UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JOD SELOU, 

 

Plaintiff, Civil Case No. 15-10927 

 Honorable Linda V. Parker 

v. 

 

INTEGRITY SOLUTION SERVICES 

INC., INTEGRITY ACQUISITION, LLC, 

CENTRAL CREDIT SERVICES, INC., RADIUS 

GLOBAL SOLUTIONS, INC., NAVIENT 

SOLUTIONS, INC., and LIVEVOX, INC. 

 

Defendants. 

________________________________/ 

OPINION AND ORDER GRANTING DEFENDANT LIVEVOX’S MOTION 

TO DISMISS THE SECOND AMENDED COMPLAINT AND DISMISSING 

LIVEVOX AS A PARTY TO THIS ACTION

 Plaintiff filed this lawsuit in a Michigan state court against Defendant 

Integrity Solution Services, Inc. (“Integrity”) alleging violations of the federal 

Telephone Consumer Protection Act (“TCPA”) and Fair Debt Collection Practices 

Act (“FCPA”) and Michigan’s Occupational Code and Regulation of Collection 

Practices Act. Integrity removed the action to federal court based on federal 

question jurisdiction on March 12, 2015. Plaintiff thereafter filed an Amended 

Complaint, adding five additional entities as defendants. (ECF No. 8.) In the 

Amended Complaint, Plaintiff asserts the following claims against those 

defendants: (I) negligent violation of the TCPA; (II) willful violation of the TCPA; 

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(III) violations of the FDCPA; (IV) violations of the Michigan Occupational Code 

(“MOC”); and (V) violations of the Michigan Collection Practices Act (“MCPA”). 

Defendant LiveVox, Inc. (“LiveVox”) filed a motion to dismiss Plaintiff’s 

Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on 

December 30, 2015. (ECF No. 50.) Plaintiff filed a response to the motion on 

January 19, 2016. (ECF No. 52.) LiveVox filed a reply brief on February 2, 2016. 

(ECF No. 55.) Finding the facts and legal arguments sufficiently developed in the 

parties’ pleadings, the Court is dispensing with oral argument with respect to 

LiveVox’s motion pursuant to Eastern District of Michigan Local Rule 7.1(f). For 

the reasons that follow, the Court now grants the motion. 

I. Rule 12(b)(6) Standard

 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of 

the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 

(6th Cir. 1996). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must 

contain a “short and plain statement of the claim showing that the pleader is 

entitled to relief.” To survive a motion to dismiss, a complaint need not contain 

“detailed factual allegations,” but it must contain more than “labels and 

conclusions” or “a formulaic recitation of the elements of a cause of action . . ..” 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not 

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“suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’ ” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). 

As the Supreme Court provided in Iqbal and Twombly, “[t]o survive a 

motion to dismiss, a complaint must contain sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 

550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The 

plausibility standard “does not impose a probability requirement at the pleading 

stage; it simply calls for enough facts to raise a reasonable expectation that 

discovery will reveal evidence of illegal [conduct].” Twombly, 550 U.S. at 556. 

In deciding whether the plaintiff has set forth a “plausible” claim, the court 

must accept the factual allegations in the complaint as true. Erickson v. Pardus, 

551 U.S. 89, 94 (2007). This presumption, however, is not applicable to legal 

conclusions. Iqbal, 556 U.S. at 668. Therefore, “[t]hreadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do not 

suffice.” Id. (citing Twombly, 550 U.S. at 555). 

II. Relevant Factual and Procedural Background

 According to Plaintiff’s Amended Complaint, all of the named defendants, 

except Defendant Navient Solutions, Inc. (“Navient”) and LiveVox, are entities 

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related to Integrity.1

 (Am. Compl. ¶¶ 16-28; 61-65.) Plaintiff alleges that the 

Integrity-related defendants (hereafter collectively “Integrity Defendants”) are 

“debt collector[s],” “collection agenc[ies],” or “regulated person[s]” as those terms 

are defined in the FDCPA, the Michigan Occupational Code, and/or the MCPA. 

(Id. ¶¶ 16, 24-25, 30-31, 40-41.) According to Plaintiff, Integrity and CCS are 

defined as “any person” prohibited from auto-dialing cellular phone devices under 

the TCPA, 47 U.S.C. § 227(b)(1)(iii). (Id. ¶¶ 17, 42.) 

