In Jackson v. Cavalry Portfolio Services, LLC, WL 517490 (E.D.Mo. 2014), Judge Jackson granted summary judgment to a TCPA defendant who submitted an affidavit of its paralegal stating that the calls were manually dialed.
The TCPA prohibits persons from (1) making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party)” (2) “using any automatic telephone dialing system or an artificial or prerecorded voice,” (3) “to any telephone number assigned to a … cellular telephone service[.]” 47 U.S.C. § 227(b)(1)(A). An automatic telephone dialing system is defined as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” Id. at § 227(a)(1)(A), (B). Defendant argues that this claim fails as a matter of law because the undisputed facts demonstrate that the calls made by defendant to plaintiff’s cellular telephone were dialed manually and without the use of an automatic dialing system. Terry Rivera, the litigation paralegal for defendant, has submitted an affidavit stating that he has worked in this position for 13 years; is familiar with defendant’s procedures, telephone systems, and document retention and organization system; that he reviewed the collections notes and records for plaintiff’s account; and that based on these records plaintiff was never contacted by defendant through an automatic dialing system. See Doc. # 20–1, ¶ 2–4. Rivera attaches plaintiff’s account notes and states that the action code “NON” indicates that plaintiff’s cellular number was dialed manually. Id. at ¶ 5. Plaintiff responds by challenging Rivera’s affidavit. Plaintiff argues that the affidavit is inadmissible hearsay because Rivera is not a records custodian and does not have personal knowledge about the subject of his testimony. The Court finds plaintiff’s challenge to be without merit. While plaintiff is correct that Rule 56(c)(4) of the Federal Rules of Civil Procedure requires affidavits used to support a motion for summary judgment to be based on personal knowledge, Rivera affirmatively states in his affidavit that he “has personal knowledge of the facts” to which he attests, that he has been employed as a litigation paralegal with the defendant company for 13 years, and that he is familiar with defendant’s procedures, telephone systems, and document retention. The Court finds Rivera’s experience and review of plaintiff’s account documents to be based upon his personal knowledge and not inadmissible hearsay. See Moore v. CCB Credit Services, Inc., 4:11–CV–2132–RWS (E.D.Mo. Jan. 18, 2013) (affiant’s “position with [the company], his familiarity with its procedures, and his review of the company’s records satisfy the requirements of Rule 56(c)(B)(4).”). Once the moving party has met its burden, the non-moving party may not rest on the allegations of his pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. United of Omaha Life Ins. Co., 458 F.3d at 791 (quoting Fed.R.Civ.P. 56(e)). Plaintiff has not set forth any facts, by affidavit or through any other evidence, that defendant used an automatic dialer when contacting plaintiff on his cellular telephone. Accordingly, the defendant is entitled to judgment as a matter of law on plaintiff’s TCPA claim.