IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

COLETTE JENKINS, 

 Plaintiff,

 v. 1:14-cv-2791-WSD

MGAGE, LLC and LL ATLANTA, 

LLC d/b/a OPERA NIGHTCLUB, 

 Defendants. 

OPINION AND ORDER

This matter is before the Court on Plaintiff Colette Jenkins’s (“Plaintiff”) 

Motion for Summary Judgment [34] (“Plaintiff’s Motion”) and Defendants 

mGage, LLC (“mGage”) and LL Atlanta, LLC d/b/a Opera Nightclub’s (“Opera”) 

(together, “Defendants”) Motion for Summary Judgment or, in the Alternative, 

Partial Summary Judgment on Intentionality [37] (“Defendants’ Motion”). Also 

before the Court are mGage’s Motion for Partial Summary Judgment [36] 

(“mGage’s Motion”), Plaintiff’s Motion to Strike mGage’s Motion [47], and 

Plaintiff’s “Motion for Leave to File Plaintiff’s Statement of Facts (Out-of-Time)” 

[54] (“Motion for Leave”). 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 1 of 20 Pg ID 1667 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 1 of 20
2

I. BACKGROUND 

A. Summary

This is an action for alleged violations of the Telephone Consumer 

Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), which prohibits using an 

automatic telephone dialing system (“ATDS”) to send a text message to a cellular 

telephone for other than emergency purposes or without the recipient’s prior 

express consent. See 47 U.S.C. § 227(b)(1)(A)(iii). Plaintiff maintains that, from 

August 2013 through July 2014, Defendants used an ATDS to send Plaintiff 

approximately 150 text messages promoting events at a nightclub operated by 

Opera. Plaintiff argues that she did not consent to receiving the text messages and 

that she continued to receive them even after she told Defendants seventeen (17) 

times to stop sending her text messages. Defendants contend they did not employ 

an ATDS, including because the text messages were sent only as the result of 

human intervention. 

B. mGage’s Platform

 Defendant mGage is a mobile marketing company that provides content 

routing services for corporate customers. (Defs.’ Statement of Material Facts [42] 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 2 of 20 Pg ID 1668 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 2 of 20
3

(“DSOMF”) ¶¶ 3, 7-8, 14).1

 mGage provides a platform (the “Platform”) with 

which a customer, such as Opera, may interact to send text messages to recipients. 

(Id. ¶ 7). Opera is a night club that had a contract with mGage. Under the 

contract, Opera had a license to utilize mGage’s Platform to transmit promotional 

text messages to its customers. (Id. ¶¶ 12-13, 17-18). Opera used mGage’s 

Platform to send the promotional text messages as issue in this case. (See id. ¶ 22). 

 To send promotional text messages, an mGage customer, such as Opera, 

must navigate to a website and log into mGage’s Platform. (See id. ¶¶ 63-65).2

 

Once logged in, an Opera employee must type the content of the text message into 

the Platform. (Id. ¶ 70). Opera employees determined the content of each text 

message, (id. ¶ 67), and typed the contents of the text message into the Platform, 

(id. ¶ 70). After entering the text message content into the Platform, the Platform 

allowed Opera employees to choose when to send out the text message. (Id. ¶ 71). 

If the employee wanted to send the text messages immediately, the employee 

clicked the “send” button. (Id. ¶ 73). The employee could also use the drop-down 

 

1

 Unless otherwise noted, Plaintiff admits the facts in Defendant’s Statement 

of Material Facts recited below. (See Pl.’s Resp. to DSOMF [43] (“PRDSOMF”)). 

2

 Plaintiff denies that an Opera employee, Rosanna Penaflorida, created and 

sent out promotional text messages to Opera’s customers using mGage’s Platform. 

Plaintiff fails to cite any evidence in the record to support her denial. 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 3 of 20 Pg ID 1669 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 3 of 20
4

calendar function on the Platform to schedule a later date and time at which a text 

message would be sent. (Id. ¶¶ 71-74). 

 Opera determined the telephone numbers to which text messages were sent. 