 Plaintiff claims that CCS uses LiveVox’s automated dialing software 

systems and Interactive Voice Response (“IVR”) systems in CCS’ debt collection 

efforts. (Id. ¶¶ 45-48, 77.) An IVR system “use[s] pre-recorded voices to guide 

people through various menus in a telephone communication system.” (Id. ¶ 47.) 

Plaintiff alleges that “[t]he LiveVox system is an ATDS [Automated Telephone 

Dialing System] under the TCPA.” (Id. ¶ 49.) 

 In late 2011 or early 2012, Integrity began collection activity with respect to 

Plaintiff’s defaulted Sallie Mae student loan by calling Plaintiff’s cellular phone 

using an ATDS. (Id. ¶¶ 69, 71.) “The defaulted debt [had been] assigned, 

transferred or sold to Navient” which services and collects student loan debts. (Id. 

 

1 Specifically, Plaintiff indicates that Defendant Radius Global Solutions, LLC 

(“Radius”) is the successor of Integrity. (Am. Compl. ¶¶ 20, 61-62.) Defendant 

Central Credit Services, Inc. is a subsidiary of Radius. (Id.) Defendant Integrity 

Acquisitions LLC (“IA”) is a Florida limited liability company located in Florida. 

(Id. ¶ 22.) IA’s sole member is Radius. (Id. ¶ 26.) 

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¶¶ 53, 70.) While the calls temporarily ceased when Plaintiff agreed to make 

payments toward the debt, she claims they resumed in Spring 2014 after she 

stopped making those payments. (Id. ¶ 73.) Plaintiff claims that CSS and Integrity 

also called her place of employment and her parents’ telephones. (Id. ¶¶ 78-79.) 

Integrity continued making the debt collection calls to Plaintiff’s cellular phone 

numbers until July 2014, when CCS took over the collection activity. (Id. ¶¶ 73-

75.) Plaintiff claims that she directed Integrity and CCS verbally and in writing to 

stop calling, but the calls did not cease. (Id. ¶¶ 79-81.) 

III. Applicable Law and Analysis

 LiveVox seeks dismissal of Plaintiff’s claims against it, arguing that 

LiveVox only provides technological services through which its customers can 

make phone calls and thus functions as a common carrier with no liability under 

the TCPA or related statutes. (ECF No. 50 at Pg ID 643.) “Even if LiveVox is not 

considered akin to a common carrier,” it argues that Integrity or CCS made the 

calls at issue, not LiveVox. (Id.) Thus, LiveVox contends that Plaintiff’s claims 

fail as a matter of law. 

 Plaintiff argues in response to LiveVox’s motion that she “added LiveVox as 

a party directly liable for enabling the Defendants’ collection calls to plaintiff 

through its automated telephone dialing system hardware and software platform.” 

(ECF No. 52 at Pg ID 688.) Plaintiff spends a considerable portion of her response 

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brief citing and/or discussing several cases holding or reflecting that LiveVox’s 

system is an ATDS. (See id. at 689-692.) She then maintains that “LiveVox’s 

technology made the calls” (id. at 693), but appears to alternatively argue that 

LiveVox could be held vicariously liable for the calls made by Integrity and CCS 

by providing the technology that enables those entities to engage in their 

automated dialing collection campaigns. (Id. at 688-89, 693.) Plaintiff fails to 

address LiveVox’s liability under the FDCPA, MOC, or MCPA. 

 As an initial matter, Plaintiff’s failure to address any claim but her TCPA 

claim in response to LiveVox’s motion to dismiss is cause for dismissing those 

claims. Humphrey v. U.S. Attorney General’s Office, 279 F. App’x 328, 331 (6th 

Cir. 2008) (finding that a plaintiff’s failure to oppose arguments raised in the 

defendants’ motion to dismiss is grounds for the district court to assume that 

opposition to the motion is waived). Nevertheless, even if Plaintiff is not deemed 

to have abandoned her FDCPA and state law claims, the Court finds that she fails 

to state a claim against LiveVox upon which relief may be granted with respect to 

those claims. 

Liability under the FDCPA is limited to debt collectors. Waddington v. 

