In Frisch v. AllianceOne Receivables Management, LLC, 2017 WL 25471 (E.D. Wis. 2017), Judge Pepper granted summary judgment to a debt collection agency who manually dialed calls, even though the caller “had” an ATDS.
The court agrees that there are evidentiary problems with the evidence the plaintiff has presented. Even if the documents were admissible, however, the plaintiff still would fall short of showing a genuine dispute as to whether the defendant actually called him using an ATDS. The Tutewohl declaration, which is uncontroverted, established that the defendant followed a manual process each time it called the plaintiff’s cell phone number. Dkt. No. 28, ¶16. The plaintiff’s evidence, even if admissible, shows only that the defendant has the capability to use an automated predictive dialing system—a fact the defendant does not dispute. The fact that the defendant has the ability to use an automated predictive dialing system–even one that may use the same outbound telephone number as the defendant used to contact the plaintiff-does not create a genuine issue as to whether the defendant used that system to call the plaintiff. Id., ¶21. The Tutewohl declaration confirms that the numbers available for use by the defendant’s predictive dialing system “are equally available to use in manually dialing calls as was obviously done in this case,” and Tutewohl asserts, under penalty of perjury, that none of the calls were placed to the plaintiff automatically. Id., ¶¶16, 21. The plaintiff cites to Norman v. AllianceOne Receivables Mgmt., 637 F.App.’x 214 (7th Cir. 2015) in support of his arguments. In Norman, the Seventh Circuit affirmed the district court’s grant of summary judgment in favor of the defendant. In that case, as here, the defendant filed “a declaration from the company’s Vice President of Business Analytics and a log of the calls to Norman’s phone to show that he was not autodialed.” The plaintiff in Norman submitted evidence which, even if it had been admissible, would have established only “that the company’s capabilities include autodialers, but not that it used that capability always or even often, let alone in cases like Norman’s.” Id. The court held that, “[w]ith the call log showing that AllianceOne manually called Norman, and no contrary evidence about those calls in the record, the district court correctly granted summary judgment. No reasonable jury could conclude from this evidence that an autodialer called Norman.” . . . Rather than supporting the plaintiff’s arguments, Norman supports the defendant’s position. The defendant here supported its motion for summary judgment with record evidence demonstrating that it manually dialed each of the calls placed to the plaintiff’s cell phone number. The plaintiff has not presented any evidence that the defendant actually used its predictive dialer to call the plaintiff via an ATDS, and in response to the defendant’s motion, he failed to create a genuine dispute on the issue. The defendant’s evidence that it placed each call to the plaintiff manually is uncontroverted. The court finds that the defendant has supported its motion for summary judgment with admissible evidence demonstrating that the calls placed by the defendant’s employees to the plaintiff’s cell phone were dialed manually. Accordingly, the court will deny the plaintiff’s motion for summary judgment, and will enter summary judgment in favor of the defendant because there is no evidence in the record on which a reasonable jury could conclude that the defendant violated the TCPA by using an automated dialer to call him.