(Id. ¶ 76).3

 It did so by choosing a particular list of numbers that was housed on 

mGage’s Platform. (Id. ¶ 77). Opera employees uploaded the list of numbers to 

the Platform as a Common Separated Values (“CSV”) file. (Id. ¶ 78). The 

numbers in the CSV file were obtained by promotional campaigns that asked 

individuals to text a certain keyword or phrase to 67372, Opera’s short code. 

When an individual texted the keyword or phrase to the short code, their number 

was added to the list that corresponded to the promotional campaign. (Id. ¶ 81). 

Each keyword or phrase was placed on a different list, so the customer could sign 

up and get information about different events, for example a college night event or 

 

3

 Plaintiff denies this assertion, stating “Opera did not know to whom or to 

what telephone numbers its messages were being sent, as all of those numbers 

were stored on the text messaging system in a CSV file.” (PRDSOFM ¶ 76). The 

deposition testimony Plaintiff relies on in support of her position is not persuasive. 

Ms. Penaflorida testified that there were between 10,000 and 50,000 numbers on 

the list of telephone numbers to which Opera sent texts, and that it was “[p]retty 

easy” to remove a telephone number from the list. (Dep. of Rosanna Penaflorida 

[34.4] (“Penaflorida Dep.”) at 18, 20). This testimony does not support that Opera 

did not know to whom or to what telephone numbers its messages were sent. 

Moreover, the testimony of Harvey Scholl, mGage’s Rule 30(b)(6) witness, 

supports that Platform users like Opera compile and control the telephone numbers 

in the CSV file. (Dep. of Harvey Scholl [38.5] (“Scholl Dep.”) at 19-21). 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 4 of 20 Pg ID 1670 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 4 of 20
5

an electronic music night. (Id. ¶¶ 82, 83). Opera also manually uploaded 

telephone numbers to the Platform when individuals added their number to a list on 

Opera’s website, or on a guest list form. (Id. ¶ 85). 

C. Text Messages to Plaintiff 

 On September 26, 2012, an individual used a mobile device assigned a 

number ending in 2763 to text the word “college” to Opera’s short code. (Id.

¶ 118). Around April 2013, the telephone number was reassigned to Plaintiff. (Id.

¶ 119). Around August 2013, Plaintiff began receiving text messages advertising 

Opera’s upcoming events. (Id. ¶ 121). She continued receiving text messages 

from Opera’s short code through July 2014. (Id. ¶ 122). Plaintiff sent multiple 

text messages asking to be removed from Opera’s promotional text message list. 

(Id. ¶ 123). On July 14, 2014, Plaintiff responded “STOP TEXT” to Opera’s short 

code. (Id. ¶ 124). The final message Plaintiff received from Opera’s short code 

stated, “You have been opted out of Opera Nightclub Alerts and will no longer 

receive messages from us. Reply HELP for help. Msg&Data rates may apply.” 

(Id. ¶ 125). 

D. Procedural History

 On August 28, 2014, Plaintiff filed this action, alleging violations of the 

TCPA. Plaintiff seeks statutory damages, actual damages, treble damages, costs, 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 5 of 20 Pg ID 1671 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 5 of 20
6

and interest. (Am. Compl. [15] at 10). On August 31, 2015, Plaintiff filed her 

Motion. In it, she seeks summary judgment, arguing that “[t]here is no dispute that 

Defendant sent numerous, non-emergency text messages using an automated 

telephone dialing system to the cellular telephone of Plaintiff . . . .” ([34] at 14). 

Plaintiff incorporated a statement of material facts into the “Factual Background” 

section of her brief in support of her Motion. She did not include with her Motion 

the separate statement of material facts required by the Court’s Local Rules. See

L.R. 56.1(B), NDGa. In response to Plaintiff’s Motion, Defendant argues 

Plaintiff’s Motion should be denied, including because of Plaintiff’s failure to file 

the separate statement of undisputed facts that the Court’s Local Rules require. 

 On August 31, 2015, Defendant mGage filed its Motion. mGage seeks 

partial summary judgment, arguing it cannot be held liable for any violations of the 

TCPA that occurred prior to January 4, 2014—the date upon which mGage 

purchased Velti, the company that owned the Platform Opera used to send text 

messages. In response, Plaintiff seeks to strike mGage’s Motion, arguing that it 

relies on documents that were not produced to Plaintiff. 

