District Court (Cal.) Says No ATDS Was Used Post-Duguid

In Pascal v. Concentra, Inc., No. 19-cv-02559-JCS, 2021 U.S. Dist. LEXIS 239583, at *23-30 (N.D. Cal. Dec. 14, 2021), Judge Spero granted summary judgment to a TCPA defendant on the basis that no ATDS was used.

Based on the undisputed facts relating to Textedly’s functionality, Plaintiff does not dispute that the text messages at issue in this case were not “produced” “using a random or sequential number generator.” Instead, he contends the numbers were “stored” “using a random or sequential number generator” by virtue of the fact that Textedly’s MySQL database uses “a sequential number generator to store telephone numbers and create[es] a unique identifier for each entry.” The Court rejects Plaintiff’s theory, which it finds to be inconsistent with the reasoning and holding of Duguid. As discussed above, the court in Tehrani set forth a number of reasons for rejecting a similar argument where the plaintiff argued that a feature that assigned sequential index numbers to telephone numbers that were input into the system for the purposes of storing the numbers in a database met the TCPA’s definition of an autodialer. In particular, it found that under Section 227(a)(1), the requirement that a “number” must be stored or produced by an autodialer implicitly refers to a telephone number, citing the reference in subsection (B) to the capacity to dial “such numbers.” 2021 U.S. Dist. LEXIS 165392, 2021 WL 3886043, at *4. It pointed to other circuit authority cited with approval in Duguid reaching the same conclusion as further support for its conclusion. Id. (citing Glasser v. Hilton Grand Vacations Co., 948 F. 3d 1301, 1307-09 (11th Cir. 2020); Gadelhak v. AT&T Servs., 950 F.3d 458, 460 (7th Cir. 2020)). The undersigned agrees with the reasoning of Tehrani on this point and therefore concludes that the generation and assignment of random or sequential id. numbers to telephone numbers that were uploaded or manually input into Textedly, including Plaintiff’s telephone number, is not sufficient to establish that an autodialer was used in sending the Text to Plaintiff.  More broadly, the Court agrees with both the Hufnus and Tehrani courts that under Duguid, a platform that merely targets telephone numbers that were obtained in a non-random way is not an autodialer for the purposes of the TCPA. See Hufnus, 2021 U.S. Dist. LEXIS 118325, 2021 WL 2585488, at *1 (holding that use of an autodialer was not alleged where “the platform only contact[ed] phone numbers specifically provided by consumers during DoNotPay’s registration process, and not phone numbers identified in a random or sequential fashion.”); Tehrani, 2021 U.S. Dist. LEXIS 165392, 2021 WL 3886043, at *4 (finding that Duguid Court implicitly rejected Second Circuit’s holding in Duran v. La Boom Disco, Inc., 955 F.3d 279 (2d Cir. 2020) concluding that autodialer definition can be met by a system that dials numbers from “prepared lists — that is, from lists that had been generated and uploaded to the programs by humans.”). This conclusion is supported by Duguid’s discussion of the purposes of the TCPA, as reflected in the language of the statute, which describes the specific harms associated with the use of autodialers; as the Court stated in Duguid, the “prohibitions [in Section 227(b)] target a unique type of telemarketing equipment that risks dialing emergency lines randomly or tying up all the sequentially numbered lines at a single entity.” 141 S. Ct. at 1171. Those harms are not implicated by the system that was used here, where the messages were sent to telephone numbers that were selected based on the geographical location and qualifications of the recipients.  Likewise, the undersigned agrees with the Hufnus and Tehrani courts that Footnote 7 does not support a contrary reading of Duguid and the TCPA. Read out of context, the statement in Footnote 7 referencing an autodialer that “use[s] a random number generator to determine the order in which to pick phone numbers from a preproduced list” might suggest that even where a platform sends messages to a list of telephone numbers that was created in a non-random fashion, as is the case here, an autodialer is used if the order in which they are contacted relies on a random or sequential number generator. As many courts have observed, however, the reference to a “preproduced list” in Footnote 7 was based on a specific technology described in the PACE Amicus Brief and that brief makes clear that the preproduced list was itself randomly generated. See Hufnus, 2021 U.S. Dist. LEXIS 118325, 2021 WL 2585488, at *1; Tehrani, 2021 U.S. Dist. LEXIS 165392, 2021 WL 3886043, at *5; 2020 WL 5549320 (U.S.) (PACE Amicus [*27] Brief) at 19-21. Moreover, even if the use of a random or sequential number generator to determine the order the messages would be sent could qualify a platform as an autodialer where the telephone numbers on the list were collected non-randomly, the definition would not apply to the facts here because it is undisputed that the numbers were stored and called in the same order they were uploaded or input into Textedly.  