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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAKISHA T. SMITH,

Plaintiff,

Case No.: 15-cv-11717

Vs. Hon. Stephen J. Murphy, III

Hon. Magistrate Mona K. Majzoub

STELLAR RECOVERY, INC. and

COMCAST CORPORATION, and

COMCAST OF DETROIT, LLC,

Defendants.

_________________________________________________________________

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO STRIKE

Plaintiff, Lakisha Smith, respectfully submits the following response to 

Defendant’s Motion to Strike [DE 67] Plaintiff’s Reply to Defendant’s Response to 

Plaintiff’s Notice of Supplemental Authority [DE 62].

I. Defendant’s Motion to Strike

Throughout this litigation, Defendant has attempted to conceal the various 

automated processes involved in its LiveVox Human Call Initiator (“LiveVox 

HCI”) telephone dialing system. Defendant has done this in each of its filings 

submitted in connection with the cross-motions for summary judgment, it did so in 

response to Plaintiff’s Notice of Supplemental Authority, and it has once again 

done so in its motion to strike.

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In its Motion to Strike, Defendant highlights that its Response to Plaintiff’s 

Notice of Supplemental Authority was only two pages, as if that somehow 

demonstrates that Plaintiff should not have been permitted to reply to that pleading. 

The reason Defendant’s response was only two pages is that Defendant provided 

an incomplete description of the LiveVox HCI dialing system in an attempt to 

distinguish that dialer from the Aspect Dialer involved in Espejo v. Santander 

Consumer USA, Inc., No. 11-cv-8987 (N.D. Ill. Oct. 14, 2016) [DE 62-1]. In 

contrast, Plaintiff meticulously detailed each automated component and phase of 

Defendant’s dialing system, which understandably required more pages.

Defendant keeps arguing that Plaintiff has “blatantly misrepresented” the 

deposition testimony of Kevin Stark, yet each description of how Defendant’s 

LiveVox HCI dialing system works is supported by a specific page citation in Mr. 

Stark’s deposition transcript. Mr. Stark’s deposition testimony makes clear that 

Defendant’s LiveVox HCI dialing system (1) utilizes an automated call distributor, 

with predictive functionality, to determine when an agent is available to take a call, 

and (2) an automated media server, which places calls without a live person being 

on the line and instead relies on an automated voice detection application to 

determine whether the call is answered.1 The fact that LiveVox has crowbarred a 

 

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In 2008, the FCC issued a Declaratory Ruling reaffirming that "a predictive dialer constitutes an 

automatic telephone dialing system and is subject to the TCPA's restrictions on the use of autodialers."

In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling, 23 F.C.C. Rcd.

559, 566 ¶ 12, 2008 WL 65485 (F.C.C. Jan. 4, 2008) ("2008 Declaratory Ruling")

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meaningless clicker agent into its automated dialing system is insufficient to avoid 

the restrictions of the Telephone Consumer Protection Act (“TCPA”). This is the 

point of the Espejo decision and is why Plaintiff has offered additional details 

from Kevin Stark’s deposition testimony.

The deposition testimony of Kevin Stark is devastating to Defendant’s

argument that the LiveVox HCI dialing system is not covered by the TCPA. 

Defendant realizes this, which is why Defendant wants to prevent the Court from 

considering the most thorough and accurate analyses of that testimony.

In the event this Court’s ruling on the cross-motions for summary judgment 

is appealed, Plaintiff will be able to offer the exact same arguments and analyses of 

Mr. Stark’s testimony that have been offered in Plaintiff’s Reply to Defendant’s 

Response to Plaintiff’s Notice of Supplemental Authority. For that reason, this

permitted to consider those arguments and analyses in rendering a decision on the 

cross-motions for summary judgment.

II. CONCLUSION

WHEREFORE, Plaintiff Latisha Smith hereby requests that this Court deny 

Defendant’s motion to strike [DE 67].

Respectfully submitted,

/s/ Stephen A. Thomas

December 2, 2016 STEPHEN A. THOMAS P43260

Attorney for Plaintiff

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645 Griswold St., Suite 1360

Detroit, Michigan 48226

313-965-2265

sthomas@313965Bank.com

CERTIFICATE OF SERVICE

I, Stephen A. Thomas, hereby state that on December 2, 2016, I filed the 

foregoing document using the court's CM/ECF System, and all counsel of record 

will receive the same.

/s/ Stephen A. Thomas

Attorney for Plaintiff

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