 On September 1, 2015, Defendants moved for summary judgment. In the 

Motion, they argue, among other things, that Plaintiff fails to show that Defendants 

employed an ATDS, including because the text messages were sent only as the 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 6 of 20 Pg ID 1672 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 6 of 20
7

result of human intervention. Defendants also seek partial summary judgment on 

Plaintiff’s claim for treble damages, arguing that Plaintiff fails to show Defendants 

intentionally ignored Plaintiff’s requests to stop sending text messages. 

 On October 21, 2015, Plaintiff filed her Motion for Leave to file her separate 

statement of material facts out-of-time. Defendants oppose the motion. 

II. ANALYSIS 

A. Legal Standard

 Summary judgment is appropriate where the pleadings, the discovery and 

disclosure materials on file, and any affidavits show that there is no genuine issue 

as to any material fact and that the moving party is entitled to judgment as a matter 

of law. See Fed. R. Civ. P. 56. The party seeking summary judgment bears the 

burden of demonstrating the absence of a genuine dispute as to any material fact. 

Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the 

moving party has met this burden, the nonmoving party must demonstrate that 

summary judgment is inappropriate by designating specific facts showing a 

genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 

(11th Cir. 1999). The nonmoving party “need not present evidence in a form 

necessary for admission at trial; however, he may not merely rest on his 

pleadings.” Id. 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 7 of 20 Pg ID 1673 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 7 of 20
8

 “At the summary judgment stage, facts must be viewed in the light most 

favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those 

facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). Where the record tells two 

different stories, one blatantly contradicted by the evidence, the Court is not 

required to adopt that version of the facts when ruling on summary judgment. Id. 

“[C]redibility determinations, the weighing of evidence, and the drawing of 

inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at 

1282. “If the record presents factual issues, the court must not decide them; it must 

deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. The party 

opposing summary judgment “‘must do more than simply show that there is some 

metaphysical doubt as to the material facts . . . . Where the record taken as a whole 

could not lead a rational trier of fact to find for the nonmoving party, there is no 

genuine issue for trial.’” Scott, 550 U.S. at 380 (quoting Matsushita Elec. Indus. 

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). A party is entitled 

to summary judgment if “the facts and inferences point overwhelmingly in favor of 

the moving party, such that reasonable people could not arrive at a contrary 

verdict.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 

2002) (quotations omitted). 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 8 of 20 Pg ID 1674 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 8 of 20
9

B. Discussion

 The crux of the parties’ dispute is whether the Platform is an ATDS under 

the TCPA. Defendants claim a key feature of an ATDS is the capacity to dial 

numbers or send text messages without human intervention. Defendants argue 

that, because the Platform requires several steps to be performed by a human, it is 

not an ATDS. Plaintiff contends that orders promulgated by the Federal 

Communications Commission (“FCC”) support that the Platform is an ATDS.

 The TCPA provides that it is “unlawful for any person within the United 

States, or any person outside the United States if the recipient is within the United 

States—(A) to make any call (other than a call made for emergency purposes or 

made with the prior express consent of the called party) using any automatic 

telephone dialing system . . . (iii) to any telephone number assigned to 

a . . . cellular telephone service . . . or any service for which the called party is 

charged for the call.” 47 U.S.C. § 227(b)(1). “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.” Id. § 227(a)(1). 

 The Hobbs Act, 28 U.S.C. § 2342(1), “provides the federal courts of appeals 

with ‘exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 9 of 20 Pg ID 1675 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 9 of 20
10

determine the validity’ of FCC orders.” Murphy v. DCI Biologicals Orlando, 

LLC, 797 F.3d 1302, 1306-1307 (11th Cir. 2015) (quoting 28 U.S.C. § 2342(1)). 

