335 F. Supp. 3d 951
E.D. Mich.2018Background
- Plaintiff Darcel Keyes sued Ocwen Loan Servicing alleging at least 2,781 automated calls from May 2013–Dec 2016 to collect debt, asserting TCPA (negligent and willful) and MRCPA claims.
- Calls were placed using an Aspect Unified IP system ("Aspect System"); parties agree it dials numbers from a stored list (Realservicing database) and that Ocwen cannot access the system source code.
- Keyes relied on an expert report by Jeffrey Hansen to show the Aspect System is an ATDS; Ocwen moved to exclude that report under Daubert/Rule 702.
- Both parties filed cross-motions for partial summary judgment: Ocwen sought judgment on TCPA claims; Keyes sought liability and willfulness/damages under the TCPA and MRCPA.
- The court excluded Hansen’s report for lack of testing/inspection of the actual system and for impermissible legal conclusions; the court then granted Ocwen summary judgment on Keyes’s TCPA claims and declined supplemental jurisdiction over the remaining MRCPA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Hansen’s expert report | Hansen’s review of manuals and prior analyses suffices to opine the Aspect System is an ATDS | Hansen did not test or inspect Ocwen’s actual Aspect System; opinions rest on insufficient facts and improper legal conclusions | Excluded: report unreliable under Rule 702/Daubert and contains legal conclusions inadmissible from an expert |
| Whether Aspect System is an ATDS (capacity) | System runs on Linux/Windows and has capacity to function as an autodialer | Ocwen cannot modify source code; capacity would require more than "flip a switch"—would need code access/rewriting | Aspect System does not have present capacity as an ATDS; Ocwen entitled to summary judgment on capacity question |
| Whether Aspect System is an ATDS (functions) | Predictive-dialer characteristics and prior FCC guidance make Aspect an ATDS regardless of list-based dialing | System dials from a stored list and lacks random/sequential number generation; Ocwen cannot enable that function | System lacks the generation/dialing of random/sequential numbers; thus not an ATDS as a matter of law |
| Supplemental jurisdiction over MRCPA claims after TCPA dismissal | Maintain MRCPA claims in federal court | Dismiss federal claims; decline to exercise supplemental jurisdiction | Court declined to exercise supplemental jurisdiction and dismissed the remaining state-law claims from federal docket |
Key Cases Cited
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993) (trial court gatekeeping factors for expert reliability)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (U.S. 1999) (Daubert principles apply to non-scientific expert testimony)
- GE v. Joiner, 522 U.S. 136 (U.S. 1997) (courts may exclude expert opinion with analytical gap from data to opinion)
- In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008) (distinguish reliability from credibility; exclusion is exception)
- ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (vacating FCC's 2015 autodialer definitions; clarifying ATDS capacity/functions)
- King v. Time Warner Cable Inc., 894 F.3d 473 (2d Cir. 2018) (post-ACA circuit interpretation on ATDS issues)
- Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244 (6th Cir. 2001) (party offering expert bears burden to establish admissibility)
- Herrick v. GoDaddy.com LLC, 312 F. Supp. 3d 792 (D. Ariz. 2018) (device not an ATDS where modification requires third-party source-code access)