United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN, UNITED STATES DISTRICT JUDGE
Leon Lee brought this action against Defendant loanDepot.com,
LLC (“loanDepot”), alleging violations of the
Telephone Consumer Protection Act (“TCPA”).
Specifically, he alleged violations of 47 U.S.C. §
227(b)(1)(A)(iii), which prohibits the use of automatic
telephone dialing system (“ATDS”) to call a cell
phone without the called party's prior consent. Lee
claimed that loanDepot employed the use of a predictive
dialer-which he argues is an ATDS-to call his cell phone ten
times without his consent. Lee acted pro se throughout the
case was called for trial before a jury on February 7, 2017.
At the close of Lee's evidence, loanDepot moved for
judgment as a matter of law under Rule 50 of the Federal
Rules of Civil Procedure on the grounds that Lee failed to
present any evidence regarding its alleged use of an ATDS.
The Court agreed, noted that it would grant loanDepot's
motion, and dismissed the jury. Counsel for loanDepot
indicated that she would reduce her motion to writing and
file the written motion forthwith. That written motion has
been filed (Doc. 105), and provides the Court an opportunity
to memorialize its holding.
Evidence Presented at Trial
his wife both testified; Lee also read two depositions to the
jury. Through this testimony, he presented evidence that he
had received ten calls from loanDepot to his cell phone. He
also testified that he had not consented to receive the
calls. But neither the live testimony nor the depositions
contained any evidence that loanDepot used an ATDS in making
the calls. Before resting his case, Lee tried to admit an
affidavit that loanDepot had attached to a motion filed
almost two year prior to the trial. In the affidavit, a
loanDepot employee described the company's dialing system
as a “predictive dialer.” When Lee moved to admit
the affidavit, loanDepot objected, arguing that Lee had not
laid proper foundation. The Court agreed and gave Lee an
opportunity to lay foundation, which he was unable to do.
After failing to admit the affidavit, Lee rested his case. At
that point, loanDepot moved for judgment as a matter of law.
of the Federal Rules of Civil Procedure states:
If a party has been fully heard on an issue during a jury
trial and the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the
party on that issue, the court may . . . grant a motion for
judgment as a matter of law against the party on a claim or
defense that, under the controlling law, can be maintained or
defeated only with a favorable finding on that issue.
as a matter of law is only appropriate if “construing
the evidence and all inferences in the light most favorable
to the nonmoving party, ‘the court is certain the
evidence conclusively favors [the moving] party such
that' no reasonable jury could ‘arrive at a
contrary verdict.' ”
only brought one claim to trial. He alleged a violation of 47
U.S.C. § 227(b)(1)(A)(iii). To prevail on such a claim,
Lee had the burden of proving the following elements by a
preponderance of the evidence: (1) loanDepot called Lee's
cellular telephone; (2) using an ATDS; (3) without Lee's
prior consent. Because Lee was unable to lay foundation
as to the admissibility of the loanDepot's affidavit, his
case-in-chief presented no evidence regarding loanDepot's
dialing system. Accordingly, Lee failed to present any
evidence regarding the ATDS element of his claim. The Court
found that no reasonable jury could find that loanDepot was
liable under the TCPA, and granted loanDepot's motion for
judgment as a matter of law.
the Court expressed doubts as to whether Lee would have
survived loanDepot's motion even if he had laid proper
foundation to admit loanDepot's earlier affidavit. The
affidavit would suggest that loanDepot used a predictive
dialer to call Lee. But it would not have elaborated on
whether loanDepot's alleged predictive dialer could be
properly characterized as an ATDS because it contained
software that, when paired with certain software, had the
capacity to store or produce numbers.
Lee was unable to admit any evidence regarding
loanDepot's use of an ATDS, the Court finds that no
reasonable jury could have found loanDepot liable under 47
U.S.C. § 227(b)(1). Accordingly, loanDepot is entitled
to judgment as a matter of law.
THEREFORE ORDERED that loanDepot.com, LLC's Motion for
Judgment as a ...