“District courts may not determine the validity of FCC orders, including by 

refusing to enforce an FCC interpretation . . . .” Id. Accordingly, “a district court 

must afford FCC final orders deference and may only consider whether the alleged 

action violates FCC rules or regulations.” Id. 4

 When the TCPA was passed, telemarketers used dialing equipment to create 

and dial arbitrary 10-digit phone numbers. Smith v. Markone Fin., LLC, No. 3:13-

CV-933-J-32MCR, 2015 WL 419005, at *2 (M.D. Fla. Feb. 2, 2015) (citing 18 

FCC Rcd. 14014 ¶ 132 (July 3, 2003) (“2003 FCC Order”)). Around the turn of 

the century, however, it became more cost effective for the teleservices industry to 

use lists of numbers. Id. The important factor, the capacity to dial numbers 

without human intervention, remained the same. Id. In 2003, in the face of these 

technological advances, the FCC considered the application of the TCPA’s 

definition of an ATDS to what are called “predictive dialers.” A predictive dialer 

is “hardware, when paired with certain software, [which] has the capacity to store 

 

4

 The Court notes the TCPA’s prohibition on automated dialing applies to 

voice calls and text messages. See 27 FCC Rcd. 15391 ¶ 2 (Nov. 26, 2012); see 

also Legg v. Voice Media Grp., Inc., 20 F. Supp. 1370, 1373 (S.D. Fla. 2014) 

(citing Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 269 n.2 (3d Cir. 2013)). 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 10 of 20 Pg ID 1676 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 10 of 20
11

or produce numbers and dial those numbers at random, in sequential order, or from 

a database of numbers.” 18 FCC Rcd. 14014 ¶ 131 (July 3, 2003). The FCC noted 

that “[t]he basic function of such equipment . . . [is] the capacity to dial numbers 

without human intervention.” Id. ¶ 132 (emphasis omitted). It concluded that 

“predictive dialers . . . fall[] within the meaning and statutory definition of 

‘automatic telephone dialing equipment’ and the intent of Congress.” Id. ¶ 133. 

 In 2008, the FCC affirmed “that a predictive dialer constitutes an automatic 

telephone dialing system and is subject to the TCPA’s restrictions on the use of 

autodialers.” 23 FCC Rcd. 559 ¶ 12 (Jan. 4, 2008) (“2008 FCC Order”). In 2012, 

the FCC emphasized that the definition of autodialer “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.” 27 FCC Rcd. 15391 ¶ 2 n.5 (Nov. 29, 2012) 

(emphasis in original). 

 On June 18, 2015, the FCC issued a declaratory ruling and order reiterating 

“that the basic functions of an autodialer are to dial numbers without human 

intervention . . .” 30 FCC Rcd. 7961 ¶ 17 (July 10, 2015) (“2015 FCC Order”). 

The FCC clarified: “How the human intervention element applies to a particular 

piece of equipment is specific to each individual piece of equipment, based on how 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 11 of 20 Pg ID 1677 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 11 of 20
12

the equipment functions and depends on human intervention, and is therefore a 

case-by-case determination.” Id. The 2015 FCC Order also provides that, “even 

when dialing a fixed set of numbers, equipment may nevertheless meet the 

autodialer definition.” Id. ¶ 12. The 2015 FCC Order includes “Internet-to-phone 

text messaging technology” in the definition of “automatic telephone dialing 

system,” reasoning that, “[s]o long as the initiating device has the requisite 

capacity to meet the statutory definition of an autodialer and send a text 

message . . . the fact that the message is initiated from a phone versus some other 

device is not relevant.” Id. ¶¶ 111 & n.379. 

 “[T]hrough these implementing regulations, the FCC has indicated that the 

definition of ATDS now includes ‘predictive dialers,’ which may dial numbers 

from preprogrammed lists rather than generate numbers randomly or sequentially.” 

Luna v. Shac, LLC, 122 F. Supp. 3d 936, 939 (N.D. Cal. 2015). “Accordingly, the 

fact that [Defendants’ Platform] has the ability to send text messages from 

preprogrammed lists, rather than randomly or sequentially, does not disqualify it as 

an ATDS.” Id. 

