Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Goad v. Censeo Health, LLC

United States District Court, E.D. Arkansas, Jonesboro Division

May 19, 2016

BRICE GOAD PLAINTIFF
v.
CENSEO HEALTH, LLC DEFENDANT

          OPINION AND ORDER

          J. LEON HOLMES, UNITED STATES DISTRICT JUDGE

         Brice Goad commenced this lawsuit against Censeo Health, LLC, claiming that Censeo Health violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), and the Arkansas Deceptive Trade Practices Act, Ark. Code Ann. § 4-88-101, et seq. (“ADTPA”), when it called his cell phone repeatedly. Censeo Health has moved for summary judgment.

         I.

         Health insurance companies hire Censeo Health to offer annual health assessments to their members and, if a member accepts the offer, to schedule and perform visits. Document #14-1 at 1 ¶ 4. The health insurance companies provide Censeo Health with telephone numbers of members and Censeo Health calls them to offer and schedule health assessment visits. Id. at ¶ 5.

         Goad says that Censeo Health called his cellular telephone number on numerous occasions in 2014 and 2015 trying to reach an individual named Bradley Owens. Document #21-1. Goad’s number was erroneously listed as the number of Bradley Owens. Document #14-1 at 1, ¶ 6. Although Censeo Health periodically receives updated lists of health insurance members, Goad’s number could have been listed on an updated list as Bradley Owens’ number. Id. at 2, ¶ 7. This would cause Goad to be called again after he told Censeo Health’s representatives to remove his number. Id. Censeo Health placed seventeen calls to Goad between May 14, 2014, and April 23, 2015, some of which resulted in neither Goad answering the telephone nor a voicemail message being left. Document #14-2 at 6 and Document #21-2.

         When Censeo Health employees place calls to health insurance members, the employees dial each call manually. Document #14-1 at 2, ¶ 9. Censeo Health’s employees are prompted to dial certain telephone numbers by a computer program that displays the number associated with a health insurance member. Id. at ¶ 10. The computer program has no dialing mechanism and is not connected to the telephone system used to place the calls. Id. Upon completion of a call, the employee enters the outcome of the call into the computer program before the program displays another number. Id. at ¶ 11. Censeo Health does not use artificial or prerecorded voices during calls or messages placed to health insurance members to offer and schedule health assessments. Id. at ¶ 12.

         II.

         A court should grant summary judgment if the evidence demonstrates that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The moving party bears the initial burden of demonstrating the absence of a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party meets that burden, the nonmoving party must come forward with specific facts that establish a genuine dispute of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute of material fact is presented only if the evidence is sufficient to allow a reasonable jury to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court must view the evidence in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences that can be drawn from the record. Spencer v. Jackson Cnty. Mo., 738 F.3d 907, 911 (8th Cir. 2013). If the nonmoving party fails to present evidence sufficient to establish an essential element of a claim on which that party bears the burden of proof, then the moving party is entitled to judgment as a matter of law. Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015).

         III.

         Censeo Health argues that it is entitled to summary judgment on the TCPA claim because it did not use an automatic telephone dialing system or artificial or prerecorded voices. Document #15 at 5. Goad concedes that Censeo Health does not use artificial or prerecorded voices. Document #21 at 2, ¶ 8. Goad, however, argues that Censeo Health’s phone system has the capacity to become an automatic telephone dialing system and, therefore, falls within the TCPA’s reach.

Forty-seven U.S.C. § 227(b)(1)(A)(iii) provides that:
It shall be unlawful for any person within the United States . . . to make any call (other than a call made for emergency purposes or made with prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.

         “The term ‘automatic telephone dialing system’ means equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). “The Commission has emphasized that this definition covers any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers are randomly or sequentially generated or come from calling lists.” Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 15391, 15392, n.5 (2012) (emphasis in original). “[T]he basic functions of an autodialer are to dial numbers without human intervention and to dial thousands of numbers in a short period of time.” Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7975, ¶ 17 (2015) (internal quotations omitted). To be an autodialer, a system does not need the present ability to dial random and sequential numbers without human intervention. Id. at 7974 ¶ 15. If by adding software a system can dial random and sequential numbers without human intervention, then it has the capacity to be an autodialer and falls under the TCPA. Id. at ¶ 16. However, “there must be more than a theoretical potential that the equipment could be modified to satisfy the ‘autodialer’ definition.” Id. at 7975, ¶ 18. Uncontroverted testimony that a system is very clearly not an automatic telephone dialing system warrants summary judgment. Smith v. Securus Techs., Inc., 120 F.Supp.3d 976, 984 (D. Minn. 2015). Censeo Health has provided such testimony. Goad has not rebutted it.

         Censeo Health provided an affidavit from Archie Block, the Director of IT, Security, and Technology Operations for Censeo Health. Document #14-1. In that affidavit, Block testified that Censeo Health’s employees manually dial each call by pressing a button for each digit in the telephone number. Id. at 2, ¶ 9. He also testified that the computer system prompts the employees to dial certain numbers which are displayed to the employee. Id. at ΒΆ 10. He further testified that the computer system has no ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.