United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE.
case is before the Court on the Motion for Summary Judgment
(“Motion”) [Doc. # 26] filed by Defendant Mirand
Response Systems, Inc. (“Mirand”), to which
Plaintiff Nina Tyler filed a Response [Doc. # 27], and Mirand
filed a Reply [Doc. # 28]. Having carefully reviewed the full
record and applicable legal authorities, the Court
grants Mirand's Motion.
had a checking account with overdraft protection at
Woodforest National Bank (the “Bank”). In
connection with her checking account, Plaintiff authorized
calls to her cellphone, including through the use of
pre-recorded/artificial voice messages and/or use of an
automatic dialing device. See Account Agreement,
Exh. D to Motion, Bates No. MRS0027; MRS0042.
became indebted to the Bank in the amount of $470.96. On
February 21, 2017, Plaintiff's debt was assigned to
Mirand for collection.
filed this lawsuit on April 6, 2018. Plaintiff alleges that
Mirand contacted her by telephone in violation of the Fair
Debt Collection Practices Act (“FDCPA”) and the
Telephone Consumer Protection Act (“TCPA”) .
After the close of discovery, Mirand moved for summary
judgment on both claims. The Motion has been fully briefed
and is now ripe for decision.
STANDARD FOR SUMMARY JUDGMENT
of the Federal Rules of Civil Procedure provides for the
entry of summary judgment against a plaintiff who fails to
make a sufficient showing of the existence of an element
essential to her case and on which she will bear the burden
at trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Curtis v. Anthony, 710 F.3d 587,
594 (5th Cir. 2013); Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc). Summary
judgment should be rendered if the pleadings, the discovery
and other admissible materials in the record show that there
is no genuine, triable issue of material fact and that the
movant is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a); Celotex, 477
U.S. at 322-23, 327; Curtis, 710 F.3d at 594.
summary judgment, the initial burden falls on the movant to
identify areas essential to the non-movant's claim in
which there is an “absence of a genuine issue of
material fact.” ACE Am. Ins. Co. v. Freeport
Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th
Cir. 2012). The moving party, however, “need not negate
the elements of the nonmovant's case.” Coastal
Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759
F.3d 498, 505 (5th Cir. 2014) (quoting Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). The
moving party may meet its burden by pointing out “the
absence of evidence supporting the nonmoving party's
case.” Malacara v. Garber, 353 F.3d 393, 404
(5th Cir. 2003) (citing Celotex, 477 U.S. at 323;
Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir.
moving party meets its initial burden, the non-movant must go
beyond the pleadings and designate specific facts showing
that there is a genuine, triable issue for trial. See
Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th
Cir. 2004); Littlefield v. Forney Indep. Sch. Dist.,
268 F.3d 275, 282 (5th Cir. 2001) (internal citation
omitted). “An issue is material if its resolution could
affect the outcome of the action.” Spring Street
Partners-IV, L.P. v. Lam, 730 F.3d 427, 435 (5th Cir.
2013). “A dispute as to a material fact is genuine if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” DIRECT TV Inc. v.
Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal
deciding whether a genuine and material fact issue has been
created, the court reviews the facts and inferences to be
drawn from them in the light most favorable to the nonmoving
party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A
genuine issue of material fact exists when the evidence is
such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th
Cir. 2009) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). “‘Conclusional
allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do
not adequately substitute for specific facts showing a
genuine issue for trial.'” Pioneer Exploration,
L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th
Cir. 2014) (quoting Oliver v. Scott, 276 F.3d 736,
744 (5th Cir. 2002)); accord Delta & Pine Land Co. v.
Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008). Instead, the nonmoving party must present
specific facts which show “the existence of a genuine
issue concerning every essential component of its
case.” Firman v. Life Ins. Co. of N. Am., 684
F.3d 533, 538 (5th Cir. 2012) (citation and internal
quotation marks omitted). In the absence of any proof, the
court will not assume that the non-movant could or would
prove the necessary facts. Little, 37 F.3d at 1075
(citing Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 888 (1990)).
Court may make no credibility determinations or weigh any
evidence. See Chaney v. Dreyfus Serv. Corp., 595
F.3d 219, 229 (5th Cir. 2010) (citing Reaves Brokerage
Co., 336 F.3d at 412-13). The Court is not required,
however, to accept the nonmovant's conclusory
allegations, speculation, and unsubstantiated assertions
which are either entirely unsupported, or supported by a mere
scintilla of evidence. Id. (citing Reaves
Brokerage, 336 F.3d at 413); accord, Little, 37
F.3d at 1075.