Davis v. Diversified Consultants, Inc.
2014 U.S. Dist. LEXIS 87867
D. Mass.2014Background
- DCI pursued debt collection from Davis regarding an account tied to Rosalee Pagan in mid-2012; Innovis provided a Pagan-related number that belonged to Davis; Davis received 60 calls on his cellular line from DCI between Aug and Nov 2012 after stating he was not Pagan and requesting contact stop; LiveVox system used to place calls, with numbers uploaded by a DCI employee and calls routed to DCI staff; LiveVox stored numbers for up to 30 days but erased them nightly, and DCI never used random or sequential dialing despite capacity; court disputes whether LiveVox constitutes an ATDS and whether any calls were placed by DCI, with related affidavits and testimony at summary-judgment stage
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| TCPA standing to sue | Davis is the called party and should have standing | Defendant contends Davis lacked intended recipient standing | Davis has standing |
| ATDS under TCPA | LiveVox had capacity to store and dial numbers from lists, meeting ATDS | Leszczynski contradicts Pye; LiveVox memo says no random/sequential generation | LiveVox constitutes ATDS; summary judgment for TCPA violation granted |
| Cellular-call applicability of TCPA | Calls were to cellular number and placed by ATDS | Blame the third-party system and not DCI | Calls to plaintiff’s cellular number violated TCPA |
| FDCPA viability (harassment/cessation of calls) | Sixty calls over ~3 months, despite being told not to call; rude conduct | No clear harassing pattern; need more facts | Material facts exist; FDCPA claim not granted on summary judgment |
| Massachusetts Privacy Act intrusion | Repeated calls and skip-trace sourcing invaded privacy | Not clearly actionable under MA Privacy Act | Massachusetts Privacy Act claim denied for lack of precedent but denial qualified |
Key Cases Cited
- Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012) (standing for TCPA called party)
- Harris v. World Fin. Network Nat. Bank, 867 F. Supp. 2d 888 (E.D. Mich. 2012) (notes on TCPA standing and willful conduct)
- Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1 (1st Cir. 1994) (sham affidavit rule; contradicting testimony cannot defeat summary judgment)
- Leyse v. Clear Channel Broadcasting, Inc., 545 F. App’x 444 (6th Cir. 2013) (Chevron deference to FCC TCPA interpretations; ATDS definitions)
- Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036 (9th Cir. 2012) (predictive dialer as ATDS under TCPA)