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Morgan v. On Deck Capital, Inc.

United States District Court, W.D. Virginia, Charlottesville Division

August 29, 2019

Christopher Morgan, Plaintiff,
On Deck Capital, Inc ., Defendants.



         The Telephone Consumer Protection Act (“TCPA”) forbids “any person within the United States . . . [from making] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . unless such call is made solely to collect a debt owed to or guaranteed by the United States. 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA defines “automatic telephone dialing system” as “equipment” with the “capacity” to: “(A) store or produce telephone numbers to be called, using a random or sequential number generator; and (B) dial such numbers.” 47 U.S.C. § 227.[1]

         This matter is before the Court upon Defendant On Deck Capital, Inc.'s (“On Deck”) motion for summary judgment pursuant to Fed.R.Civ.P. 56(a). Plaintiff Christopher Morgan brought this putative class action under the TCPA, alleging that On Deck placed an unsolicited call to him on June 19, 2019, via an “automatic telephone dialing system” (“ATDS”), a practice prohibited by the TCPA. Also pending is On Deck's motion to strike Plaintiff's proposed expert witness, which is relevant to whether Plaintiff has presented sufficient evidence to survive On Deck's motion for summary judgment. The sole issue On Deck presents in its motion for summary judgment is whether a genuine dispute of fact exists as to whether Plaintiff was called on a device that constitutes an ATDS.

         For the reasons explained herein, On Deck's motion to strike the testimony of Plaintiff's expert witness Randall Snyder is GRANTED in part and DENIED in part. Because Snyder's testimony, together with other evidence cited by Plaintiff, creates a genuine dispute of a material fact as to whether the device used to call plaintiff constitutes an ATDS, On Deck's motion for summary judgment must be DENIED.

         I. Factual Background

         Defendant On Deck Capital is an online lender that offers financing to small businesses, and calls individuals who it believes to be interested in a small business loan. (Dkt. 35-1 ¶ 8). Plaintiff owns a small business, Piedmont Hauling, LLC, and has previously filed TCPA claims against other companies. (Dkt. 35-2 ¶¶ 4, 17). Plaintiff originally expressed interest in a loan during a conversation with Floyd Consultancy on June 16, 2017. (Dkt. 35 ¶ 5). Floyd Consultancy is a company that identifies individuals interested in obtaining a small business loan, then provides the individual's contact information to Leads2Results, a company that in turn provides the individual's information to On Deck Capital. (Dkt. 35-3 ¶¶ 6-17). After the call, Floyd Consultancy passed Plaintiff's contact information to Leads2Results, which in turn passed it to On Deck.[2] (Dkt. 35-3 ¶¶ 21-22). On June 19, 2017, On Deck called Plaintiff at approximately 1:35 P.M. (Dkt. 74 at 2).

         There is no dispute that the call at issue was initiated by an On Deck Sales Department representative using the “Manual Touch Mode” dialing domain on a telephone system designed by a company called “Five9.” (Dkt. 74 at 5; dkt. 36 at 2). On Deck Capital moves for summary judgment, arguing that there is no genuine dispute that the “Manual Touch Mode” domain does not qualify as an ATDS covered by the TCPA. Plaintiff, on the other hand, argues that the Manual Touch Mode domain is just one aspect of a larger system capable of automatic dialing and thus qualifies as an ATDS.

         II. Analysis

         Since the Court's decision on whether to exclude Plaintiff's proposed expert is relevant to whether Plaintiff can present sufficient evidence to withstand On Deck's motion for summary judgment, that issue will be analyzed first.

         A. Motion to Strike Plaintiff's Proposed Expert

         1.Rule 702 / Daubert Standard

         Fed. R. Evid. 104(a) gives district courts the power to decide preliminary questions about whether “a witness is qualified . . . or evidence is admissible.” Under Fed.R.Evid. 702, “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of ...

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