On November 2, 2015, the U.S. District Court for the Middle District of Florida granted Defendant, LTD Financial Services, its Motion for Partial Summary Judgment as to Plaintiff’s TCPA claim – the only federal claim alleged in Plaintiff’s complaint.  In finding for the defendant, the Court looked to the record evidence as it pertained to defendant’s use or non-use of an automatic telephone dialing system (“ATDS”).  Defendant submitted testimony and declaratory evidence from its senior vice president to argue that it did not use an ATDS to place calls to Plaintiff’s cellular telephone because its employees use a manual “point and click function” to dial selected numbers.  Significantly, this point and click function “means that the employee determines which of the phone numbers on the account they wish to call, selects the phone number using the mouse of their computer, clicks on the number, and the call is then launched.”  Estrella v. LTD Financial Serv., LP, No. 8:14-cv-2624, 2015 WL 6742062, at *2 n. 3 (M.D. Fla. Nov. 2, 2015) (internal citations omitted).  The Court found that none of Plaintiff’s evidence, which included an unsworn declaration, rebutted the fact that “the evidence demonstrates, at most, that the calls were placed manually with the use of human intervention through a ‘point and click function.’” Id. at *3.  In dismissing this claim from Plaintiff’s complaint, the Court furthermore declined to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims and remanded the case back to Florida state court. 

This ruling is illustrative of the fact that courts are willing to dismiss TCPA claims alleging use of an ATDS where the record evidence is clear that human intervention played a significant role in the dialing procedure.  Here, the Court—without getting into the technical aspects of dialing—relied solely on Defendant’s declaration and testimony regarding the “point and click” dialing function to determine that Plaintiff’s TCPA claim failed as a matter of law.