Naomi Cushman v. GC Services, L.P.

Filing

UNPUBLISHED OPINION FILED. [09-20862 Affirmed ] Judge: FPB , Judge: ECP , Judge: LHS Mandate pull date is 10/21/2010 [09-20862]

Naomi Cushman v. GC Services, L.P.

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20862 S u m m a r y Calendar September 30, 2010 Lyle W. Cayce Clerk

N A O M I CUSHMAN P la in t iff ­ Appellant v. G C SERVICES, L.P. D e fe n d a n t ­ Appellee

A p p e a l from the United States District Court for the Southern District of Texas (0 8 -C V -2 2 2 9 )

B e fo r e BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* N a o m i Cushman ("Cushman") filed suit against GC Services, L.P. ("GC ") a lle g in g violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ( " F D C P A " ), the Texas Debt Collection Practices Act, Chapter 392 ("TDCPA"), a n d the Texas Deceptive Trade Practices­Consumer Protection Act, Business a n d Commerce Code, Subchapter E, Chapter 17 ("DTPA") in connection with G C 's debt collection practices. The district court granted GC's motion for

s u m m a r y judgment with respect to Cushman's DTPA claim, denied it with
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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No. 09-20862 r e s p e c t to her TDCPA claim, and ultimately directed a verdict in favor of GC on o n e of Cushman's FDCPA claims. After the jury returned a verdict in favor of G C on the remaining FDCPA and TDCPA claims, the district court denied C u s h m a n 's motion for a new trial. For the following reasons, we affirm. I . FACTUAL AND PROCEDURAL BACKGROUND G C first attempted to contact Cushman by phone and mail in March 2008, in order to collect credit card debts that Cushman owed to American Express. GC left several voice mail messages for Cushman and mailed several letters d e m a n d in g payment. Cushman placed calls to GC on two occasions in

2 0 0 8 -- o n c e on March 31st, and once on May 6th. Cushman alleged that in one c a ll, a GC employee threatened to contact her employer and family to settle the d e b t, or to garnish her wages, and on the second call, another GC employee also r a is e d the possibility of wage garnishment. Cushman also alleged that GC contacted two former employers and her t e n a n t . GC's call logs note that employees spoke to two employers who said that C u s h m a n was no longer employed there. These call logs also show that a GC e m p lo y e e spoke with Cushman's tenant on one occasion , telling him that GC did n o t know how to reach Cushman. This call occurred after a GC employee had a lr e a d y spoken directly with Cushman. Cushman filed suit against GC, alleging that GC violated provisions of the F D C P A , TDCPA, and DTPA. Most pertinent to her appeal, Cushman claimed t h a t GC contacted third parties for a purpose other than obtaining "location" in fo r m a t io n as allowed by section 1692b; a violation of section 1692c of the F D C P A . Before trial, GC moved for partial summary judgment on Cushman's T D C P A and DTPA claims. The district court denied summary judgment on the T D C P A claim, but granted it in favor of GC on the DTPA claim, finding that C u s h m a n did not have standing to sue under the DTPA because she was not a " c o n s u m e r " as required by the Act. 2

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No. 09-20862 A t the close of Cushman's case-in-chief, GC moved for judgment as a m a t t e r of law on all of Cushman's remaining claims. The court denied the m o t io n s as to Cushman's TDCPA claim and her claim under section 1692d of the F D C P A , but granted a directed verdict in favor of GC as to Cushman's section 1 6 9 2 c claims. The jury returned verdicts in favor of GC on the remaining claims u n d e r the FDCPA and TDCPA. Cushman subsequently moved for a new trial. She argued that the district court erred in directing a verdict under section 1 6 9 2 c , that GC's counsel engaged in improper argument in her opening s t a t e m e n t and elicited evidence allegedly barred by a motion in limine, and that t h e court failed to instruct the jury as to the relevant evidentiary standards. The district court denied Cushman's motion for a new trial. Cushman timely a p p e a le d the grant of summary judgment under the DTPA, the directed verdict u n d e r section 1692c of the FDCPA, and the district court's denial of her motion fo r a new trial. II. ANALYSIS W e review the district court's grant of summary judgment de novo, a p p ly in g the same standard as the district court. Amerisure Ins. Co. v.

N a v ig a to r s Ins. Co., 611 F.3d 299, 304 (5th Cir. 2010). Summary judgment is a p p r o p r ia te when, viewed in the light most favorable to the nonmoving party, " t h e pleadings, the discovery and disclosure materials on file, and any affidavits s h o w that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). T h is court reviews the district court's grant of judgment as a matter of law d e novo as well. U.S. Commodity Futures Trading Comm'n v. Dizona, 594 F.3d 4 0 8 , 413 (5th Cir. 2010). Judgment as a matter of law is appropriate after "a p a r ty has been fully heard on an issue during a jury trial and the court finds t h a t a reasonable jury would not have a legally sufficient evidentiary basis to f i n d for the party on that issue." FED. R. CIV. P. 50(a). "In evaluating such a 3

