Real quick one for you folks.

A TCPA Defendant was just denied summary judgment on a prerecorded call claim because it never actually asked for the Plaintiff to produce the alleged prerecorded calls.

In Gentner v. Navient Solutions, Case No. 1-20-cv-00747-LJV-JJM, 2021 U.S. Dist. LEXIS 181460  (W.D.N.Y.  September 21, 2021) the Defendant moved for summary judgment arguing it did not use an ATDS and arguing that the Plaintiff had no evidence a prerecorded call was made to his phone.

The Court granted summary judgment on the ATDS issue–the Court found the Defendant’s declaration that the system did not store or produce numbers using a RoSNG was unrebutted–but denied as to the prerecorded calls.

In essence the Court found that the Defendant had never asked the Plaintiff to produce evidence of the prerecorded calls. So it could not prove that Plaintiff lacked such evidence at trial.

And to the case moves forward.

Pro Tip: Ask for evidence of plaintiff’s claims in discovery before moving for summary judgment.

Happy weekend TCPAWorld!