 Defendants argue they are entitled to summary judgment because the text 

messages were sent as the result of human intervention, and thus were not sent by 

an autodialer. In support of their argument, they rely primarily on the Northern 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 12 of 20 Pg ID 1678 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 12 of 20
13

District of California’s decision in Luna. In Luna, the court granted summary 

judgment to a defendant that sent text messages using a web-based system very 

similar to the Platform at issue here. In reaching its conclusion, the Luna court, 

after thoroughly reviewing the FCC’s 2003, 2008, and 2015 Orders, noted the FCC 

has “indicated that the defining characteristic of an autodialer is the capacity to dial 

numbers without human intervention.” Id. at 940 (internal quotation marks 

omitted). Turning to the system operated by the defendant, the Luna court 

observed that “human intervention was involved in several stages of the process 

prior to Plaintiff’s receipt of the text message, including transferring the number 

into the CallFire database, drafting the message, determining the timing of the 

message, and clicking ‘send’ on the website to transmit the message to Plaintiff.” 

Id. The court concluded the text messages at issue were sent as a result of human 

intervention, and granted summary judgment in favor of defendant. Id. at 941-42. 

 Here, the same types of human intervention were required to send the text 

messages to Plaintiff. It is undisputed that, to send promotional messages, an 

Opera employee had to: (i) navigate to a website; (ii) log into the Platform; 

(iii) determine the content of the text message; (iv) type the content of the text 

message into the Platform; (iv) determine whether to send the text message 

immediately or to schedule a later date to send the message; (v) either click “send” 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 13 of 20 Pg ID 1679 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 13 of 20
14

to send the message immediately, or take action to select a later date and time to 

send the message by using a drop-down calendar function. (See DSOMF ¶¶ 63-65, 

67, 70, 71-74). Opera also determined the telephone numbers to which text 

messages were sent by an employee choosing a particular list of numbers and 

uploading the list to mGage’s Platform as a CSV file. (Id. ¶¶ 76-78). 

 Plaintiff attempts to distinguish Luna.

5

 Plaintiff first argues the texting 

system in Luna “required an employee to manually type a phone number into the 

website, or manually uploading [sic] (by cutting or pasting those numbers into the 

website), manually designating which phone numbers to which text messages 

would be sent,” whereas here Opera loaded a list of numbers onto the Platform 

and, in addition, customers could sign up to join the list. ([44] at 6). The Luna

court, however, noted that an “existing list of phone numbers” could be 

“upload[ed]” into the website, and that, additionally, “customers could add 

themselves to the platform by sending their own text messages to the system.” 122 

F. Supp. 3d at 937. This description appears to be nearly identical to how Opera 

operated the Platform at issue here. 

 

5

 Plaintiff argues the Court should discount the Luna opinion because it is on 

appeal before the United States Court of Appeals for the Ninth Circuit. On 

November 20, 2015, the appeal was dismissed. 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 14 of 20 Pg ID 1680 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 14 of 20
15

 Plaintiff next argues that the system in Luna sent text messages from the 

website directly to cellular telephones, whereas, here, “Defendants’ texting system 

includes a ‘platform’ that handles the connection between the client (here Opera) 

and cell phone carriers like MetroPCS, not end cell phone users.” ([44] at 7). 

Plaintiff offers a strained reading of Luna. The Luna court merely stated that, as a 

result of the process initiated by the defendant—that is, logging onto the system, 

typing in the message, and clicking send or scheduling when the message should 

be sent—“an allegedly unwanted text message was sent to Plaintiff.” 122 F. Supp. 

3d at 937. This statement does not support Plaintiff’s position that the system sent 

the message directly from the website to cellular telephones. Even if the system 

directly sent text messages, the other factual similarities between the human 

intervention required to use the Platform and that required to use the Luna system 

persuade the Court that the reasoning of the Luna court applies here.6

 

 Plaintiff next argues that, if the Court were to adopt the Luna court’s 

reasoning, it would ignore the 2015 FCC Order. First, the 2015 FCC Order “is not 

 

6

 As Plaintiff admits, the factual record in Luna “is not sufficiently detailed.” 

