United States District Court, E.D. Michigan, Southern Division
NICHOLA S. HOLMES, Plaintiff,
CAPITAL ONE FINANCIAL CORPORATION, Defendant.
Nicholas Holmes, Plaintiff, Pro Se.
Capital One Financial Corporation, Defendant, represented by
Erin L. Hoffman, Faegre Baker Daniels LLP & Erin M.
Pawlowski, Dickinson Wright.
REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT [R. 17]
ELIZABETH A. STAFFORD, Magistrate Judge.
Nicholas Holmes sues defendant Capital One Financial
Corporation ("Capital One"), alleging violations of
47 U.S.C. Â§ 227, the Telephone Consumer Protection Act
("TCPA"), and complaining that Capital One made
unsolicited telephone calls to him. [R. 1-3, PgID 13-17].
Capital One filed a motion for summary judgment, [R. 17], to
which Holmes did not timely respond, and the Court denied his
belated motion for an extension of time to respond. [R. 21].
For the reasons set forth below, the Court RECOMMENDS that
Capital One's motion [R. 17] be GRANTED.
Court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). See also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250-57 (1986); Pittman v.
Cuyahoga County Dep't of Children & Family Servs.,
640 F.3d 716, 723 (6th Cir. 2011). The party seeking summary
judgment bears the initial burden of informing the Court of
the basis for its motion, and must identify particular
portions of the record that demonstrate the absence of a
genuine dispute as to any material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Alexander v.
CareSource, 576 F.3d 551, 558 (6th Cir. 2009). If the
movant satisfies its burden, the burden shifts to the
non-moving party to go beyond the pleadings and set forth
specific facts showing a genuine issue for trial.
Celotex, 477 U.S. at 324; Wrench LLC v. Taco
Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001). "The
failure to present any evidence to counter a well-supported
motion for summary judgment alone is grounds for granting the
motion." Everson v. Leis, 556 F.3d 484, 496
(6th Cir. 2009).
the TCPA, it is unlawful for a party to place a phone call to
a cellular phone's number using an "automatic
telephone dialing system, " which is defined as
equipment that can store or produce telephone numbers and
dial them. Â§Â§ 227(a)(1), 227(b)(1)(iii). Holmes contends that
Capital One used such technology to dial his cellular phone,
in violation of the TCPA. [ See R. 1-3, PgID 14, Â¶
10]. But Capital One submitted with their motion the sworn
declaration of employee Jason Clemens, who states that
Capital One agents placed calls to Holmes regarding a debt
using "regular desk telephones" and the physical
dialing of Holmes' number; an automatic dialing system
was not used. [R. 17-1, PgID 119-20]. Such calls are not
prohibited by the TCPA. This evidence satisfies Capital Ones
initial burden and Holmes has failed to present any contrary
alleges that Capital One "failed to place [him] on its
do-not-call-list, " in violation of Â§ 227(c)(5). That
section, in conjunction with Â§ 227(c)(3), prohibits an entity
from making more than one "telephone solicitation"
within a twelve-month period to a person on the national
do-no-call-list. Capital One alleges that the calls placed to
Holmes concerned a debt, which Holmes appears to have
conceded in his complaint. [R. 17-1, PgID 120; R. 1-3, PgID
13 (describing Capital One as an entity that places calls for
the purposes of collecting debt)]. Debt collection calls are
not "telephone solicitations" within the meaning of
the TCPA, so Holmes's claim under Â§ 227(c)(5) is without
merit. Meadows v. Franklin Collection Serv., Inc.,
414 F.Appx. 230, 235 (11th Cir. 2011).
preceding reasons, the Court RECOMMENDS Capital One's