The Court further finds that Plaintiff’s reliance on a handful of cases in which courts have denied motions to dismiss based on failure to allege use of an ATDS is misplaced. See Plaintiff’s Motion for Summary Judgment at 12 (citing Miles v. Medicredit, Inc., No. 4:20-cv-01186 JAR, 2021 U.S. Dist. LEXIS 131128, 2021 WL 2949565, at*4 (E.D. Mich. July 14, 2021); Gross v. GG Homes, Inc., No. 3:21-cv-00271-DMS-BGS, 2021 U.S. Dist. LEXIS 127596, 2021 WL 2863623, at *1 (S.D. Cal. July 8, 2021); Callier v. GreenSky, Inc., EP-20-CV-00304-KC, 2021 U.S. Dist. LEXIS 126769, 2021 WL 2688622, at *5 (W.D. Tex. May 10, 2021)). In these cases, the courts simply found that this issue was more appropriately addressed at the summary judgment stage of the case.  In Miles v. Medicredit, for example, the court found that the “newly clarified definition of an ATDS is more relevant to a summary judgment motion than at the pleading stage.” 2021 U.S. Dist. LEXIS 131128, 2021 WL 2949565, at *4 (quoting Gross v. GG Homes, Inc., No. 3:32-cv-00271-DMS-BGS, 2021 U.S. Dist. LEXIS 127596, 2021 WL 2863623, at *7 (S.D. Cal. July 8, 2021) (citing Montanez v. Future Vision Brain Bank, LLC, 20-CV-02959-CMA-MEH, 2021 U.S. Dist. LEXIS 82055, 2021 WL 1697928, at *7 (D. Colo. Apr. 29, 2021)). The court denied the defendant’s motion to dismiss under Rule 12(b)(6), finding that the plaintiff had “pled enough facts to proceed with discovery, at which time he will have the opportunity to discover the precise technology that was used at the time of the alleged TCPA violation.” Id. It noted, however, that if the technology did not meet the statutory definition of an ATDS under Duguid, the defendant could move for summary judgment on that basis. Id.  Similarly, the court in Gross v. GG Homes, Inc., declined to decide whether the defendant had used an ATDS, finding the question was more suitable for a decision on summary judgment. No. 321CV00271DMSBGS, 2021 U.S. Dist. LEXIS 127596, 2021 WL 2863623, at *7 (S.D. Cal. July 8, 2021), on reconsideration, sub nom. KIMBERLY GROSS, Plaintiff, v. GG HOMES, INC., Defendant., No. 321CV00271DMSBGS, 2021 WL 4804464 (S.D. Cal. Oct. 14, 2021). The court observed, “Plaintiff need not describe the technical details of Defendant’s alleged ATDS at this stage. This issue is appropriately addressed following discovery and on a motion for summary judgment.” Id.; see also Callier v. GreenSky, Inc., EP-20-CV-00304-KC, 2021 U.S. Dist. LEXIS 126769, 2021 WL 2688622, at *11-12 (W.D. Tex. May 10, 2021) (holding that a pro se plaintiff’s TCPA claim was sufficient at the pleading stage where he alleged that he received multiple calls, that there were several seconds of silence at the beginning of each call, that the same script was used for each call, and that an ATDS was used to place the calls).  Carl v. First Nat’l Bank of Omaha, No. 2:19-cv-00504-GZS, 2021 U.S. Dist. LEXIS 111889, 2021 WL 2444162 (D. Me. June 15, 2021) and Heard v. Nationstar Mortgage LLC, No. 2:16-cv-00694-MHH, 2018 U.S. Dist. LEXIS 143175, 2018 WL 4028116 (N.D. Ala. Aug. 22, 2018), cited by Plaintiff in his summary judgment motion, also do not support Plaintiff’s position. In Carl, the court declined to enter summary judgment on the ATDS question, concluding that there were factual disputes as to whether some of the calls received by the plaintiff were placed by an ATDS even though there was evidence that the platform at issue called numbers on a list that was provided by the defendant and was not randomly generated. 2021 U.S. Dist. LEXIS 111889, 2021 WL 2444162, at *3, 9. In a footnote, the court noted that “Duguid suggested that an ATDS could potentially fall under [the] TCPA if it “use[s] a random number generator to determine the order in which to pick phone numbers from a preproduced list [and] then store[s] those numbers to be dialed at a later time.” Id. (citing Duguid, 141 S. Ct. at 1172 n.7). The court did not actually decide that question, however. In any event, the undersigned rejects this interpretation of Footnote 7 for the reasons discussed above.  In Heard, the court found that debt collection calls placed by the defendant fell within the definition of an ATDS where the defendant input call data from its loan files and the system software then sequenced and dialed the calls “according to a borrower’s predicted availability to receive calls.” 2018 U.S. Dist. LEXIS 143175, at *16 (N.D. Ala. Aug. 22, 2018). The court granted summary judgment in the plaintiff’s favor, reasoning that “the fact that Nationstar employees ‘scrub’ and input loan data for the system’s use does [*30] not obviate the role that Nationstar’s iAssist software plays in selecting the numbers to call and initiating each call.” 2018 U.S. Dist. LEXIS 143175 at *17. But Heard was decided before Duguid and it is likely that it is no longer good law. In any event, it is distinguishable from the facts here because it is undisputed that Textedly does not select the numbers to be messaged, change the sequence of the numbers that are entered into Textedly or determine the timing of the messages sent through its system.  Accordingly, the Court concludes, as a matter of law, that Concentra did not send the Text using an ATDS within the meaning of Duguid and the TCPA.