     Case: 14-11316    Document: 00513238885       Page: 1   Date Filed: 10/20/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-11316                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
ARMANDO YBARRA,                                                    October 20, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

DISH NETWORK, L.L.C.,

             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Northern District of Texas


Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
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.
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                                 No. 14-11316
              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:


      Call Number                Date of Call                  Result
1                           05/04/13                  Positive Voice
2                           05/18/13                  Answering Machine
3                           06/01/13                  Answering Machine
4                           06/15/13                  Answering Machine
5                           06/29/13                  Data Error-No Value
6                           07/01/13                  Positive Voice
7                           10/29/13                  Positive Voice


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                                 No. 14-11316
      Ybarra filed suit against DISH in December 2013, in the United States
District Court for the Northern District of Texas, alleging that DISH violated
the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.
Specifically, Ybarra alleged that DISH violated the TCPA by calling his phone
using an automatic telephone dialing system (“ATDS”) and/or by using an
artificial or prerecorded voice without Ybarra’s prior express consent. The
parties filed cross-motions for summary judgment.
      On November 14, 2014, the district court: (1) granted Ybarra’s motion
for summary judgment in part on the seven calls from DISH’s 8047 number,
(2) denied Ybarra’s motion for summary judgment in part on the other eight
calls, and (3) denied DISH’s motion in full. The district court reasoned that
“[w]ithout needing to determine whether the CISCO Dialer is an ATDS,
Defendant has admitted to using a prerecorded voice in calls from the 8047
number. Because the TCPA prohibits making any call using a prerecorded
voice, DISH concedes that the prerecorded voice was present in the calls from
the 8047 number regardless of whether Ybarra triggered it with a positive
voice.” The district court determined that Ybarra was entitled to statutory
damages of $500 per call, or $3,500 in total.
      A few weeks after the district court’s November 14 ruling, the parties
stipulated to dismissal of the claims related to the remaining eight calls. They
jointly filed a settlement agreement and a stipulation of dismissal. In that
document, they agreed to dismiss Ybarra’s eight remaining claims while
expressly providing that the agreement did not affect DISH’s right to appeal
from the partial summary judgment. The parties also filed a “Joint Proposed
Judgment Entry.” On December 11, the court entered its own “Final
Judgment,” which used slightly different language than in the parties’
proposal. DISH timely appealed that final judgment.


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                                  No. 14-11316
                                 DISCUSSION
      Ybarra argues that this court lacks jurisdiction because the final
judgment, which implemented the parties’ agreement to settle the remainder
of the case, did not reserve DISH’s right to appeal from the earlier partial
summary judgment. We begin our review by analyzing jurisdiction, then turn
to the validity of the district court’s entry of partial summary judgment.


