Author Topic: Allege ATDS Use When Not Positively Known  (Read 73 times)

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hamsalad

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Allege ATDS Use When Not Positively Known
« on: July 29, 2015 04:37:32 PM »
This issue may have been covered before, but I searched and cannot find it.

Specifically, say a consumer has received several calls on her cell phone, Googles the number on the caller ID and discovers that it's a CA that's calling.

Since the consumer never answered the calls, she didn't hear the usual telltale signs of an ATDS calling (the delay when answering...the often described clicking noises).

However, she found circumstantial evidence that the CA used an ATDS in other situations, such as a very recent court case in which the plaintiff won summary judgment as to liability because of the plaintiff's discovery requests proved they used a ATDS.

-Would it be proper to simply plead the TCPA statutory requirements alleging use of an ATDS or

-Plead that the court take judicial notice of the other case that affirmatively showed the CA used an ATDS and that's it's reasonable to assume that the CA also used an ATDS to call her cell phone as well?

Brunothe JDBKiller

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Re: Allege ATDS Use When Not Positively Known
« Reply #1 on: July 29, 2015 06:30:29 PM »
DONNA MUDGETT, individually and on behalf of all others similarly situated, Plaintiff,
v. NAVY FEDERAL CREDIT UNION, Defendant.


Case No. 11-C-0039.
United States District Court, E.D. Wisconsin.

March 13, 2012.

"However, the Phone Skills Manual does not allow a reasonable fact-finder to conclude that the collections agents' phones are connected to Navy Federal's computer system. Rather, as far as the Manual indicates, the collections agents' phones are ordinary desk phones that operate independently of Navy Federal's computer system. Although the Manual seems to assume that collections agents will have computers at their desks in addition to phones, it does not suggest that the phones and the computers are interconnected. Thus, on this record, no fact-finder could reasonably conclude that Martin and Owens made calls from telephones that were connected to autodialers.

Accordingly, IT IS ORDERED that Navy Federal's motion for summary judgment is GRANTED. The Clerk of Court shall enter final judgment."

TAMMY DOBBIN, COLLEEN DOBBIN, and DOLORES HART, Plaintiffs,
v. WELLS FARGO AUTO FINANCE, INC., SILICON VALLEY RECOVERY, INC., F-3 SOLUTIONS, LLC, and RELIABLE RECOVERY SERVICES, Defendants.

Case No. 10 C 268.
United States District Court, N.D. Illinois, Eastern Division.

"To summarize, there is no evidence that the calls to plaintiffs' cell phones were autodialed. Rather, the evidence is that the calls were dialed manually. Plaintiffs concede that the desk phones can be used independently of the predictive dialing technology and thus are not necessarily connected to the Conversations System when an agent manually dials a call. Plaintiffs have offered no evidence from which a reasonable jury could find that such a connection existed when the calls at issue here were made. Given these circumstances, no jury reasonably could find based on the evidence presented to the Court that Wells Fargo employees called plaintiffs' cell phones "using" equipment which has the capacity to autodial."


Boyd v. GENERAL REVENUE CORPORATION, Dist. Court, MD Tennessee 2013


"The evidentiary documents submitted reflect that Defendant made various automated calls to Plaintiff's home telephone number, not to Plaintiff's cellular telephone. Given that all calls to Plaintiff's cellular telephone number were dialed manually, the Court concludes that calls to Defendant's cellular telephone were lawful under the TCPA."


As for using discovery from somebody else's case, you'd have to read your rules. In my state, you can't do this. You would have to figure a way to work in the case law. You could cite the case and quote the judge's decision, but discovery is not usually even part of the court record.



I am not an attorney. Any information I post is strictly my opinion and should be treated as such.