United States District Court, D. Nevada
KENT J. DAWSON, District Judge.
Before the Court is a Motion for Summary Judgment (#103) filed by Defendants Dollar Loan Center, LLC ("DLC"); DLC Empire, LLC ("DLC Empire"); and Clark County Collection Service, LLC ("CCCS"), collectively "Defendants." The sole remaining Plaintiff against these Defendants, Ronald Grider ("Grider") opposed the motion (#108), and Defendants replied (#114). There are three primary questions before the Court. First, did CCCS either negligently or knowingly violate the Telephone Consumer Protection Act ("TCPA") by using an automatic telephone dialing system (ATDS) to contact Mr. Grider? Second, did Defendants violate the Nevada Deceptive Trade Practices Act ("NDTPA")? Third, are DLC and DLC Empire vicariously liable for any of the above violations?
I. Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). Summary judgment may be granted if the pleadings, depositions, affidavits, and other materials in the record show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).
A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Uncorroborated and self-serving testimony, without more, will not create a genuine issue of material fact. See Villiarimo v. Aloha Island Air Inc. , 281 F.3d 1054, 1061 (9th Cir. 2002). Conclusory or speculative testimony is also insufficient to raise a genuine issue of fact. Anheuser Busch, Inc. v. Natural Beverage Distribs. , 69 F.3d 337, 345 (9th Cir. 1995).
The moving party bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex , 477 U.S. at 323. Once that burden is met, it then shifts to the nonmoving party to set forth specific facts demonstrating that a genuine issue exists. See Matsushita , 475 U.S. at 587; FED. R. CIV. P. 56(e). If the nonmoving party fails to make a sufficient showing of an essential element for which it bears the burden of proof, the moving party is entitled to summary judgment. See Celotex , 477 U.S. at 322-23.
II. The Telephone Consumer Protection Act, 47 U.S.C. § 227
A. Legal Standards
Under the TCPA, it is "unlawful for any person within the United States... to make any call... using any automatic telephone dialing system... to any telephone number assigned to a... cellular telephone service." 47 U.S.C. § 227(b)(1). An automatic telephone dialing system (ATDS) is defined as "equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." Id. at § 227(a)(1).
In analyzing this statute, the Ninth Circuit has found the text "clear and unambiguous." Satterfield v. Simon & Schuster, Inc. , 569 F.3d 946, 951 (9th Cir. 2009). "[T]he statute's clear language mandates that the focus must be on whether the equipment has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.'" Id. at 951 (quoting 47 U.S.C. § 227(a)(1)(A)). Accordingly, where a district court had focused on whether the equipment in question actually accomplished the prohibited functions, it was in error. Id. at 950-51.
To begin, the Court notes that because the question revolves around capacity and not actual performance, Defendants' argument that the telephone call at issue here was manually dialed is irrelevant. Defendants argue that the statute penalizes using an ATDS, but that the statute does not apply because CCCS used the equipment to manually dial Grider. This argument ignores or at least dramatically misconstrues Satterfield. Either way, Defendants are encroaching on the bounds set under Federal Rule of Civil Procedure 11(b)(2). The Court expects any future arguments to be firmly grounded in the law and non-frivolous.
As to whether the equipment at issue here is an ATDS, Defendants' reply is illuminating. "[I]f CCS ever did place call reference numbers in the daily "pool" of calls it makes, CCCS would likely be placing calls to credit references "using" an ATDS in violation of the TCPA." (#114 at 6:23-25). As noted above, it is wholly irrelevant under Satterfield if, as Defendants emphasized, "CCCS does not do that." (#114 at 6:25-26). The inquiry here is whether the equipment has the capacity to act as an ATDS, and Defendants admit that in its present configuration, it "likely" does. All Defendants must do to actually autodial is dump the relevant telephone numbers into the "pool." To be clear, the Declaration of Kevin Kozar (marked as Exhibit G despite sharing that appellation with another exhibit, "Opposition to Motion for Sanctions") states at paragraph 15 "Credit reference telephone numbers are never placed in the daily pool' of calls delivered to the company's autodialer, which functions separately from these live calls." However, the question is capacity, not actual function. The above description suggests that the ...