In Chyba v. Bayview Loan Servicing, LLC, 2016 WL 5405557, at *3–4 (S.D.Cal., 2016), Judge Benitez held that mere ownership of an ATDS and mere allegations of “pauses” was insufficient to create a question of fact on MSJ, when Caller established that calls were manually dialed.
Plaintiff submits an affidavit, a handwritten call log,2 and photographs of a cell phone showing Bayview’s number on the screen. In her affidavit, Plaintiff declares that she heard “silence and an ‘artificial time delay’ on the onset of each call before Darrin Wilson started to speak.” (Opp’n, Chyba Decl. ¶ 4, 12.) She also requests that the Court take judicial notice of certain public records that she argues establishes that Bayview uses autodialers. (Opp’n at 6-9; Request for Judicial Notice, ECF Nos. 101, 102.) C. Analysis The Court agrees with Bayview that there is no genuine dispute as to any material fact. Plaintiff does not offer “any significant probative evidence tending” to show that Bayview used an automatic telephone dialing system or an artificial or prerecorded voice to contact her. Anderson, 477 U.S. at 249 (internal citation omitted). As an initial matter, she admits that she spoke to a live person. (Chyba Decl. ¶¶ 4-5.) Bayview also submits evidence that its callers were live persons who left personal messages for Plaintiff when their calls were unsuccessful. (Molina Decl. ¶¶ 4-5 & Ex. A.) Therefore, Plaintiff has not established that Bayview used an “artificial or prerecorded voice” in its calls to her. Plaintiff also has not offered sufficient evidence to demonstrate that Bayview used an “automatic telephone dialing system” when it called her cellphone. Her contention that there was an “artificial time delay” at the beginning of each call does not raise a dispute regarding whether Bayview used equipment having the capacity to store, produce, and autodial numbers. Her handwritten call log and photographs also do not raise a genuine dispute because, at most, they show that Bayview contacted her, something that does not violate the statute without more and something that Bayview does not contest. Plaintiff relies on public records in which Bayview corporate officers allegedly attest to the use of autodialers. However, even if this Court took judicial notice of these records, which it does not, these documents do not show that Bayview used an autodialer when it contacted her from the 1300 number. Although this Court declines to take judicial notice of these documents, it will be discuss them for the purpose of demonstrating that Plaintiff’s proffered evidence is insufficient for this claim to proceed to a jury. She first submits a Bayview job posting for a customer relations business analyst. (Opp’n, Ex. 1.) The analyst must have “[w]orking knowledge of Avaya Call Management System, Witness Call Center Recording System, [and] Presence Contact Solution Technology.” (Id.) This document does not demonstrate that the named telephone equipment is an automatic telephone dialing system, and it is not evidence that the people who called Plaintiff used an autodialer. Similarly, she offers a 2009 Form S-11 for registration of securities that she found on the U.S. Securities and Exchange Commission’s website. The document states that Bayview’s “Customer Service call center operates on an advanced Avaya phone system, call center and auto-dialer.” (Opp’n, Ex. 6, ECF No. 101 at 19.) However, this statement refers to the incoming calls that Bayview receives from customers, not outgoing calls to delinquent borrowers. She also submits two Standard and Poor’s (“S&P”) “servicer evaluation[s]” of Bayview. (Opp’n, Exs. 2-3.) In relevant part, the evaluations state that Bayview “operates in a well-automated environment” and uses “automated call distribution (ACD), and interactive voice response (IVR) systems.” (Opp’n, Ex. 2, ECF No. 101 at 7; Ex. 3, ECF No. 101 at 17.) But the IVR system merely “enables callers to route their call to a particular department,” and the ACD system “distributes incoming calls to customer relations agents.” (Opp’n, Ex. 2, ECF No. 101 at 8 (emphasis added).) The strongest evidence that Bayview uses autodialers comes from two statements in the S&P evaluations, which note that loan counselors “may begin early intervention calling campaigns through an auto-dialer” and that a “predictive dialer allows customized calling campaigns.” (Opp’n, Ex. 2, ECF No. 101 at 9 (emphasis added); Ex. 3, ECF No. 101 at 19.) Again, these statements fail to raise a genuine dispute about whether Bayview called her using equipment with the capacity to autodial. At most, they demonstrate that Bayview may use autodialers sometimes, but that autodialers are not used every time a loan counselor contacts a delinquent borrower. There is no indication when predictive dialers are used and whether the equipment is “paired with” the required software that allows it to autodial. 18 FCC Rcd. at 14091; see also In re Rules and Regulations Implementing Tel. Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7972 n.39 (July 1, 2015) (“The Commission’s finding that predictive dialers fall within the statutory autodialer definition thus focuses on whether equipment has the requisite ‘capacity,’ and therefore is not limited to any specific piece of equipment and is without regard to the name given the equipment for marketing purposes.”). There is certainly no evidence that Bayview called Plaintiff with an autodialing predictive dialer or other automatic telephone dialing system. Bayview has met its burden of showing that Plaintiff has failed to make a showing sufficient to establish an essential element to her last remaining claim. Celotex Corp., 477 U.S. at 323. Viewing the facts in the light most favorable to Plaintiff, she has not carried her burden to demonstrate that there is a genuine issue for trial. Her proffered evidence does not tend to show that Bayview contacted her cellular telephone using an “automatic telephone dialing system or an artificial or prerecorded voice.” Therefore, the Court grants summary judgment to Bayview on Plaintiff’s TCPA claim. See Anderson v. Security Fin. of Idaho, LLC, No. 4:12-cv-00487-BLW, 2015 WL 1478440, at *3 (D. Idaho Mar. 31, 2015) (granting defendant’s motion for summary judgment because plaintiff could not establish that defendant used an automatic telephone dialing system to contact him on his cell phone).