Earlier this month the U.S. District Court for the Middle District of Florida granted Defendant’s motion for Partial Summary Judgment in Thomas Estrella v. LTD Financial Services, LP (LTD). The decision is available here.
The Plaintiff claimed that LTD placed calls to his cellular telephone using an automatic telephone dialing system (ATDS) or artificial or prerecorded voice without his prior consent, in violation of the TCPA.
LTD argued for summary judgment on this TCPA claim because the calls were not made through an ATDS and did not use an artificial or prerecorded voice. A senior vice president of the company representative testified that the calls were placed by employees of LTD by manually using a “point and click function,” and also that no use of an artificial or prerecorded voice was made.
Estrella submitted an unsworn declaration that he “could tell” the company was using an ATDS because there was “a prolonged silence” when he answered, in addition to “delays and clicks,” and prerecorded messages.
There was some discussion around whether an unsworn declaration is valid for consideration at the summary judgment stage, but nonetheless, the Court determined that nothing in the Plaintiff’s statement established either that LTD used an ATDS to dial his cellular phone, or that the calls were made using a predictive dialer. Referencing Avirgan v. Hull, 932 F.2d at 1577, the Court noted that Plaintiff’s evidence “cannot consist of conclusory allegations or legal conclusions” (such as the assertion that “clicks and delays” and “prolonged silences” means that an ATDS or predictive dialer was used).
The Court therefore concluded that the Plaintiff failed to create a material dispute over whether LTD placed calls to his phone using an ATDS or artificial or prerecorded voice, and granted summary judgment on the Plaintiff’s federal TCPA claim, in favor of the Defendant.
The remaining claims arise under the Florida Consumer Collection Practices Act, were remanded to the Thirteenth Judicial Circuit in and for Hillsborough County, Florida.