UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAKISHA SMITH,

Plaintiff,

v.

STELLAR RECOVERY, INC., et al.,

Defendants.

 /

Case No. 2:15-cv-11717

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO EXTEND 

TIME [74], OVERRULING PLAINTIFF'S OBJECTIONS [72], 

ADOPTING REPORT AND RECOMMENDATION [71], GRANTING 

IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL 

SUMMARY JUDGMENT [38], GRANTING DEFENDANTS' MOTION FOR 

PARTIAL SUMMARY JUDGMENT [44], DENYING PLAINTIFF'S MOTIONS 

TO STRIKE [49, 58], AND DENYING DEFENDANTS' MOTION TO STRIKE [67]

Plaintiff LaKisha Smith brought a claim against Defendants Comcast Corporation,

Comcast of Detroit, LLC, and Stellar Recovery, Inc., alleging violations of the Fair Debt

Collection Practices Act, 15 U.S.C. §§ 1692–1692p, the Telephone Consumer Protection

Act (TCPA), 47 U.S.C. §§ 151–231, and state laws. The Court referred all pretrial matters

to a magistrate judge, and the parties filed cross motions for partial summary judgment.

The magistrate judge submitted a Report recommending the Court grant in part and deny

in part Smith's motion, grant Defendants' motion, and deny both parties' motions to strike.

Smith objected. For the reasons below, the Court will overrule the objections and adopt the

Report. 

BACKGROUND

The Report properly details the events giving rise to Smith's action against the

Defendants. See ECF 71, PgID 1936–40. The Court will adopt that portion of the Report.

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LEGAL STANDARD 

Federal Rule of Civil Procedure 72(b) governs review of a magistrate judge's report.

If the parties "serve and file specific written objections to the proposed findings and

recommendations," then the Court must review the report de novo. Fed. R. Civ. P. 72(b)(2).

A district court need not review portions of a report, however, to which no party has

objected. Thomas v. Arn, 474 U.S. 140, 153 (1985). "The district judge may accept, reject,

or modify the recommended disposition; receive further evidence; or return the matter to

the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).

The Court must grant a motion for summary judgment "if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(a). The moving party must identify specific portions of the

record "which it believes demonstrate the absence of a genuine issue of material fact."

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met their

burden, the non-moving party may not simply rest on the pleadings, but must present

"specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). 

A fact is material if proof of that fact would establish or refute an essential element of

the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984).

A dispute over material facts is genuine "if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). In considering a motion for summary judgment, the Court must view the facts

and draw all reasonable inferences "in the light most favorable to the nonmoving party." 60

Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).

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DISCUSSION

As an initial matter, Defendants argue that Smith filed her objections late and the

Court should overrule them on that basis. Defendants are correct that Smith filed her

objections one day late. See Fed. R. Civ. P. 72(b)(2) (requiring a party to file objections

within 14 days of being served with a Report). After the late filing, however, Smith moved

for an extension of time. ECF 74. The Court will address the objections on the merits due

to the minimal additional time involved and the absence of any prejudice to Defendants.

 Smith objects to the Report's conclusion with four arguments: (1) in Pozo v. Stellar

Recovery Collection Agency, Inc., No. 8:15-cv-929-T-AEP, 2016 WL 7851415 (M.D. Fla.

Sept. 2, 2016), the court did not consider the deposition testimony of two witnesses in

Smith's case, Kevin Stark and Kendra Vallarelli (mistakenly referred to as Racheal Vallarilli

in Smith's brief); (2) the Pozo court did not consider the supplemental authority filed by

Smith (ECF 70); (3) the Human Call Initiator (HCI) system is a predictive dialer and

therefore an automatic telephone dialing system (ATDS); and (4) the HCI system is

composed of several pieces of equipment which, when combined, form an ATDS. See ECF

72. 

At the outset, Smith fails to identify which portions of the Report she believes to be

in error. Instead, she makes a general objection to the Report's recommendation to grant 

partial summary judgment to Defendants. See ECF 72, PgID 1965 n.1. Her argument fails

to satisfy Rule 72(b)(2), which requires that an objecting party "file specific written

objections to the proposed findings and recommendations." "A general objection to the

entirety of the magistrate’s report has the same effects as would a failure to object."

Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Indeed,

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Smith's general objection asks the Court to duplicate the magistrate's role. "This duplication

of time and effort wastes judicial resources rather than saving them, and runs contrary to

the purposes" of referring the matter to the magistrate judge in the first place. Id.

Additionally, the magistrate judge warned Smith that "[a]ny objection must recite

precisely the provision of the Report and Recommendation to which it pertains" and that

"[f]ailure to file specific objections constitutes a waiver of any further right of appeal." ECF

71, PgID 1954. Smith disregarded both the Rules and the magistrate's order. Rather than

overruling her objection outright for lack of specificity, the Court will construe each of

Smith's arguments as an individual objection to determine whether her filing meets the

requirements of Rule 72.

I. The Pozo Objections

Smith argues that the magistrate judge erred in the Report because the Pozo court

did not consider the testimony of two key witnesses: Kevin Stark, the Director of Product

Management for LiveVox, Inc., and Kendra Vallarelli, the Chief Analytics Officer for

Defendant Stellar Recovery. In support, Smith provides 32 numbered excerpts from the

Frady, Stark, and Vallarelli depositions—all of which are identical to excerpts that Smith

had submitted earlier in the case. ECF 70. Apart from reciting the same facts taken from

the depositions, Smith offers nothing to explain how the excerpts undermine the Pozo

decision. Nor does she identify a specific error in the Report.

