at
`323. Where the party moving for summary judgment does not bear the burden of proof at
`trial, as here, it may show that no genuine issue of material fact exists by demonstrating
`that “there is an absence of evidence to support the non-moving party’s case.” Id. at 325.
`The moving party is not required to produce evidence showing the absence of a genuine
`issue of material fact, nor is it required to offer evidence negating the non-moving party’s
`claim. Lujan v. National Wildlife Fed’n, 497 U.S. 871, 885 (1990); United Steelworkers
`v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989). “Rather, the motion may,
`and should, be granted so long as whatever is before the District Court demonstrates that
`the standard for the entry of judgment, as set forth in Rule 56(c), is satisfied.” Lujan, 497
`U.S. at 885 (quoting Celotex, 477 U.S. at 323).
`Once the moving party meets the requirements of Rule 56, the burden shifts to the
`party resisting the motion, who “must set forth specific facts showing that there is a genuine
`issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Without
`specific facts to support the conclusion, a bald assertion of the “ultimate fact” is
`insufficient. See Schneider v. TRW, Inc., 938 F.2d 986, 990-91 (9th Cir. 1991). A material
`fact is one that is relevant to an element of a claim or defense and the existence of which
`might affect the outcome of the suit. The materiality of a fact is thus determined by the
`substantive law governing the claim or defense. Disputes over irrelevant or unnecessary
`facts will not preclude a grant of summary judgment. T.W. Electrical Service, Inc. v.
`Pacific Electrical Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson,
`477 U.S. at 248).
`When making this determination, the court must view all inferences drawn from the
`underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475
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`U.S. at 587. “Credibility determinations, the weighing of evidence, and the drawing of
`legitimate inferences from the facts are jury functions, not those of a judge, [when] ... ruling
`on a motion for summary judgment.” Anderson, 477 U.S. at 255.
`B. Analysis
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`Defendant argues it is entitled to summary judgment because Plaintiffs are unable,
`as a matter of law, to demonstrate that any of Defendant’s calling technologies constitute
`an automatic telephone dialing system (“ATDS”) under the Telephone Protection Act
`(“TCPA”). Specifically, Defendant argues there can be no TCPA liability where the
`telephone number in question was not randomly or sequentially generated, and Plaintiffs
`expressly disclaim that any of the numbers called were generated with a random or
`sequential number generator. Defendant also contends its calling technology used to call
`Plaintiffs, Asimut, PRANet, and CCT, are not capable of automatic, non-manual dialing
`and, therefore, Plaintiffs cannot meet their burden to show Defendant used an ATDS to
`place those calls. Defendant further argues Plaintiff cannot recover treble damages because
`there was no violation and, Defendant was at all times acting on a “reasonable
`interpretation” that the TCPA required random or sequential dialing and did not know that
`the Asimut technology it used to call Plaintiffs could be considered an ATDS.
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`In opposition, Plaintiffs contend the Court should limit the issues of the summary
`judgment motion to common issues relating to the nature of Defendant’s telephone dialing
`systems and the only issue before the Court is whether there is a genuine issue of material
`fact as to the nature of Defendant’s telephone dialing systems. They argue Defendant fails
`to demonstrate the dialing systems do not use a random or sequential number generator to
`store numbers in the dialing process. They further contend Defendant’s argument that its
`systems did not have the ability to randomly or sequentially generate telephone numbers is
`not relevant because Plaintiffs argue Defendant’s system had the ability to store numbers
`using a random or sequential number generator.
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`This Court previously determined, based upon the Supreme Court’s decision in
`Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021), the definition of an autodialer under the
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`TCPA does not concern systems that randomly or sequentially store and dial numbers from
`a list that is generated in a non-random and non-sequential way. See Order Denying Plas’
`Application to Conduct Discovery at 6-7 (Doc. No. 843). Plaintiffs disagree with the
`Court’s determination. Since the Court’s previous decision and during the pendency of the
`instant motion for summary judgment, the Ninth Circuit has concluded that “an ‘automatic
`telephone telephone dialing system’ must generate and dial random or sequential telephone
`numbers under the TCPA’s plain text.” Borden v. eFinancial, LLC, 53 F4th 1230, 1233
`(9th Cir. 2022); see also Brickman v. United States, 56 F.4th 688 (9th Cir. 2022).
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`Plaintiffs provide no evidence that the numbers called were randomly or sequentially
`generated and, in fact, acknowledge they were not. See Amended Complaint ¶¶ 25, 37
`(Doc. No. 484) (Plaintiffs’ allegation that the numbers dialed were obtained from skip-
`tracing services.); Motion to Open Discovery Hearing Transcript 3:12–15 (Doc. No. 804)
`(“Obviously, this is a debt collection type cause so they’re not making up ten-random digits
`of numbers; they have a database of numbers and they are calling from that database list.”).
`Accordingly, the undisputed evidence demonstrates Defendant did not utilize an ATDS
`and, therefore, Defendant is entitled to judgment.
`II. Motions to Exclude
`
`Defendant moves to exclude testimony of Plaintiffs’ expert Randall Snyder pursuant
`to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrel-Dow Pharmaceuticals,
`509 U.S. 579 (1993). Because the Court finds the undisputed evidence demonstrates
`Defendant did not utilize an ATDS based on Plaintiffs’ acknowledgment that the numbers
`dialed were not randomly or sequentially generated, and, therefore, does not reach any
`issue as to which the testimony is relevant, the Court denies Defendant’s motions to
`exclude as moot.
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`CONCLUSION AND ORDER
`Based on the foregoing, IT IS HEREBY ORDERED:
`Defendant’s motion for summary judgment (Doc. No. 850) is GRANTED;
`1.
`Defendant’s motions to exclude (Doc. Nos. 673, 885) are DENIED as moot;
`2.
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`Case 3:14-cv-01951-JAH-BGS Document 64 Filed 07/05/23 PageID.184 Page 5 of 5
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`The Clerk of Court shall enter judgment accordingly.
`3.
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`DATED: July 5, 2023
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`_________________________________
`JOHN A. HOUSTON
`United States District Judge
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