I.     Jurisdiction over DISH’s appeal
      Four weeks after the district court granted in part Ybarra’s motion for
summary judgment, the parties jointly filed two documents. One was a “Notice
of Settlement and Stipulation of Dismissal with Prejudice as to Non-
adjudicated Claims.”    There, the parties referred to Federal Rule of Civil
Procedure 41(a)(1)(A)(ii), which provides for a voluntary dismissal of a suit by
the plaintiff. The notice also stated that the parties “stipulate to the dismissal
with prejudice of all claims for which summary judgment was not granted. . . .
This stipulation does not apply to or affect the adjudicated seven telephone
calls . . . as adjudicated in the Court’s Memorandum Opinion and Order (Doc.
64) and does not impact DISH’s right to appeal that Order, which issues are
addressed in the separately filed joint proposed judgment entry.”
      On the same day, the parties also submitted a proposed judgment
containing complementary language. On appeal, Ybarra relies on the fact that
DISH’s right to appeal was not expressly reserved, either in the parties’
proposed judgment or the district court’s slightly simpler final judgment. The
judgment actually entered read: “The Court has entered its order granting in
part Plaintiff’s Motion for Summary Judgment, and the parties have stipulated
to dismissal with prejudice of all claims for which summary judgment was not
granted.   It is therefore ORDERED, ADJUDGED, and DECREED that
Plaintiff’s Motion for Summary Judgment is GRANTED . . . .”
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                                  No. 14-11316
      Ybarra contends that DISH waived its right to appeal by consenting to
the entry of this final judgment. Ybarra relies on a decision from this court in
which we reviewed a consent judgment that was entered just prior to trial.
Amstar Corp. v. S. Pac. Transp. Co. of Tex. & La., 607 F.2d 1100 (5th Cir. 1979)
(per curiam).    In Amstar, the district court granted a partial summary
judgment that limited the plaintiff’s damages. Later, in the parties’ consent
judgment that dealt with the issue of liability, the parties sought to reserve the
plaintiff’s right to appeal the earlier limitation of damages. Id. at 1100. We
held the reservation was ineffective because “both parties freely consented to
the entry of a final judgment.” Id.
      Our authority for the holding in Amstar was a case involving a dispute
over attorney’s fees. White & Yarborough v. Dailey, 228 F.2d 836, 836−37 (5th
Cir. 1955). The district court awarded the attorneys a fee of $1,000; on appeal
the attorneys argued they should receive $2,000, which their client at the
beginning of the case had agreed to pay. Id. at 837. The client filed no brief.
We stated that the judgment containing the $1,000 fee was entered by
agreement. A party cannot accept some parts of such a judgment and appeal
from parts less to its liking: “Appeals, in short, can be taken only where a
judgment has been entered adversely to the parties seeking to appeal and
where the record shows timely and adequate objection made thereto.” Id. at
837. There is no indication that the attorneys reserved the right to appeal in
the consent judgment or even mentioned its disagreeing to the fee award.
      Because of the absence of any reservation in the consent judgment, White
& Yarborough was not on-point authority for the decision in Amstar that the
right to appeal a previous district court ruling cannot be effectively reserved in
the final settlement of a case. In fact, White & Yarborough seemingly was just
upholding the bargain — a party’s lawyer cannot unreservedly participate in
the offering of an agreed judgment, then appeal with some previously
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                                        No. 14-11316
unmentioned objection. Another circuit has identified Amstar as creating a
rule unique to the Fifth Circuit that has been rejected by all other circuits to
consider the point. Downey v. State Farm Fire & Cas. Co., 266 F.3d 675, 683
(7th Cir. 2001). 1 Even if we are unique, Amstar is binding precedent. But it
binds only as far as its holding. We examine that closely.
         In Amstar, the pretrial ruling, for which the right to appeal was
unsuccessfully reserved, was on “the proper measure of damages resulting
from damage done to a shipment of sugar” transported by the defendant from
the plaintiff’s factory. 607 F.2d at 1100. All remaining contested issues were
then consensually resolved, including the amount of damages to be awarded
under the limitation earlier adjudged by the court. Id. Thus, there was one
litigated event — the transportation of the sugar — and one claim to damages.
The consent judgment was the final step in fully resolving a single claim.
         We later characterized Amstar as barring appeals when there is a
consent judgment, “even if the consent judgment contains an acknowledgment
of one party’s intent to appeal,” but only when the appeal dealt with “an issue”
of the consent judgment. Strouse v. J. Kinson Cook, Inc., 634 F.2d 883, 884 n.1




1   Professors Wright and Miller concluded that our decision in Amstar was wrong.

         If the parties [in Amstar] in fact both agreed that an appeal would remain open
         to test the measure of damages, the court’s decision is wrong. Justice
         Blackmun dissented from denial of certiorari, arguing that the plaintiff should
         “not be foreclosed by a strict concept of consent and acceptance in the face of
         facts that the asserted consent was specifically limited and that [plaintiff]
         consistently and persistently disclaimed full settlement of the lawsuit.”
         [Amstar Corp. v. S. Pac. Transp. Co. of Tex. & La., 449 U.S. 924, 927 (1980)
         (Blackmun, J., dissenting from denial of grant of certiorari)].

15A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §
3902 n.63 (2d ed. 1992).


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                                  No. 14-11316
(5th Cir. Unit B Jan. 1981) (per curiam). That is our reading of Amstar as well.
The present appeal is readily distinguishable.
       In the present case, there were two separate groups of phone calls,
distinguished by the equipment and the phone number used to place the calls.
As the district court’s rulings themselves show, there were distinctions among
the claims that required different analysis. Settlement of one set of claims did
not affect the analysis applicable to the other set of claims. Amstar only
precludes the appeal of a claim directly covered by the consent judgment. Here,
claims subject to the partial summary judgment are independent of the settled
claims. The reservation of a right to appeal was effective.


