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Holmes v. Capital One Financial Corporation

United States District Court, E.D. Michigan, Southern Division

August 15, 2016

NICHOLA S. HOLMES, Plaintiff,
v.
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.

         I. INTRODUCTION

         Plaintiff Nicholas Holmes sues defendant Capital One Financial Corporation ("Capital One"), alleging violations of 47 U.S.C. § 227, the Telephone Consumer Protection Act ("TCPA"), and complaining that Capital One made unsolicited telephone calls to him.[1] [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.

         II. ANALYSIS

         A.

         "The 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).

         B.

         Under 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. §§ 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, ¶ 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 evidence.

         C.

         Holmes alleges that Capital One "failed to place [him] on its do-not-call-list, " in violation of § 227(c)(5). That section, in conjunction with § 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 § 227(c)(5) is without merit. Meadows v. Franklin Collection Serv., Inc., 414 F.Appx. 230, 235 (11th Cir. 2011).

         III. CONCLUSION

         For the preceding reasons, the Court RECOMMENDS Capital One's ...


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