United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
CORBETT O'MEARA, UNITED STATES DISTRICT JUDGE.
the court is Plaintiff's motion for summary judgment,
filed June 6, 2017. The court heard oral argument on
September 14, 2017. Subsequently, the parties submitted
supplemental briefs. For the reasons stated below,
Plaintiff's motion is denied.
Thomas Bally alleges that Defendant First National Bank of
Omaha violated the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227 et seq.,
when it repeatedly called his cellular telephone without his
December 6, 2016, Defendant called Plaintiff in an attempt to
collect a debt. During that call, Plaintiff told Defendant to
stop calling him, then immediately hung up the phone.
See Pl.'s Ex. 4 (audio recording); Pl.'s Ex
1. Defendant's representative, Marveen Fredrickson,
apparently not realizing that Plaintiff had hung up, asked
when Plaintiff would be able to make his past due payment.
Pl.'s Ex. 4; Def.'s Ex. A (Declaration of M.
Fredrickson). Fredrickson contends that she did not hear and
understand Plaintiff's request to not to call him, or she
would have brought the matter to the attention of her
supervisor, as she had been trained to do. Def.'s Ex. A
at ¶¶4-5, 9-10. According to Fredrickson, the
supervisor would have removed Plaintiff's cell phone
number from the account. Id.
continued to make collection calls to Plaintiff's cell
phone after December 6, 2016. According to Defendant's
records, ninety-six calls were made to Plaintiff's cell
phone between December 7, 2016, and January 20, 2017.
Pl.'s Ex. 6. These calls were made using an automatic
telephone dialing system, the “Avaya Predictive Dialer
5.1.” Pl.'s Ex. 7. Plaintiff did not answer these
January 20, 2017, Plaintiff answered a call from Defendant.
Defendant's representative, Fauna Papstein, asked whether
Plaintiff could make a payment toward his account. Plaintiff
indicated that he could not and asked Papstein to stop
calling, then hung up. See Pl.'s Ex. 13 (audio
recording). Unsure of what Plaintiff said, Papstein then
asked if Plaintiff was requesting a “cease and desist,
” but he had already terminated the call. See
id.; Def.'s Ex. B (Declaration of F. Papstein).
Papstein had her supervisor remove Plaintiff's cell phone
number from the account. No further phone calls were made to
Plaintiff's cell phone from Defendant after January 20,
seeks summary judgment in his favor. Summary judgment is
appropriate if “there is no genuine issue as to any
material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Fed.R.Civ.P. 56(c).
TCPA makes it unlawful
(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 an
artificial or prerecorded voice -
* * *
(iii) to any telephone number assigned to a paging service,
cellular telephone service, specialized mobile radio service,
or other radio common carrier service, or any service for
which the called party is charged for the call.
U.S.C. § 227(b)(1)(A)(iii). To establish a prima fascie
case under § 227(b)(1)(A)(iii), a plaintiff must show
that: “(1) a call was placed to a cell or wireless
phone; (2) by the use of any automatic dialing system and/or
leaving an artificial or prerecorded message, and (3) without
prior consent of the recipient.” Harris v. World
Fin. Network Nat. Bank, 867 F.Supp.2d 888, 892 (E.D.
Mich. 2012) (citation omitted). The statute provides for a
private right of action to recover actual damages or
statutory damages in the amount of $500 per violation,