([44] at 7). Plaintiff nevertheless attempts to use the lack of detail in the Luna

opinion to manufacture a difference between the Luna system and the Platform 

here. 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 15 of 20 Pg ID 1681 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 15 of 20
16

dispositive of the present case because the FCC issued its ruling after the [text 

messages] in question . . . .” Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 

1246 (11th Cir. 2014). Second, the Luna court thoroughly discussed the 2015 FCC 

Order, and concluded the level of human intervention required to send text 

messages precluded liability. See 122 F. Supp. 3d at 939-40. Third, Plaintiff 

ignores that the 2015 FCC Order underscored that a defining characteristic of an 

autodialer is the ability to dial numbers without human intervention. See 30 FCC 

Rcd. 7961 ¶ 17. As the court in Derby v. AOL, Inc. observed, the 2015 FCC Order 

“does not suggest that a system that never operates without human intervention 

constitutes an ATDS under the statute. To the contrary, the 2015 [FCC] Order 

reiterates that the basic functions of an autodialer are to dial numbers without 

human intervention and to dial thousands of numbers in a short period of time.” 

No. 5:15-CV-00452-RMW, 2015 WL 5316403, at *4 (N.D. Cal. Sept. 11, 2015), 

appeal dismissed (Mar. 18, 2016) (internal quotation marks omitted, emphasis in 

original). The importance of the human intervention element is supported by the 

decisions of other courts, including courts in our Circuit, that have acknowledged 

that the FCC’s orders require that, “[t]o determine whether a dialer is a predictive 

dialing system, and therefore an ATDS, the primary consideration is whether 

human intervention is required at the point in time at which the number is dialed.” 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 16 of 20 Pg ID 1682 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 16 of 20
17

Strauss v. CBE Grp., Inc., ––– F. Supp. 3d –––, 2016 WL 1273913 (S.D. Fla. Mar. 

28, 2016) (internal quotations and ellipsis omitted); see also Legg v. Voice Media 

Grp., Inc., 20 F. Supp. 3d 1370, 1373 (S.D. Fla. 2014) (explaining that “defining 

characteristic” of ATDS is “capacity to dial numbers without human 

intervention”). Here, direct human intervention is required to send each text 

message immediately or to select the time and date when, in the future, the text 

message will be sent. 

 Plaintiff also cites a number of cases she contends the Court should apply 

here in place of Luna. The Court first notes that the cases on which Plaintiff relies 

were expressly rejected by the Luna court because the facts of those cases were 

distinguishable. The Court agrees with the Luna court’s analysis. For instance, 

Plaintiff relies on Sterk v. Path, Inc., 46 F. Supp. 3d 813 (N.D. Ill. 2014). In Sterk, 

however, it was “undisputed” that the automated dialing system “made calls from 

the list without human intervention.” 46 F. Supp. 3d at 819-20. That is not the 

case here. Similarly, the system in Griffith v. Consumer Portfolio Serv., Inc., 838 

F. Supp. 2d 723 (N.D. Ill. 2011) used predictive dialing software that reviewed 

accounts that satisfied certain pre-selected criteria, copied the telephone numbers 

associated with those accounts into a new file, and independently dialed the 

numbers in the file. See id. at 724. In Moore v. Dish Network L.L.C., 57 F. Supp. 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 17 of 20 Pg ID 1683 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 17 of 20
18

3d 639 (N.D.W.V. 2014), the lists of numbers were transferred to the dialer 

without human intervention, and the dialer automatically dialed numbers from 

those lists. Id. at 655. The court in Davis v. Diversified Consultants, Inc., 36 F. 

Supp. 3d 217 (D. Mass. 2014) did not consider the human intervention element of 

the ATDS analysis. In each of these cases—unlike here—the system itself dialed 

numbers. Cf. In re Collecto, Inc., No. 14-MD-02513-RGS, 2016 WL 552459, at 

*4 n.9 (D. Mass. Feb. 10, 2016) (“In the cases Collecto cites in support of its 

argument [that the system is not an ATDS], human intervention was required to 

dial the target telephones, not simply to activate the process (by assembling a list 

of numbers and uploading them to the dialer).” (emphasis in original) (citing Luna, 

122 F. Supp. 3d 936; Gragg v. Orange Cab Co., Inc., 995 F. Supp. 2d 1189 (W.D. 

Wash. 2014) (“[T]he dispatcher must have pressed ‘enter’ to 

transmit . . . information to both the TaxiMagic program and the nearest available 

driver.”))). 