Credit Acceptance Corp., 76 F.3d 103, 104 (6th Cir. 1996). Plaintiff does not 

allege that LiveVox is a “debt collector” and LiveVox does not qualify as a “debt 

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collector” as the statute defines that term.2

 See 15 U.S.C. § 1692a(6). The Sixth 

Circuit has held that a company that is not a debt collector cannot be held 

vicariously liable under the FDCPA. Waddington, 76 F.3d at 108. 

 Like the FDCPA, the MCPA and the MOC target the conduct of debt 

collectors. See Newman v. Trott & Trott, P.C., 889 F. Supp. 2d 948, 965-66 (E.D. 

Mich. 2012) (citing Mich. Comp. Laws §§ 339.901(b), 445.251(g)); see also 

Gamby v. Equifax Info. Servs., LLC, 462 F. App’x 552, 554 (6th Cir. 2012) 

(internal quotation marks, citations, and brackets omitted) (“Generally speaking, 

the [MCPA] prohibits abusive collection efforts . . ..”). Plaintiff’s MCPA and 

MOC claims simply duplicate her claims under the FDCPA. In that case, the 

Michigan courts have held that the plaintiff’s state law claims need not be 

addressed separately and fail for the same reason as the plaintiff’s FDCPA claims. 

See Scheuer v. Jefferson Capital Sys., LLC, 43 F. Supp. 3d 772 (E.D. Mich. 2014) 

(citing cases). 

 

2 Under the FDCPA, a “debt collector” is defined as: 

any person who uses any instrumentality of interstate commerce or the 

mails in any business the principal purpose of which is the collection 

of any debts, or who regularly collects or attempts to collect, directly 

or indirectly, debts owed or due or asserted to be owed or due another 

... the term includes any creditor who, in the process of collecting his 

own debts, uses any name other than his own which would indicate 

that a third person is collecting or attempting to collect such debts. 

15 U.S.C. § 1692a(6). 

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 Turning to Plaintiff’s TCPA claim, the statute makes it unlawful “to make 

any call (other than a call made for emergency purposes or made with prior express 

consent of the called party) using an automatic telephone dialing system or an 

artificial or prerecorded voice . . . to any telephone number assigned to a . . . 

cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA’s legislative 

history reflects that Congress intended the statute to “apply to the persons initiating 

the telephone call or sending the message and . . . not the common carrier or other 

entity that transmits the call or message and that is not the originator or controller 

of the content of the call or message.” S. Rep. No. 102-178 (1991), 1991 WL 

211220, at *9 (emphasis added). The statute defines an ATDS as “equipment that 

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.” 47 U.S.C. 

§ 227(a)(1). In her Amended Complaint and in response to LiveVox’s motion to 

dismiss, Plaintiff alleges that LiveVox’s technology, which Integrity and CSS used 

to call Plaintiff, is an ATDS. As previously indicated, Plaintiff cites several cases 

supporting this allegation, including cases directly addressing LiveVox’s 

technology. 

Nevertheless, whether LiveVox’s technology is an ATDS is not relevant to 

the arguments raised by LiveVox in support of its motion to dismiss. In its motion, 

LiveVox disputes neither that allegation nor Plaintiff’s claim that CSS and 

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Integrity utilized LiveVox’s technology when making their calls.3

 The relevant 

issue is whether that utilization can render LiveVox liable under the TCPA. 

Notably, even in the cases Plaintiff cites where LiveVox’s technology was used, 

LiveVox was not named as a defendant and thus its liability was not addressed. 

See Davis v. Diversified Consultants, Inc., 36 F. Supp. 3d 217 (D. Mass. 2014) 

(action against debt collection agency which used LiveVox’s systems); Lardner v. 

Diversified Consultants, Inc., 17 F. Supp. 3d 1215 (S.D. Fla. 2014) (action against 

debt collector using LiveVox’s dialing system); Echevvaria v. Diversified 

Consultants, Inc., No. 13 CIV 4980, 2014 U.S. Dist. LEXIS 32136 (S.D.N.Y. Feb. 

28, 2014) (action against debt collection agency using LiveVox system to make 

collection calls to debtors); Mem. Op. & Order, Haire v. Sprint Commc’ns Co., 

No. 2:13-cv-00701 (N.D. Ala. Mar. 31, 2014) (action against creditor and debt 

collection agency which used LiveVox systems), ECF No. 64. Nor were the 

suppliers of the calling systems used in the other cases Plaintiff cites named as 

defendants. See Meyer v. Portfolio Recovery Assocs., 707 F.3d 1036 (9th Cir. 

