Norman v. Allianceone Receivables Management, Inc. , 637 F. App'x 214 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 22, 2015*
Decided December 22, 2015
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 15-1780
WAYNE NORMAN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 14 C 5930
ALLIANCEONE RECEIVABLES
MANAGEMENT, INC., Edmond E. Chang,
Defendant-Appellee. Judge.
ORDER
Wayne Norman appeals from the grant of summary judgment against him in this
suit under the Telephone Consumer Protection Act, see 47 U.S.C. § 227(b)(1)(A)(iii). He
contends that AllianceOne used an autodialer to make seven unsolicited calls to his cell
phone. Autodialers use computer software to dial a phone number automatically and
then, once a call is answered, the software connects the call recipient to a live
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15-1780 Page 2
representative. The Act forbids this. See Mims v. Arrow Fin. Servs., LLC, 132 S.Ct. 740, 745
(2012). The district court granted summary judgment after AllianceOne produced
evidence showing that its calls to Norman were dialed manually, which the Act permits.
Because that evidence is undisputed, we affirm.
We construe the record evidence in favor of Norman, the non-movant, and begin
with his evidence. Norman cites to AllianceOne’s website, which advertises that its
capabilities “include” autodialers. He also swears in a declaration that when he
answered calls from AllianceOne, he heard a “pause,” “clicking,” and “dead air.” He
referred the court to a guide from the Federal Communication Commission, which
explains that autodialers “often” result in “hang ups” and “dead air.”
AllianceOne submitted a declaration from the company’s Vice President of
Business Analytics and a log of the calls to Norman’s phone to show that he was not
autodialed. The log listed a code (the word “MAN”) next to Norman’s cell phone
number. The Vice President explained that the code means that calls to Norman were
dialed manually. He explained that the system that AllianceOne uses to call manually
cell phones like Norman’s lacks the capacity to make automated calls; it requires a live
representative to enter all phone numbers by hand. The Vice President also reviewed the
company’s recordings of the calls to Norman’s phone. Five of the calls to Norman went
to his voicemail and a sixth call was unanswered because the connection was lost. The
company had no record of a seventh call.
The district court granted summary judgment for AllianceOne. First it considered
and rejected Norman’s objection to the Vice President’s declaration. Norman had argued
that because the executive did not place the calls to Norman himself, he lacked personal
knowledge of those calls. But the call records and the Vice President’s declaration, the
court explained, were admissible evidence because the Vice President was the
“custodian of the records” and “familiar with the company’s recordkeeping practices.”
Therefore, even if the Vice President did not make the calls to Norman’s cell phone
personally, he could swear to the company’s business records and practices. By contrast
Norman’s evidence, the court continued, was insufficient to create a fact dispute.
AllianceOne’s website did not describe the practice for the calls to Norman. And, the
court also ruled, the FCC’s guide was inadmissible hearsay; furthermore, even if
admissible, it did not refute AllianceOne’s evidence that no call to Norman was
autodialed.
On appeal Norman disputes the district court’s grant of summary judgment. We
review a district court’s grant of summary judgment de novo. See Burton v. Downey, 805
No. 15-1780 Page 3
F.3d 776, 783 (7th Cir. 2015). But we review its rulings on the admissibility of evidence
for abuse of discretion. See Makowski v. SmithAmundsen LLC, 662 F.3d 818, 822 (7th Cir.
2011); Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007). Norman argues that, in
accepting the Vice President’s declaration and the call log over his own declaration
about clicks and pauses and the FCC guide, the district court weighed evidence and did
not view it in the light most favorable to him.
The district court’s evidentiary rulings were permissible. First, the executive’s
declaration and the call logs were admissible. Business records, such as AllianceOne’s
call logs, are admissible when authenticated by a custodian. See FED. R. EVID. 803(6);
Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000). The Vice President was the
custodian because he was familiar with the company’s record keeping practices, and he
did not need to have personally made the calls to Norman to testify about the meaning
of the records. See Cocroft v. HSBC Bank USA, N.A., 796 F.3d 680, 686 (7th Cir. 2015);
Thanongsinh v. Bd. of Educ., 462 F.3d 762, 775–77 (7th Cir. 2006). Second, the court did not
abuse its discretion in excluding as hearsay the excerpt from the FCC guide about dead
air. That excerpt does not fit into any of the relevant hearsay exceptions for public
records: the excerpt does not describe the FCC’s activities, a matter that it observed, or its
factual findings of an investigation. See FED. R. EVID. 803(8)(A). But even if an exception
applied, the evidence was insufficient to create a fact dispute. The guide said only that
autodialers often produce dead air; it did not say the converse—that dead air means that
a call was autodialed. Calls are dropped or paused for many reasons; the FCC guide
could therefore not tell a rational factfinder why Norman experienced dead air or a
pause on his calls. Finally, no genuine fact dispute came from AllianceOne’s website. It
said only that the company’s capabilities include autodialers, but not that it used that
capability always or even often, let alone in cases like Norman’s.
With the call log showing that AllianceOne manually called Norman, and no
contrary evidence about those calls in the record, the district court correctly granted
summary judgment. No reasonable jury could conclude from this evidence that an
autodialer called Norman. See Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 685
(7th Cir. 2013) (no material dispute requiring trial in TCPA suit when corporate
representative explained in detail how records were compiled and plaintiff failed to
demonstrate that any of the records were inaccurate). Accordingly the judgment is
AFFIRMED.