 The Court finds the Luna court’s reasoning sound and consistent with the 

reasoning of other courts’ findings that human intervention discredits that a 

communication system is an ATDS. The Court finds that, in this case, the 

uncontested evidence shows human intervention was required to send each text 

message. “In sum, [Plaintiff’s] claims fail as a matter of law because [s]he failed 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 18 of 20 Pg ID 1684 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 18 of 20
19

to establish a genuine issue for trial with respect to whether the [texts] were [sent] 

using an ATDS, a necessary element of [her] claims.” Gaza v. LTD Fin. Servs., 

L.P., No. 8:14-CV-1012-T-30JSS, 2015 WL 5009741, at *4 (M.D. Fla. Aug. 24, 

2015). Defendants’ Motion is granted.7, 8 

 

7

 In reaching this conclusion, the Court considered the arguments set out in 

Plaintiff’s Motion. The Court did not, however, consider the facts set forth in 

Plaintiff’s statement of material facts. Under the local rules of this Court, 

Plaintiff’s statement of material facts was required to be filed separately. L.R. 

56.1(B)(1), NDGa. “[B]ecause [Plaintiff] included her facts only in her [] brief, 

but not in a separate document, the Court is not permitted to consider such fact[s] 

in resolving any pending motion for summary judgment.” Boone v. City of 

McDonough, No. 1:12-CV-1036-WSD, 2013 WL 4670480, at *5 (N.D. Ga. Aug. 

29, 2013), aff’d, 571 F. App'x 746 (11th Cir. 2014) (internal quotation marks 

omitted); see also Robinson v. Fulton Cty., No. CIVA 105CV-2250-RWS, 2008 

WL 78711, at *6 (N.D. Ga. Jan. 4, 2008); L.R. 56.1(B)(1), NDGa. (“The court will 

not consider any fact . . . set out only in the brief . . . .”). Even if the Court 

considered the facts Plaintiff included in her statement of material facts, the facts 

do not change the Court’s analysis or its conclusion. The facts upon which the 

Court bases its conclusion are those facts relevant to the human intervention 

analysis. Plaintiff does not dispute the core facts of this analysis: to send a text 

message, Opera employees navigated to the Platform’s website, logged in, typed in 

the text of the message to be sent, either clicked “send” to send the message 

immediately, or scheduled a future date and time for the message to be sent using 

the Platform’s drop-down calendar function. (See DSOMF ¶¶ 64-74; PRDSOMF 

¶¶ 64-74). Accordingly, Plaintiff’s Motion is denied, and Plaintiff’s Motion for 

Leave is denied as moot. 

8

 Because the Court grants summary judgment to Defendants, the Court is not 

required to address Defendants’ arguments they are entitled to partial summary 

judgment on Plaintiff’s claim for treble damages. The Court also denies as moot 

mGage’s Motion seeking partial summary judgment, and denies as moot Plaintiff’s 

Motion to Strike mGage’s Motion. 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 19 of 20 Pg ID 1685 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 19 of 20
20

III. CONCLUSION 

 For the foregoing reasons, 

 IT IS HEREBY ORDERED that Plaintiff Colette Jenkins’s Motion for 

Summary Judgment [34] is DENIED. 

 IT IS FURTHER ORDERED that mGage’s Motion for Partial Summary 

Judgment [36] is DENIED AS MOOT. 

IT IS FURTHER ORDERED that Defendants mGage, LLC and LL 

Atlanta, LLC d/b/a Opera Nightclub’s Motion for Summary Judgment [37] is 

GRANTED. 

 IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike mGage’s 

Motion [47] is DENIED AS MOOT. 

IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File 

Plaintiff’s Statement of Facts (Out-of-Time) [54] is DENIED AS MOOT. 

IT IS FURTHER ORDERED that this action is DISMISSED. 

SO ORDERED this 12th day of August, 2016. 

2:15-cv-11717-SJM-MKM Doc # 56-1 Filed 09/06/16 Pg 20 of 20 Pg ID 1686 Case 1:14-cv-02791-WSD Document 65 Filed 08/12/16 Page 20 of 20