District Court (Fla.) Says Fact that ATDS Was Used for Some Calls Does Not Mean It Was Used for All; Court Grants MSJ on TCPA Claim

In his declaration, Gutierrez asserts that the forty-four remaining (44) calls that Bayview placed to Ferrer’s cell phone during the timeframe alleged in the amended complaint were placed through the Avaya X1 Platform, which operates separately from Bayview’s servicing platform, and does not store telephone numbers. (ECF No. 112 at ¶¶ 20-22, 24.) Furthermore, Gutierrez asserts that the primary function of the Avaya Platform is to permit a user to dial phone calls using a computer keyboard and mouse, and that the calls must be manually dialed. (Id. at ¶¶ 23, 25.) In fact, the Avaya Platform cannot place calls without human input, and it is not able to dial predictively, store, or produce telephone numbers independently. (Id. at ¶¶ 27, 29.) The statements in Gutierrez’s declaration are consistent with his deposition transcript excerpts provided by both parties.  In response, Ferrer asserts that Gutierrez also admitted that Bayview utilized a system called Presence, which is an auto-dialer, to execute certain outbound campaigns. Gutierrez also admitted during his deposition that some calls placed to Ferrer was dialed by an auto-dialer. (See ECF No. 144 at 11, 18-19.) However, the calls were placed to numbers other than Ferrer’s cell phone (the 94 number and 305-454-9360), which are not alleged to be numbers subject to the TCPA in this case. The mere fact that Bayview utilizes an auto-dialer in some instances does not subject Bayview to TCPA liability in this case, absent evidence that the auto-dialer was used to contact Ferrer on her cell phone in a manner prohibited by the TCPA. There is no such evidence in the record. Accordingly, Bayview is entitled to summary judgment.