In Dobbin v. Wells Fargo Auto Finance, Inc., 2011 WL 2446566 (N.D.Ill. 2011), Judge Kennelly held that the availability, but not use, of an autodialer was fatal to Plaintiff’s TCPA claim.
Plaintiffs concede, however, that Wells Fargo’s agents’ desk phones can also be used independently of its predictive dialing technology—that is, while a call center agent is not logged into the universal server. And plaintiffs do not suggest that the desk phones have any capacity to autodial on their own. The Court takes as true Snyder’s statements that the agents’ desk phones, including those apparently used to call plaintiffs, were physically connected to Wells Fargo’s automatic dialing system and that the system is used in conjunction with such phones. Snyder’s affidavit, however, does not establish a genuine issue of fact regarding whether manually dialed calls made from Wells Fargo call center desk phones are made “using” equipment with the capacity to autodial within the meaning of the TCPA.
To summarize, there is no evidence that the calls to plaintiffs’ cell phones were autodialed. Rather, the evidence is that the calls were dialed manually. Plaintiffs concede that the desk phones can be used independently of the predictive dialing technology and thus are not necessarily connected to the Conversations System when an agent manually dials a call. Plaintiffs have offered no evidence from which a reasonable jury could find that such a connection existed when the calls at issue here were made. Given these circumstances, no jury reasonably could find based on the evidence presented to the Court that Wells Fargo employees called plaintiffs’ cell phones “using” equipment which has the capacity to autodial.