Joshua Brenner v. American Education Services ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1981
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Joshua Seth Brenner
lllllllllllllllllllll Plaintiff - Appellant
v.
American Education Services (AES)
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: November 15, 2017
Filed: November 21, 2017
[Unpublished]
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Before BENTON, BOWMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Joshua Seth Brenner sued American Education Services (AES), alleging
violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227. Brenner
appeals the district court’s1 adverse grant of summary judgment. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
Reviewing the record de novo in the light most favorable to the non moving
party, this court concludes that summary judgment was proper. See Murchison v.
Rogers, 779 F.3d 882, 886-87 (8th Cir. 2015) (standard of review). Brenner failed
to provide probative evidence that AES used an automatic telephone dialing system,
or a prerecorded or artificial voice to make calls to his cell phone, an essential
element of his claim. See 47 U.S.C. § 227(b) (prohibiting calls to cell phones using
automatic telephone dialing system or artificial or prerecorded voice without prior
express consent of called party); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(summary judgment is proper “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial”); Moody v. St. Charles Cty., 23 F.3d
1410, 1412 (8th Cir. 1994) (to defeat summary judgment, non-moving party must
substantiate allegations with sufficient probative evidence that would allow finding
in his favor based on more than conjecture, speculation, or his own naked assertions).
The judgment is affirmed. See 8th Cir. R. 47B.
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1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
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