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Davis v. Diversified Consultants, Inc.

United States District Court, D. Massachusetts

June 27, 2014

JAMIE DAVIS, Plaintiff,

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[Copyrighted Material Omitted]

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For Jamie Davis, Plaintiff: Sergei Lemberg, LEAD ATTORNEY, Lemberg & Associates, Stamford, CT; Ashley D. Forest, Law Office of Ashley D. Forest, Boston, MA.

For Diversified Consultants, Inc., Defendant: John J. O'Connor, LEAD ATTORNEY, Peabody & Arnold LLP, Boston, MA.

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F. Dennis Saylor IV, United States District Judge.

This is an action claiming unlawful debt collection. It arises out of a series of telephone calls between plaintiff Jamie Davis and various employees of defendant Diversified Consultants, Inc., a debt collection agency. Davis contends that, by the mode and manner in which they called him, DCI and its employees violated the Telephone Consumer Protection Act (" TCPA" ), 47 U.S.C. § 227 et seq. ; the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692 et seq. ; and the Massachusetts Privacy Act, Mass. Gen. Laws ch. 214, § 1B.

Davis has moved for partial summary judgment as to the TCPA claim, and DCI has cross-moved for summary judgment on all counts. Davis also has moved to strike an affidavit submitted by DCI in support of its motion. For the reasons set forth below, defendant's motion to strike will be denied, defendant's motion for summary judgment will be denied, and plaintiff's motion for summary judgment will be granted in part and denied in part.

I. Background

Unless otherwise noted, the following facts are undisputed.

A. The Telephone Calls

On July 9, 2012, DCI acquired an account (that is, an alleged debt) belonging to Rosalee Pagan. It first attempted to collect on Pagan's debt on July 11, 2012. On July 15, 2012, DCI paid a " skip trace" service provider, a company called Innovis, for location information and telephone numbers related to Pagan.[1] Among the data Innovis provided was the telephone number (857) XXX-8596. That number, however, was assigned to Jamie Davis's MetroPCS cellular telephone.[2]

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From August 1 to November 15, 2012, Davis received a total of 60 telephone calls at the *8596 number from DCI collectors. Davis answered five to seven of those calls, and DCI may have left one voice-mail message. When DCI collectors asked about Pagan, Davis stated that he was not Pagan, did not know her, and had never heard of her, and asked the collectors to stop contacting him. At no point in time did he consent to being called. (Pye Dep. at 27-28). Davis alleges that one of the collectors was rude to him and implied that Davis was lying about not knowing Pagan. (Davis Dep. at 20-24, 28-31).

B. The LiveVox System

During the relevant time period, DCI utilized a telephone system operated by LiveVox in order to place many, if not all, of its telephone calls. Both Mavis-Ann Pye, who was the DCI Vice President of Compliance, and the DCI website refer to the LiveVox system as a " predictive dialer." (Pye Dep. at 20-21; Lemberg Decl., Ex. F, DCI Website).[3]

Every morning, DCI Director Jamie Sullivan uploaded a file containing telephone numbers into the LiveVox cloud-based server.[4] The LiveVox system then called those numbers throughout the day. If someone answered the call, the system routed that call to a DCI debt collector. The parties dispute whether DCI or LiveVox actually placed the telephone calls.

DCI had the option to store telephone numbers in the LiveVox system for up to 30 days. (Pye Dep. at 80). However, the numbers instead were erased at 1:00 a.m. every night, and DCI uploaded new numbers every morning. (Leszczynski Aff. ¶ 7). Pye stated that DCI had the option for LiveVox to dial numbers sequentially; DCI did not, however, use that function. (Pye Dep. at 89).[5] According to a memorandum written by LiveVox concerning the Telephone Consumer Protection Act, " the LiveVox Application Service, while able to store or produce telephone numbers to be called, does not have the capacity to store or produce numbers to be called using a random or sequential number generator. " (Pl. Mem., Ex. C) (emphasis in original). LiveVox therefore concluded that its system does not constitute an " automatic telephone dialing system" under the TCPA, but noted in the memorandum that one court has disagreed with that conclusion. ( Id. ).

Davis contends that DCI used the LiveVox system to call him from August to November 2012. Pye confirmed at her deposition that the LiveVox system called the *8596 number ( see Pye Dep. at 28-35). She nonetheless now states in an affidavit opposing summary judgment that no calls were made using " an automatic telephone dialing system." (Pye Aff. ¶ 2).[6] Pye also states that DCI's standard practice is to " scrub" new accounts for cellular telephone

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numbers in order avoid calling such numbers. ( Id. ...

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