2012) (action against debt collector, only); Swope v. Credit Mgmt., LP, No. 

 

3 Accordingly, it is irrelevant to this Court’s analysis of LiveVox’s motion that 

another judge in this District, in an unrelated case against LiveVox and other 

defendants, struck as non-responsive LiveVox’s answer addressing whether its 

technology is covered by the TCPA and whether the defendant making the calls to 

the plaintiff used LiveVox’s technology. (See ECF No. 52 at 696-97, citing 

Longordo v. Diversified Consultants, Inc., No. 15-cv-12991 (E.D. Mich. filed Aug. 

24, 2015).) 

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12CV832, 2013 WL 607830 (E.D. Mo. Feb. 19, 2013) (same); Vance v. Bureau of 

Collection Recovery LLC, No. 10-cv-06324, 2011 WL 881550 (N.D. Ill. Mar. 11, 

2011) (same). 

Plaintiff asserts in her response brief that LiveVox is “directly liable for 

enabling the Defendants’ collection calls to plaintiff” and that “LiveVox’s 

technology made the calls.” (ECF No. 52 at Pg ID 688, 693, emphasis added.) 

What Plaintiff is claiming- as her Amended Complaint repeatedly makes clear˗ is 

that CSS and Integrity made the calls, using LiveVox’s technology. (Am. Compl. 

¶¶ 43, 48, 71-75, 78-87.) Case law and the rulings of the Federal Communications 

Commission (“FCC”) demonstrate that, under the facts alleged, LiveVox is not 

considered the maker or initiator of the calls under the TCPA.4

 See Davis, 36 F. 

Supp. 3d at 224 (rejecting the defendant debt collector’s argument that LiveVoxwhose system it used to call the plaintiff- was the maker of the violating calls); In 

re Rules & Regulations Implementing the Telephone Consumer Protection Act of 

1991, 30 FCC Rcd. 7961, 7978-7984, 2015 WL 4387780, **10-14 (July 10, 2015) 

(indicating that entities that merely make available technology by which users may 

 

4 “ ‘The FCC has interpretive authority over the TCPA,’ Charvat v. EchoStar 

Satellite, LLC, 630 F.3d 459, 467 (6th Cir. 2010), and its ‘rulings shape the law in 

this area.’ Hill v. Homeward Residential, Inc., 799 F.3d 544, 551 (6th Cir. 2015).” 

Baisden v. Credit Adjustments, Inc., No. 15-3411, -- F.3d --, Slip O. at 5 (6th Cir. 

Feb. 12, 2016). 

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make phone calls are not the makers of those calls under the TCPA and thus do not 

have liability under the statute). 

Plaintiff appears to be alternatively arguing in her response brief that 

LiveVox can be held vicariously liable for the alleged TCPA violations. (See ECF 

No. 52 at 693-94.) In fact, in her Amended Complaint, Plaintiff summarily alleges 

that all defendants are vicariously liable for the violations of the statute. (Am. 

Compl. ¶¶ 117-122.) The FCC has issued a declaratory ruling advising that a 

company may be vicariously liable for calls sent “on its behalf.” 5 In re Dish 

Network, LLC, 28 FCC Rcd. 6574, 2013 WL 1934349 (May 9, 2013). 

Nevertheless, even if vicariously liability could attach to the entity whose 

involvement is limited to providing the ATDS, Plaintiff’s allegations are 

insufficient to attach vicarious liability to LiveVox. 

In its declaratory ruling in In re Dish Network, LLC, the FCC advised that “a 

seller may be liable for violations by its representatives under a broad range of 

agency principles, including not only formal agency, but also principles of 

apparent authority and ratification.” 28 FCC Rcd. 6574, 6584, 6586, 2013 WL 

1934349, at *9, 11 (“We find that vicarious seller liability under federal common 

 

5 The FCC’s ruling focused on the fact that the calls, although not initiated by the 

entity, were made “on behalf of that . . . entity.” See e.g., In re Dish Network, LLC, 

28 FCC Rcd. 6574 at 6584, 2013 WL 1934349, at *9-10 (emphasis in original). 

As such, the agency did not specifically address whether vicarious liability could 

be a basis for holding a person or entity liable that neither made the call nor on 

whose behalf the call was made. 

