Timms v. USAA Fed. Sav. Bank

Timms v. USAA Fed. Sav. Bank

Opinion

 [*295]  OPINION & ORDER

This matter is before the court on Defendant USAA Federal Savings Bank ("Defendant") Motion for Summary Judgment ("Motion") on Plaintiff Margueritte Timms's ("Plaintiff") Telephone Consumer Protection Act ("TCPA") and negligent, reckless, and/or wanton training and supervision claims. [ECF No. 64.] For the reasons set forth below, the court grants Defendant's Motion.

PROCEDURAL BACKGROUND

Plaintiff instituted this action on June 1, 2018, seeking to recover damages from Defendant for alleged violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., alleged violation of the TCPA, 47 U.S.C. § 227 et seq., invasion of privacy, and negligent, reckless, and/or wanton training and supervision related to the two statutory claims. [ECF No. 1.] All of Plaintiff's claims relate to two credit card accounts, the first of which was opened by Plaintiff's husband, [**2]  Alan Timms, in 2011. The undisputed facts related to the accounts and to Plaintiff's claims are outlined in the court's prior order dated August 20, 2020. [ECF No. 58.] In the interest of judicial economy, and to the extent relevant, the court incorporates those undisputed facts by reference herein.

The court's August 20, 2020 Order addressed cross-motions for summary judgment.¹ Id. The court ruled in Defendant's favor on the FCRA and invasion of privacy claims. Id. As to the TCPA and training and supervision claims, the Court denied both parties' motions without prejudice to refile following the U.S. Supreme Court's opinion in Facebook, Inc. v. Duguid.

At the time the parties filed,² and the court heard, the cross-motions for summary judgment, there was a circuit split over the definition of "automatic telephone dialing system" ("ATDS"). The Ninth, Second, and Sixth Circuits held that an ATDS is "equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers automatically (even if the system must be turned on or triggered by a person)[.]" Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1053 (9th Cir. 2018); Duran v. La Boom Disco, Inc., 955 F.3d 279, 290 (2d Cir. 2020); Allan v. Penn. Higher Ed. Assistance Agency, 968 F.3d 567, 579 (6th Cir. 2020). In contrast, the Third, Seventh, [**3]  and Eleventh Circuits held that an ATDS is equipment that stores or produces telephone numbers using a random or sequential number generator—the clause "using a random or sequential number generator" modifies both "store" and "produce." Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 468 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301  [*296]  (11th Cir. 2020); Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018).

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