Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Matthew F. Kennelly than Assigned Judge
For the reasons stated below, the Court denies ERC's motion for summary judgment [docket no. 50]. A status hearing is set for September 6, 2011 at 9:30 a.m. for the purpose of setting a schedule for any further proceedings in this case, and to discuss the possibility of settlement.
O[ For further details see text below.] Docketing to mail notices.
Teresa Soppet and Loidy Tang have sued Enhanced Recovery Company, LLC (ERC) under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(A)(iii). ERC has moved for summary judgment. For this reason, the Court views the facts in the light most favorable to plaintiffs and draws reasonable inferences in their favor.
AT&T retained ERC, a debt collection company, to collect debts owed by Dupree Riley and Sherita Morgan. When Riley opened her account with AT&T in July 2005, he gave AT&T the telephone number 708-xxx-2583 as a contact number. When Morgan opened her AT&T account in October 2006, she gave AT&T the telephone number 708-xxx-8483 as a contact number. AT&T provided these numbers to ERC when it retained ERC to collect the debts.
Since February 2007, Soppet has had cell phone with the number 708-xxx-2583. ERC called that number twenty-four times from January through September 2010 using an automated or predictive dialing system and left prerecorded messages each time. The messages were for Riley. It is clear from the contents of the prerecorded messages that ERC was trying to reach Riley. The messages advised that the recipient should delete the message if she was not Riley. Soppet's voice mail greeting informed callers that they had reached Teresa Soppet. This did not deter ERC from continuing to call the number. Soppet did not contact ERC to ask it to stop calling her number.
Tang has had the cell phone number 708-xxx-8483 since January 2007. She alleges that ERC called that number at least fifteen times from October 2009 through September 2010, using an automatic telephone dialing system. It is clear from the prerecorded messages that ERC left that it was trying to reach Morgan. A number of the messages advised the recipient to delete the messages if she was not Morgan. Until about June 2010, Tang had a voice mail greeting informing callers they had reached Loidy Tang. This did not deter ERC from continuing to call the number. Tang says that in September 2010, she contacted ERC and requested that it stop calling her number for Morgan. ERC did not call Tang after that request.
The TCPA provides, in relevant part, that
[i]t shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.
47 U.S.C. § 227(b)(1). The statute defines an "automatic telephone dialing system" as "equipment which has the capacity to store or produce telephone number to be called, using a random or sequential number ...