Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ung v. Universal Acceptance Corp.

United States District Court, D. Minnesota

April 6, 2017

Spencer Ung, Plaintiff,
v.
Universal Acceptance Corporation, Defendant.

          Michael S. Hilicki, Keith J. Keogh, Keogh Law, Ltd., Chicago, Illinois, Peter F. Barry, Patrick J. Helwig, Barry & Helwig, LLC, Minneapolis, Minnesota, for Plaintiff.

          David L. Hartsell, Sarah A. Zielinski, McGuireWoods LLP, Chicago, Illinois, Burt M. Rublin, Philip N. Yannella, Daniel JT McKenna, Ballard Spahr LLP, Philadelphia, Pennsylvania, Patrick C. Summers, DeWitt, Mackall, Crounse & Moore, S.C., Minneapolis, Minnesota, for Defendant.

          MEMORANDUM OPINION AND ORDER

          RICHARD H. KYLE United States District Judge

         In this action, Plaintiff Spencer Ung alleges that Defendant Universal Acceptance Corporation (“Universal”) made unauthorized calls to his cell phone, in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. Presently before the Court is Universal's Motion for Summary Judgment. For the reasons that follow, the Court will grant the Motion.

         BACKGROUND

         On the surface, this is (and should be) a relatively straightforward case; indeed, the events giving rise to the action are undisputed. As is often the case, however, things are not quite as simple as they might seem.

         Universal is the financing arm of Interstate Auto Group, Inc., d/b/a CarHop (“CarHop”), an Edina, Minnesota company that sells used cars nationwide to people with poor or no credit. A person interested in buying a CarHop vehicle must submit a financing application listing credit references and the name of the buyer's landlord. This provides Universal with contact information for persons who could pass along messages if the buyer were to fall behind on the vehicle's payments.

         Ung was one such individual whose contact information was provided by a car buyer. In 2013, Joseph Holley purchased a Kia Sorrento from a CarHop location in Crystal, Minnesota; he provided Ung's name and cell-phone number, listing Ung as his landlord. Holley eventually fell behind on the Kia's payments and Universal began placing calls to Ung. It is undisputed that between June and October 2014, Universal called him twelve times on his cell phone. Ung alleges that each of these calls was placed without his consent and, accordingly, violated the TCPA.

         The foregoing is, in essence, the entire crux of this case. But against this simple backdrop, the parties have attempted to drag the Court down a rabbit hole, raising complex arguments about the intricacies and capabilities of the telephone system Universal used to call Ung.[1] This, according to the parties, is because the TCPA only prohibits calls made using an “automatic telephone dialing system [ATDS] . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). The statute defines an ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” § 227(a)(1). The parties' entire dispute, therefore, has devolved into a question about the phone system on which Universal called Ung's cell phone: Ung contends that it qualifies as an ATDS, while Universal contends it does not. The parties have submitted nearly 100 pages of briefs - and a small mountain of documents - addressing the intricacies and capabilities of Universal's telephone system, and having pored over those submissions, the Court concludes that no genuine issue of fact exists, as set forth below.

         STANDARD OF REVIEW

         Summary judgment is proper if, drawing all reasonable inferences in favor of Ung, there is no genuine issue as to any material fact and Universal is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Ricci v. DeStefano, 557 U.S. 557, 586 (2009). Universal bears the burden of showing the material facts in the case are undisputed. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc); Whisenhunt v. Sw. Bell Tel., 573 F.3d 565, 568 (8th Cir. 2009). The Court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to Ung. Beard v. Banks, 548 U.S 521, 529-30 (2006); Weitz Co., LLC v. Lloyd's of London, 574 F.3d 885, 892 (8th Cir. 2009). Ung may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue of material fact for trial. Fed.R.Civ.P. 56(c)(1)(A); Wood v. SatCom Mktg., LLC, 705 F.3d 823, 828 (8th Cir. 2013).

         ANALYSIS

         Finding computerized telephone calls to be the “scourge of modern civilization, ” 137 Cong. Rec. 30821 (1991) (statement of Sen. Hollings), Congress enacted the TCPA in 1991 in an attempt to end “the proliferation of intrusive, nuisance calls to [consumers'] homes from telemarketers.” 105 Stat. 2394 (Dec. 20, 1991), note following 47 U.S.C. § 227. As noted above, the statute bans, among other things, telephone calls to cell phones made using an ATDS, that is, “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).

         According to the Federal Communications Commission (“FCC”) - which is tasked with enacting regulations to implement the TCPA, 47 U.S.C. § 227(b)(2) - the hallmark of an ATDS is the ability to dial numbers without human involvement. As early as 2003, the FCC recognized that the “basic function” of an ATDS is “the capacity to dial numbers without human intervention.” In re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14, 014, 14, 091-92 (July 3, 2003) (emphasis deleted). The FCC has never wavered from this “human intervention” requirement, repeatedly reiterating that the capacity to independently place calls without the involvement of a live person remains central to determining whether telephony qualifies as an ATDS. See In re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 566 (Jan. 4, 2008) (reiterating that basic function of ATDS is “to dial numbers without human intervention”); In re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 15, 391, 15, 392 n.5 (Nov. 29, 2012) (“The Commission has emphasized that this definition covers any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.”) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.