Joshua Brenner v. American Education Services, No. 17-1981 (8th Cir. 2017)
Annotate this CaseCourt Description: Per Curiam - Before Benton, Bowman and Murphy, Circuit Judges] Civil Case - Telephone Consumer Protection Act. The district court did not err in granting defendant's motion for summary judgment, as plaintiff failed to provide probative evidence that defendant used an automatic dialing system or a prerecorded or artificial voice to make calls to his cell phone, an essential element of his claim. [ November 20, 2017
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-1981 ___________________________ Joshua Seth Brenner lllllllllllllllllllll Plaintiff - Appellant v. American Education Services (AES) lllllllllllllllllllll Defendant - Appellee ____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________ Submitted: November 15, 2017 Filed: November 21, 2017 [Unpublished] ____________ Before BENTON, BOWMAN, and MURPHY, Circuit Judges. ____________ PER CURIAM. Joshua Seth Brenner sued American Education Services (AES), alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227. Brenner appeals the district court’s1 adverse grant of summary judgment. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. Reviewing the record de novo in the light most favorable to the non moving party, this court concludes that summary judgment was proper. See Murchison v. Rogers, 779 F.3d 882, 886-87 (8th Cir. 2015) (standard of review). Brenner failed to provide probative evidence that AES used an automatic telephone dialing system, or a prerecorded or artificial voice to make calls to his cell phone, an essential element of his claim. See 47 U.S.C. § 227(b) (prohibiting calls to cell phones using automatic telephone dialing system or artificial or prerecorded voice without prior express consent of called party); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (summary judgment is proper “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”); Moody v. St. Charles Cty., 23 F.3d 1410, 1412 (8th Cir. 1994) (to defeat summary judgment, non-moving party must substantiate allegations with sufficient probative evidence that would allow finding in his favor based on more than conjecture, speculation, or his own naked assertions). The judgment is affirmed. See 8th Cir. R. 47B. ______________________________ 1 The Honorable Henry E. Autrey, United States District Judge for the Eastern District of Missouri. -2-
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