271 F. Supp. 3d 1043
W.D. Wis.2017Background
- Baemmert received over 60 debt-collection calls in a 12-day period in Jan–Feb 2016 from numbers tied to Credit One vendors (First Contact and iEnergizer); he does not have a Credit One card and repeatedly told callers they had the wrong number.
- Call logs, a recorded February 3, 2016 call, and testimony show at least some calls were placed by First Contact on Credit One’s behalf and that First Contact used a computerized/automated dialing system (ATDS) for some calls.
- Baemmert’s cellular service had been disconnected before these calls; he used the TextMe VoIP app (Wi‑Fi only) and testified that inbound calls consumed credits and that he was charged for calls.
- Credit One produced declarations and interrogatory answers denying call records or that vendors called Baemmert, but the court found those materials conclusory, hearsay, or lacking foundation and therefore not raising a genuine dispute on vendor calls or ATDS use for some calls.
- Credit One belatedly produced a TextMe CFO declaration asserting inbound calls were not charged; the court excluded that declaration as an untimely Rule 26 disclosure.
- Procedurally: cross-motions for summary judgment; court grants summary judgment to Baemmert on liability under the TCPA (leaving number of ATDS calls and damages for trial) and asks Baemmert to brief whether Wisconsin law recognizes an invasion-of-privacy claim based on unwanted calls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Credit One (or its vendors) placed the calls | Baemmert: call logs, recording, and testimony show Credit One’s vendors called him on Credit One’s behalf | Credit One: searches show no record of calls; denies vendor calls in interrogatories/declarations | Held: calls were made by Credit One’s vendors (evidence that vendor calls occurred is not genuinely disputed) |
| Whether calls were made using an ATDS | Baemmert: recording includes vendor admitting use of a “computerized dialing system”; dead air and stored-number evidence support ATDS use | Credit One: denies/has no records; challenges foundation of plaintiff’s evidence | Held: At least some calls by First Contact used an ATDS; whether every call was by ATDS is genuinely disputed |
| Whether calls were to a number assigned to a cellular service | Baemmert: number was used on his smartphone (TextMe) and calls were received on his device | Credit One: contends calls were not to a cellular number; noted TextMe not a cellular service | Held: number was a TextMe VoIP number, not assigned to a cellular telephone service (so TCPA cellular-number prong fails) |
| Whether Baemmert was charged for the calls (TCPA alternative ground) | Baemmert: testified inbound calls used TextMe credits and he paid for credits; no admissible contrary evidence | Credit One: points to FCC language and belated TextMe CFO declaration saying inbound calls not charged | Held: Plaintiff sufficiently showed he incurred charges; Credit One’s contrary declaration excluded as untimely, so call-charged prong satisfied for at least some calls |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- Sterk v. Path, Inc., 46 F. Supp. 3d 813 (N.D. Ill. 2014) (defines ATDS as calling from a stored list without human intervention)
- Avila v. CitiMortgage, Inc., 801 F.3d 777 (7th Cir. 2015) (plaintiffs need not plead specific legal theories such as agency)
- Keller v. Patterson, 343 Wis. 2d 569 (Wis. Ct. App. 2012) (unwanted phone calls do not support invasion-of-privacy claim under Wisconsin law)