In Carlisle v. Green Tree Servicing, LLC, 2016 WL 4011238, at *1 (N.D.Ga., 2016), Judge Thrash granted summary judgment to a TCPA creditor who manually dialed calls to the called party.
The Plaintiff brings a claim under the TCPA. “The TCPA prohibits the use of an [Automatic Telephone Dialing System (“ATDS”) ] to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party)…to any telephone number assigned to a…cellular telephone service.” Where the evidence shows that a call was made manually, summary judgment is appropriate for the Defendant because no reasonable jury could conclude that an ATDS made the call. The fact that a company possesses or uses an ATDS is not sufficient to show that the company used the ATDS to call a particular person. Here, the Defendant offers affirmative evidence that the calls to the Plaintiff were made manually, not by an ATDS. The Plaintiff attempts to rebut this evidence, but offers only evidence that the Defendant did possess and use an ATDS in some circumstances. That evidence is insufficient to show that the Defendant used an ATDS to call the Plaintiff. Therefore, the only evidence is that the calls were made manually. The calls, therefore, fail to fall within the category of calls prohibited by the TCPA. The Defendant’s motion for summary judgment should be granted.