United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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. (Dkt. 35-3 ¶¶ 21-22).
On June 19, 2017, On Deck called Plaintiff at approximately
1:35 P.M. (Dkt. 74 at 2).
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.
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
Motion to Strike Plaintiff's Proposed Expert
702 / Daubert Standard
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
(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 ...