Eastern District of Illinois Finds Genuine Issue of Material Fact As To Whether Defendant Used Auto Dialer To Call Plaintiff's Cell Phone

Ploch v. FirstSource Advantage, LLC, No. 4:12-cv-310-JAR, 2012 WL 538476 (E.D. Mo. Nov. 1, 2012) Defendant moved for summary judgment on Plaintiff's claim for violation of the TCPA, contending that Plaintiff could not adduce any evidence that it used an Automatic Telephone Dialing System (ATDS) to call Plaintiff's cell phone, and did not leave any prerecorded message on Plaintiff's cell phone. Defendant submitted a declaration from its Dialer Operations Manager stating that Defendant did not place any calls to Plaintiff's cell phone using an ATDS, and all calls were made through Defendant's PBX phone system, which did not have the capability of storing or producing numbers to be called, using a random or sequential number generator, or to dial such numbers. The Manager further testified that Defendant did not leave prerecorded voice messages on Plaintiff's cell phone. Plaintiff responded that the collection notes attached the Manager's declaration did not indicate that calls were not made using an ATDS. The notes appeared exactly like the calls placed to Plaintiff's other contact numbers and Defendant apparently had no idea the number called was a cell phone number because it coded the number as "POE", a common abbreviation for Place of Employment. Thus, there would have been no reason for Defendant not to autodial that number. Defendant's notes further indicated "Dialer Y," a notation that Plaintiff argued could indicate to a reasonable fact finder that Defendant had set up its autodialer to call Plaintiff at all contact numbers, including Plaintiff's cell phone. The court held that these issues created a genuine issue of material fact, denying Defendant's Motion for Summary Judgment on the TCPA claim.

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