In Ewing v. Pollard, No. 19-CV-855-CAB-BGS, 2020 U.S. Dist. LEXIS 22659 (S.D. Cal. Feb. 10, 2020), Judge Bencivengo dismissed a TCPA case due to calls being manually dialed.
This section of the TCPA prohibits “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– . . . (iii) 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). Thus, the elements of a claim under this section are: “(1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). There is no dispute as to the first element as Pollard concedes that he called Ewing and offers no evidence disputing Ewing’s declaration [*9] that the number Pollard called was for a cellular telephone. There is a dispute about the second and third elements. As to the second element, as discussed above, Pollard offers a declaration under oath that he does not own autodialing equipment and that he manually dialed Ewing’s number on his own cell phone. [Doc. No. 32 at ¶ 7.] He also includes his phone records showing the call. [Id. at Ex. C.] Ewing, meanwhile, offers no evidence from which a reasonable jury could conclude that Pollard used an ATDS. His declaration states that “Pollard used an ATDS device that has the capacity to store numbers to call my DNC registered cellular phone,” but offers no facts or foundation for this statement or any evidence contradicting Pollard’s evidence that Pollard manually dialed Ewing from Pollard’s cell phone. Moreover, Ewing offers no basis for a finding that any discovery would lead to evidence that Pollard used an ATDS. See Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (holding that a party seeking a continuance for further discovery to oppose summary judgment, “must make clear what information is sought and how it would preclude summary judgment.”) (quoting Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir.1987)); see also Sec. & Exch. Comm’n v. Stein, 906 F.3d 823, 833 (9th Cir. 2018) (stating that “[t]he facts sought must be ‘essential’ to the party’s [*10] opposition to summary judgment, Fed. R. Civ. P. 56(d), and it must be ‘likely’ that those facts will be discovered during further discovery,” and that “evidence [that is] the object of mere speculation . . . is insufficient to satisfy the rule.”) (internal quotation marks and citation omitted). Accordingly, to the extent Ewing seeks a continuance pursuant to Federal Rule of Civil Procedure 56(d), his request is denied. In light of the foregoing, the Court finds that the undisputed facts demonstrate that Pollard manually dialed Ewing’s cell phone using Pollard’s own cell phone. Because Pollard did not use an automatic telephone dialing system,3 he did not violate the TCPA and is entitled to summary judgment on this claim. Thus, the Court need not address whether a dispute of fact exists as to the consent element of a TCPA claim.