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Armando YBARRA, Plaintiff–Appellee v. DISH NETWORK, L.L.C., Defendant–Appellant.

LESLIE H. SOUTHWICK, Circuit Judge

Jenny Diane DeFrancisco, Esq. (argued), Jody Berke Burton, Lemberg Law, L.L.C., Stamford, CT, Plaintiff–Appellee.

Eric Larson Zalud, Senior Litigating Attorney, Laura Elizabeth Kogan, Esq., Benesch, Friedlander, Coplan & Aronoff, L.L.P., Cleveland, OH, Vic Houston Henry, Henry, Oddo, Austin & Fletcher, Dallas, TX, Benjamen E. Kern (argued), Benesch, Friedlander, Coplan & Aronoff, L.L.P., Columbus, OH, for Defendant–Appellant.

Opinion

LESLIE H. SOUTHWICK, Circuit Judge:

Armando Ybarra filed suit against DISH Network, L.L.C. for violations of the Telephone Consumer Protection Act. DISH called Ybarra's cell phone 15 times to collect an unpaid balance. The district court entered partial summary judgment sustaining Ybarra's claims regarding seven of the calls. Claims as to the other eight calls were later settled. On this appeal which solely relates to the seven calls, we conclude the district court erred in granting Ybarra's motion for partial summary judgment. Summary judgment should have been granted to DISH on four of the seven calls. DISH has conceded liability as to the other three calls. We REVERSE and REMAND.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2012, a person who is not involved in this litigation entered into an agreement with DISH to receive satellite-television services. As part of the agreement, the DISH customer authorized DISH to contact him at a specific number, which we refer to as the “3475 number.” DISH could use the number “to recover any unpaid portion of [his] obligation,” if necessary. In May 2013, Armando Ybarra acquired the 3475 number after, presumably, the DISH customer relinquished it.

At some point, the DISH customer stopped paying for the television services. DISH began to call the 3475 number, which now belonged to Ybarra, to collect what the other person owed. DISH called the 3475 number 15 times between May 3, 2013, and October 29, 2013, using two different phone numbers. Seven calls were placed from a number ending in “8047” and eight calls from a number ending in “3474.” This appeal involves only the seven calls from DISH's 8047 number, which were made using a “Cisco Dialer.” That device plays prerecorded messages when calls are met by a “positive voice,” which may be either an actual human voice or a recorded voicemail greeting. The following summarizes the result of each call:

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Ybarra v. Dish Network, L.L.C.
(Oct 20, 2015)