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law agency principles is also available for violations of section 227(b).”). The 

FCC provided in further detail: 

 The classical definition of “agency” contemplates “the fiduciary 

relationship that arises when one person (a ‘principal’) manifests 

assent to another person (an ‘agent’) that the agent shall act on the 

principal’s behalf and subject to the principal’s control.” Potential 

liability under general agency-related principles extends beyond 

classical agency, however. A principal may be liable in circumstances 

where a third party has apparent (if not actual) authority. Such 

“[a]pparent authority holds a principal accountable for the results of 

third-party beliefs about an actor’s authority to act as an agent when 

the belief is reasonable and is traceable to a manifestation of the 

principal.” Other principles of agency law may support liability in 

particular cases. For example, a seller may be liable for the acts of 

another under traditional agency principles if it ratifies those acts by 

knowingly accepting their benefits. Such ratification may occur 

“through conduct justifiable only on the assumption that the person 

consents to be bound by the act’s legal consequences.” 

Id. at 6586-87, 2013 WL 1934349, at *11 (footnotes omitted). The mere 

possibility that a defendant may be vicariously liable, however, is not sufficient to 

state a claim for relief. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. 

Plaintiff must “plead[] factual content that allows the court to draw the 

reasonable inference that [LiveVox] is [vicariously] liable for the misconduct 

alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556.) While the 

Court must accept Plaintiff’s factual allegations in her Amended Complaint as true, 

Erickson, 551 U.S. at 94, this presumption does not apply to Plaintiff’s legal 

conclusion that LiveVox is vicariously liable for CSS’ and Integrity’s alleged 

TCPA violations. Plaintiff’s Amended Complaint is devoid of facts supporting 

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this legal conclusion. The facts alleged in no way suggest that LiveVox 

manifested assent to CSS or Integrity for CSS or Integrity to act on LiveVox’s 

behalf and subject to LiveVox’s control. Nor do the facts support the conclusion 

that CSS or Integrity had actual or apparent authority to act on LiveVox’s behalf. 

The facts also do not indicate that LiveVox ratified the actions of CSS or Integrity 

or accepted the benefits of their actions. Plaintiff says nothing in her response 

brief to lead this Court to believe that she could cure this defect by amending her 

pleading. 6

For these reasons, the Court also concludes that Plaintiff fails to state a 

viable TCPA claim against LiveVox. 

Accordingly, 

 

6

 LiveVox argues in its motion that it is not liable under the TCPA because it is a 

“common carrier.” When considering the liability of a common carrier for TCPA 

violations, the FCC has advised that there is no liability “absent a ‘high degree of 

involvement or actual notice of an illegal use and failure to take steps to prevent 

such transmissions.’ ” Rinky Dink, Inc. v. Elec. Merchant Sys., No. C13-1347, 

2015 WL 778065, at *4 (W.D. Wash. Feb. 24, 2015) (quoting In the Matter of 

Rules and Regulations Implementing the TCPA of 1991, 7 FCC Rcd. 8752, 8779-

80 (1992)); see also In the Matter of Enforcement of Prohibitions Against the Use 

of Common Carriers for the Transmission of Obscene Materials, 2 FCC Rcd. 

2819, 2820 (1987) (relating to a different provision of the TCPA) (“[C]ommon 

carriers will not generally be liable for illegal transmissions unless it can be shown 

that they knowingly were involved in transmitting the unlawful material.”). “A 

‘high degree of involvement’ exists where the broadcaster (1) controls the recipient 

lists; and/or (2) controls the content of the transmissions.’ ” Rinky Dink, Inc., 2015 

WL 778065, at *7 (quoting Rules and Regulations Implementing the TCPA of 

1991, 68 F.R. 44144-01, 44169 (2003)). Plaintiff’s allegations do not support a 

“high degree of involvement” by LiveVox or LiveVox’s actual knowledge of CSS’ 

or Integrity’s alleged unlawful activity. 

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IT IS ORDERED, that LiveVox’s Motion to Dismiss the Second Amended 

Complaint is GRANTED and Plaintiff’s claims against LiveVox are DISMISSED 

WITH PREJUDICE. LiveVox is dismissed as a party to this action. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: February 16, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, February 16, 2016, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

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