And Smith's objection is flawed for another reason. The mere fact that the Pozo court

did not review the testimony in the current case does not render its opinion invalid. Courts

rarely have the opportunity to review exact testimony that will be offered in a future case.

Here, the magistrate judge ably applied the legal principles set forth in Pozo to the specific

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facts of this case, including Stark and Vallarelli's testimony. Smith does not allege that the

Report failed to consider Stark and Vallarelli's testimony. And in fact, the Report analyzed

the depositions in detail. See e.g. ECF 71, PgID 1946 ("[The magistrate judge] has

reviewed Mr. Stark’s testimony, and finds the analysis in Pozo still applies in light of the

description of the HCI system Mr. Stark provided."); id. at 1939–40 (analyzing Vallarelli's

description of the HCI system). 

Next, Smith contends that Stellar's settlement renders the Pozo court's summary

judgment ruling invalid. In Pozo, Stellar settled the case immediately after the plaintiff

moved the court to reconsider its order granting summary judgment. But Smith offers no

reasons to explain her conclusion and the Court declines to "put flesh on [the] bones" of

Smith's skeletal argument. McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). The

Pozo opinion carries precedential value based on its sound reasoning and legal analysis,

regardless of whether the parties settled the matter after the opinion issued. Thus Smith's

objections to Pozo fail to identify a specific legal or factual error in the Report that would

mandate a different outcome on review.

II. Predictive Dialer Objection

In her next objection, Smith argues that Stark admitted that the automated call

distributor (ACD) system had "predictive dialer functionality" which makes the ACD system

a "predictive dialer." ECF 72, PgID 1972 (quoting ECF 38-2, PgID 573). And since the FCC

has ruled that "a predictive dialer constitutes an automatic telephone dialing system," Smith

concludes that the ACD used in Stellar's HCI system is an automatic dialer under the

TCPA. ECF 72, PgID 1971 (citing In re Rules & Regulations Implementing the Telephone

Consumer Protection Act of 1991, Declaratory Ruling, 23 F.C.C. Rcd. 559, 566 ¶ 12, 2008

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WL 65485 (F.C.C. Jan. 4, 2008)). Smith argument fails, however, to identify a specific error

in the Report.

And, as the Report explained, the HCI system is characterized by one key factor that

separates it from autodialers: it requires human intervention—the clicker agent—to launch

an outgoing call. ECF 71, PgID 1945; see also ECF 38-2, PgID 567–68 (Stark's testimony

explaining that only when an "agent chooses to launch the call" can the HCI system make

an outgoing call). Since the "basic function" of an autodialer is the capacity to dial phone

numbers "without human intervention," and the HCI system lacks that capacity, the HCI is

not an autodialer. 2015 TCPA Order, 30 F.C.C.R. at 7973 (citation omitted). Based on

persuasive authority from federal courts around the nation, the statutory text, and the

binding regulations of the FCC, the Report correctly concluded that the HCI system is not

an autodialer under the TCPA.

III. Components Objection

Smith contends that the components of the HCI system combined to form an

autodialer. She argues generally that the HCI system cannot function without its

components—a campaign database, an automatic call distributor, and a media server

pool—and that these components have autodialing capacity. Again Smith fails to object to

a specific portion of the Report. 

In any event, the Report addressed and rejected Smith's argument. Stellar's HCI

system lacked the capacity to dial "without human intervention." 2015 TCPA Order, 30

F.C.C.R. at 7973 (citation omitted). The ACD system forwards a number to the clicker

agent, who makes the decision to launch the call by clicking a mouse or pressing an enter

key. ECF 38-2, PgID 568. The HCI system cannot place a call without the clicker agent's

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approval. Id. Smith fails to identify any specific error in the Report's conclusion that would

change the outcome on review.

CONCLUSION

The Court will grant partial summary judgment to Smith on her TCPA claims based

on the Defendants' calls from the Right Party Connect (RPC) dialing system. Two factual

questions related to Smith's damages remain before the Court: (1) whether Stellar "willfully

or knowingly" violated the TCPA by calling Smith using the RPC system, and thus whether

Smith may claim treble damages; and (2) the number of calls Stellar made using the RPC

system between July 18, 2014 and August 12, 2014. The Court will grant partial summary

judgment to the Defendants on Smith's TCPA claims based on calls made from the HCI

system. The Court will deny both parties' motions to strike.

ORDER

WHEREFORE, it is HEREBY ORDERED that Plaintiff's Motion to Extend Time to

File Objections [74] is GRANTED.

IT IS FURTHER ORDERED that Plaintiff's Objections [72] are OVERRULED.

IT IS FURTHER ORDERED that the Report [71] is ADOPTED.

IT IS FURTHER ORDERED that Plaintiff's Motion for Partial Summary Judgment

[38] is GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that Defendants' Motion for Partial Summary

Judgment [44] is GRANTED.

IT IS FURTHER ORDERED that Plaintiff's Motions to Strike [49, 58] are DENIED.

IT IS FURTHER ORDERED that Defendants' Motion to Strike [67] is DENIED.

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 SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: March 13, 2017

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on March 13, 2017, by electronic and/or ordinary mail.

s/David P. Parker 

Case Manager

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