United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT 
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
Kevin Pollack, proceeding pro se, filed an Amended Complaint
that alleged Defendants Nations Recovery Center, Inc. and
Core Resolutions, Inc. violated the Telephone Consumer
Protection Act, 47 U.S.C. § 227. Before the Court is
Defendants' Motion for Summary Judgment . The Court
has reviewed the briefs, and finds that a hearing is
unnecessary. See E.D. Mich. LR 7.1(f). For the
reasons set forth below, the Court will grant Defendants'
December 2015, Defendants began calling Plaintiff on his
cellular telephone from multiple telephone numbers. ECF 7,
PgID 40-41. During one call, Plaintiff said "hello"
and heard static prior to saying "hello" again, at
which point an operator responded. Id. at 41. On
several of the calls, Defendants' representatives acted
rudely and failed to identify themselves. Id. at
41-42. Plaintiff therefore brought suit and alleged that
Defendants used an automatic telephone dialing system or an
artificial or prerecorded voice to call Plaintiff without his
consent in violation of the TCPA. Id. at 42.
Court must 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). The moving party must identify specific
portions of the record "which it believes demonstrate
the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has met its burden, the non-moving
party may not simply rest on the pleadings, but must present
"specific facts showing that there is a genuine issue
for trial." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting
Fed.R.Civ.P. 56(e)) (emphasis omitted).
is material if proof of that fact would establish or refute
an essential element of the cause of action or defense.
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984). A dispute over material facts is genuine "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
considering a motion for summary judgment, the Court must
view the facts and draw all reasonable inferences " in
the light most favorable to the nonmoving party." 60
Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th
prevail, Plaintiff must show that Defendants used an
automatic telephone dialing system or an artificial or
prerecorded voice (an "ATDS"). 47 U.S.C. §
227(b)(1). An ATDS is statutorily defined as equipment with
the capacity to dial numbers that the equipment has stored or
produced using a random or sequential number generator. 47
U.S.C. § 227(a)(1). The FCC has interpreted
"capacity" as including both current and future
ability. See In re Rules & Regs. Implementing the
TCPA of 1991, 30 FCC Rcd. 7961, 7974 (July 10, 2015).
Defendant Nations Recovery Center, Inc. asserted in an answer
to an interrogatory that the telephone system at issue has no
present or potential capacity to automatically dial telephone
numbers and requires human intervention to initiate every
call. ECF 15-1, PgID 82, 84. Defendant Core Resolutions, Inc.
answered that it does not call debtors, including Plaintiff.
ECF 15-2, PgID 91. Defendants therefore have discharged their
argues that there are genuine issues of material fact because
he received: (1) a call with dead air or static, and (2) two
calls from Defendants from different numbers less than 60
seconds apart. ECF 17, PgID 122-23. Although the opinion is
not binding, the Court is persuaded by the Seventh
Circuit's holding that allegations of dead air are
insufficient to raise a genuine issue of material fact.
See Norman v. AllianceOne Receivable Mgmt., Inc.,
637 Fed.Appx. 214, 216 (7th Cir. 2015). Similarly,
Plaintiff's allegation that he received two calls less
than 60 seconds apart does not raise a genuine issue that
Defendants used an automatic dialer because such a feat could
be easily attained by a human representative.
also argues that Defendants agreed to provide a list of
amended interrogatories that would include responses
regarding an unaccounted-for call. ECF 17, PgID 123. But
Defendants' interrogatory answers assert that the system
used does not have an automatic dialing capacity: any
additional information about the unaccounted-for call would
still fall outside the statutory definition.
cannot show that Defendants used an ATDS as required to
prevail on a TCPA claim, therefore Defendants are entitled to
judgment as a matter of law.
it is hereby ORDERED that Defendants'
Motion for ...