Plaintiff Earns Summary Judgment Based on Defendant’s “Making” of Calls

TCPA Connect

A New York federal court granted summary judgment in favor of the plaintiff for a total of 55 calls, finding no merit in the defendant’s contention that the plaintiff failed to provide evidence that each of the calls was received.

In August 2016, M.A., an 11-year-old New York resident, received a cell phone from his grandmother as a present. His mother acted as the named representative on the account with Verizon.

Beginning on September 14, 2016, M.A. began receiving calls from National Recovery Agency (NRA), attempting to reach a debtor with the initials V.R. The debtor had no known connection to either M.A. or his mother. Between September 14, 2016, and June 9, 2017, NRA placed 55 calls to plaintiff.

On behalf of M.A., his father filed suit against NRA alleging violations of the Telephone Consumer Protection Act (TCPA) for each of the calls.

According to the testimony of NRA’s chief executive officer, the automated dialing system used by the company detected a specific electronic tone from Verizon’s answering service when it placed calls to M.A.’s phone number. After hearing that specific electronic tone, NRA’s telephony system confirmed that a connection had been established with Verizon and left or attempted to leave 55 prerecorded messages on M.A.’s phone.

The plaintiff moved for summary judgment on all 55 calls, producing eight voicemail messages from NRA in support. The defendant did not dispute that eight calls to M.A. resulted in prerecorded voicemail messages or that it attempted to leave prerecorded voice messages on all 55 occasions.

Instead, the defendant told the court the plaintiff failed to demonstrate that the remaining 47 call attempts actually reached M.A.’s phone.

U.S. District Court Judge Nina Gershon was not persuaded, noting that the TCPA is essentially a strict liability statute. To successfully prosecute a violation, a plaintiff must demonstrate that a defendant called or initiated a call to a number assigned to a cellular telephone service using a prerecorded message.

“Consistent with this definition, plaintiff need not show that he answered the call or even knew about the call,” the court wrote. “In effect, defendant seeks to change the focus of the statute from the making of a call to the receipt of a call.”

But “defendant’s own testimony proves that the defendant’s dialed calls ‘successfully went through’ because defendant does not dispute that its dialer actually dialed plaintiff’s phone number on fifty-five occasions and that a tone was heard from the plaintiff’s side, indicating that the telephony system answered the phone,” Judge Gershon said.

The defendant did not produce any evidence or legal argument that contradicted or repudiated “the unequivocal testimony” of NRA’s CEO that the company called or initiated a call to a number assigned to plaintiff’s cellular telephone service using a prerecorded voice message on 55 occasions without express consent, the court said.

“In this circumstance, the inferences raised by defendant amount to no more than the ‘mere existence of a scintilla of evidence’ insufficient to establish a genuine dispute,” the court wrote. “Viewing the record favorably to defendant, no reasonable jury could find that defendant did not make fifty-five telephone calls to plaintiff’s cellular phone using a prerecorded voice message in violation of the TCPA.”

The court granted summary judgment in favor of the plaintiff on all 55 calls, entering judgment in the amount of $27,500.

To read the opinion and order in M.A. v. NRA Group, LLC, click here.

Why it matters: While the defendant argued that the plaintiff lacked evidence that 47 of the 55 alleged calls actually reached M.A.’s phone, the court refused to change its analysis from the making of a call to the receipt of a call to establish a violation of the TCPA.