UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

NICHOLAS HOLMES,

Plaintiff, Civil Action No. 15-12228

 Honorable Nancy G. Edmunds

v. Magistrate Judge Elizabeth A. Stafford

 

CAPITAL ONE FINANCIAL

CORPORATION,

 

Defendant. 

_____________________________/

REPORT AND RECOMMENDATION TO GRANT

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [R. 17]

I. INTRODUCTION

Plaintiff Nicholas Holmes sues defendant Capital One Financial 

Corporation (“Capital One”), alleging violations of 47 U.S.C. § 227, the 

Telephone Consumer Protection Act (“TCPA”), and complaining that 

Capital One made unsolicited telephone calls to him.1 [R. 1-3, PgID 13-17]. 

Capital One filed a motion for summary judgment, [R. 17], to which Holmes 

did not timely respond, and the Court denied his belated motion for an 

extension of time to respond. [R. 21]. For the reasons set forth below, the 

Court RECOMMENDS that Capital One’s motion [R. 17] be GRANTED.

 

1 The Honorable Nancy G. Edmunds referred it to the undersigned for all 

pretrial matters pursuant to 28 U.S.C. § 636(b). [R. 1; R. 5].

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II. ANALYSIS

A.

“The Court shall grant 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). See also 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Pittman v. 

Cuyahoga County Dep't of Children & Family Servs., 640 F.3d 716, 723 

(6th Cir. 2011). The party seeking summary judgment bears the initial 

burden of informing the Court of the basis for its motion, and must identify 

particular portions of the record that demonstrate the absence of a genuine 

dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986); Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). If the 

movant satisfies its burden, the burden shifts to the non-moving party to go 

beyond the pleadings and set forth specific facts showing a genuine issue 

for trial. Celotex, 477 U.S. at 324; Wrench LLC v. Taco Bell Corp., 256 

F.3d 446, 453 (6th Cir. 2001). “The failure to present any evidence to 

counter a well-supported motion for summary judgment alone is grounds 

for granting the motion.” Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 

2009). 

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B.

Under the TCPA, it is unlawful for a party to place a phone call to a 

cellular phone’s number using an “automatic telephone dialing system,”

which is defined as equipment that can store or produce telephone 

numbers and dial them. §§ 227(a)(1), 227(b)(1)(iii). Holmes contends that 

Capital One used such technology to dial his cellular phone, in violation of 

the TCPA. [See R. 1-3, PgID 14, ¶ 10]. But Capital One submitted with their 

motion the sworn declaration of employee Jason Clemens, who states that 

Capital One agents placed calls to Holmes regarding a debt using “regular 

desk telephones” and the physical dialing of Holmes’ number; an automatic 

dialing system was not used. [R. 17-1, PgID 119-20]. Such calls are not 

prohibited by the TCPA. This evidence satisfies Capital Ones initial burden 

and Holmes has failed to present any contrary evidence.

C.

Holmes alleges that Capital One “failed to place [him] on its do-notcall-list,” in violation of § 227(c)(5). That section, in conjunction with 

§ 227(c)(3), prohibits an entity from making more than one “telephone 

solicitation” within a twelve-month period to a person on the national do-nocall-list. Capital One alleges that the calls placed to Holmes concerned a 

debt, which Holmes appears to have conceded in his complaint. [R. 17-1, 

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PgID 120; R. 1-3, PgID 13 (describing Capital One as an entity that places 

calls for the purposes of collecting debt)]. Debt collection calls are not 

“telephone solicitations” within the meaning of the TCPA, so Holmes’s 

claim under § 227(c)(5) is without merit. Meadows v. Franklin Collection 

Serv., Inc., 414 F. App'x 230, 235 (11th Cir. 2011). 

III. CONCLUSION

For the preceding reasons, the Court RECOMMENDS Capital One’s 

motion [R. 17] be GRANTED.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: August 15, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

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might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on August 15, 2016.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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