II.    The district court’s entry of partial summary judgment
       We review a grant of summary judgment de novo, applying the same
standards as the district court. E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694
(5th Cir. 2014). Summary judgment is appropriate “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).
       Section 227(b)(1)(A)(iii) of the TCPA makes it unlawful to “make any call
. . . using any automatic telephone dialing system [‘ATDS’] or an artificial or
prerecorded voice . . . to any telephone number assigned to a . . . cellular
telephone service . . . .” 47 U.S.C. § 227. The district court held that it did not
need to determine whether DISH used an ATDS because DISH “admitted to
using a prerecorded voice” and “the TCPA prohibits making any call using a
prerecorded voice . . . regardless of whether Ybarra triggered it with a positive
voice.” DISH concedes that it violated the TCPA by making calls 1, 6, and 7
using a prerecorded voice. Nonetheless, it contends that the district court
erred in holding that DISH violated the TCPA in making calls 2 through 5.
DISH proffers that none of these calls resulted in a prerecorded voice being
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                                       No. 14-11316
used because no prerecorded voice was played as these calls were not met by a
positive voice. 2
       To be liable under the “artificial or prerecorded voice” section of the
TCPA, we conclude that a defendant must make a call and an artificial or
prerecorded voice must actually play. A couple of considerations compel this
conclusion. First, under traditional rules of statutory interpretation, we “look
at the plain meaning of the statutory language.” United States v. Spurlin, 664
F.3d 954, 964 (5th Cir. 2011). In the context of the TCPA, the word “using” is
best interpreted as meaning the artificial voice “spoke.” That the prerecorded
voice was on standby as the call was placed is not sufficient when the statute
requires that the voice be “used.”
       Second, the TCPA makes it unlawful to make any call using an
“automatic telephone dialing system.” In contrast, it is not unlawful under the
TCPA to make a call using an artificial or prerecorded voice system. Rather,
what is precluded by the TCPA is making a call using “an artificial or
prerecorded voice.” The omission of the word “system” must be given effect.
See Burnett Ranches, Ltd. v. United States, 753 F.3d 143, 148 (5th Cir. 2014).
       We hold that making a call in which a prerecorded voice might, but does
not, play is not a violation of the TCPA. Instead, the prerecorded voice must
“speak” during the call.          A party who makes a call using an automatic
telephone dialing system uses the system to make the call, regardless of
whether the recipient answers, and thereby triggers TCPA liability. With a



2Ybarra alternatively argues that DISH made the calls using an ATDS. If that is so, then
DISH’s possible violations of the TCPA would not turn on the “prerecorded voice” analysis.
This claim was not explicitly resolved by the district court. Instead, the court determined
that the CISCO-dialer manual, which was the only purported factual support for Ybarra’s
argument, was unauthenticated and inadmissible hearsay. Because Ybarra has not cross-
appealed the district court’s ruling excluding the manual, the exclusion stands. Art Midwest
Inc. v. Atl. Ltd. P’ship XII, 742 F.3d 206, 211 (5th Cir. 2014). Thus, there is no evidence that
DISH used an ATDS, and Ybarra’s alternative argument fails.
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                                 No. 14-11316
prerecorded voice, though, unless the recipient answers, an artificial or
prerecorded voice is never used. Indeed, the several cases that Ybarra cites for
the proposition that making a call with a prerecorded voice is sufficient for
liability are actually cases involving the use of an ATDS. See, e.g., Castro v.
Green Tree Servicing LLC, 959 F. Supp. 2d 698, 720 (S.D.N.Y. 2013).
      DISH conceded that phone calls number 1, 6, and 7 created TCPA
liability. Its motion for summary judgment stated that Ybarra was entitled to
$500 per call for those three calls, but it also argued the claims for calls 2
through 5 should be dismissed. That motion should have been granted.
      We REVERSE the grant of Ybarra’s motion for partial summary
judgment. We REMAND to the district court to enter judgment for Ybarra in
the amount of $1,500.




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