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No. 09-20862 m o t io n , the court must consider all of the evidence in the light most favorable to t h e nonmovant, drawing all factual inferences in favor of the non-moving party, a n d leaving credibility determinations, the weighing of evidence, and the d r a w in g of legitimate inferences from the facts to the jury." Dizona, 594 F.3d at 413. We review the district court's denial of a motion for a new trial for abuse o f discretion. Alaniz v. Zamora-Quezada, 591 F.3d 761, 770 (5th Cir. 2009). Further, "[o]ur review is particularly limited when the trial court has denied a m o t io n for a new trial." Id. (citing Dotson v. Clark Equip. Co., 805 F.2d 1225, 1 2 2 7 (5th Cir. 1986)). A. S u m m a r y Judgment Under the DTPA T h e DTPA provides that "a consumer" may bring an action for a variety o f deceptive business practices listed under the Act. TEX. BUS. & COM. CODE A NN. § 17.50(a). The Act defines "consumer" as an individual or entity "who s e e k s or acquires by purchase or lease, any goods or services." TEX. BUS. & COM. C ODE ANN. § 17.45(4). The DTPA also acknowledges that other Acts may provide a basis for action under the DTPA. See TEX. BUS. & COM. CODE ANN. § 17.43; T EX. BUS. & COM. CODE ANN. § 17.50(h). The TDCPA contains one of these "tiein " provisions to the DTPA, providing that any violation of the TDCPA qualifies a s a "deceptive trade practice" that is actionable under the DTPA. TEX. FIN. C ODE ANN. § 392.404. Cushman argues that the district court erred in granting summary ju d g m e n t to GC by finding that she lacked standing as a "consumer" to sue u n d e r the Act. On appeal, Cushman does not contend that she qualifies as a " c o n s u m e r " under the DTPA. Rather, she argues that while the text of DTPA e x p lic it ly limits standing to a "consumer," she may nevertheless maintain a D T P A claim because consumer status is not required under the TDCPA "tie-in" p r o v is io n . In support, Cushman notes that DTPA section 17.50(h) contemplates 4

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No. 09-20862 " c la im a n t s " under another law rather than "consumers" as used in the rest of s e c t io n 17.50. Cushman argues that by distinguishing "consumers," who may o n ly recover economic damages, from "claimants" under "another law," who are " n o t limited to recovery of economic damages only," section 17.50(h) exempts c la im a n t s under "tie-in" provisions from proving consumer status under certain s e c t io n s of the DTPA. Additionally, she cites two Texas Supreme Court cases t h a t she claims stand for the proposition that "claimants" under other laws need n o t always prove "consumer" status to maintain a DTPA claim. See Crown Life I n s . Co. v. Casteel, 22 S.W.2d 378 (Tex. 2000); Aetna Cas. and Sur. Co. v. M a r s h a ll, 724 S.W.2d 770 (Tex. 1987). We disagree. T h e Texas Supreme Court has consistently held that "[o]nly a `consumer' c a n maintain a cause of action directly under the DTPA." Casteel, 22 S.W.2d at 3 8 6 ; see also Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex. 1987) (" D T P A plaintiffs must qualify as consumers . . . to maintain a private cause of a c t io n under section 17.50 of the DTPA"). Although the text of section 17.50(h) d is t in g u is h e s the type of damages that DTPA plaintiffs bringing claims through " t ie -in " statutes may recover, it does not exempt those claimants from proving c o n s u m e r status. See Marketic v. U.S. Bank Nat'l Assoc., 436 F. Supp. 2d 842, 8 5 4 -5 5 (N.D. Tex. 2006) ("§ 17.50(h) does not exempt claimants from showing t h a t they qualify as a `consumer' . . ."); Eads v. Wolpoff & Abramson, LLP, 538 F . Supp. 2d 981, 989 (W.D. Tex. 2008) (holding that a DTPA claimant using the T D C P A "tie-in" statute must prove consumer status in order to have standing). W e also find the Texas Supreme Court cases cited by Cushman do not e x e m p t claimants under "tie-in" statutes from the DTPA's "consumer" r e q u ir e m e n t . Casteel dealt specifically with the relationship between Article 2 1 .2 1 of the Texas Insurance Code and the DTPA. Article 21.21 provided a cause o f action under that section if the plaintiff was a "person" under Article 21.21's d e fin it io n , and was "injured by another's acts or practices declared to be unfair 5

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No. 09-20862 o r deceptive under either (a) Article 21.21, section 4, or (b) DTPA section 17.46." Casteel, 22 S.W.2d at 383. The relevant issue in Casteel was whether a claimant u n d e r Art. 21.21, who based their claim off of a DTPA § 17.46 violation, was r e q u ir e d to prove consumer status. Id. The court held that Article 21.21

in c o r p o r a t e s the "laundry list of deceptive acts" under DTPA section 17.46, but n o t the entire DTPA. Id. at 386. See also Aetna, 724 S.W.2d at 772 ("Article 2 1 .2 1 does not incorporate the entire Deceptive Trade Practices Act . . ."). Thus, t h e Casteel court held that an Article 21.21 plaintiff need only prove consumer s t a tu s if the particular subsection of DTPA section 17.46(b) she relies upon r e q u ir e s it. Id. C a s te e l and Aetna concern only the extent to which the consumer status r e q u ir e m e n t is incorporated into DTPA-based claims under Article 21.21 of the T e x a s Insurance Code. The holding of both cases is limited to claims brought u n d e r Insurance Code Article 21.21, and does not reach claims brought directly u n d e r the DTPA pursuant to "tie-in" statutes such as section 392.404 of the T D C P A . Therefore, a claimant under the DTPA must still have "consumer" s t a t u s in order to have standing. Cushman does not argue on appeal that she q u a lifie s as a "consumer" under the DTPA, and such an argument lacks merit. T h e r e fo r e , the district court was correct when it granted GC summary ju d g m e n t due to Cushman's lack of standing under the DTPA. B. Directed Verdict Under Section 1692c of the FDCPA S e c tio n 1692c(b) of the FDCPA prohibits debt collectors from

c o m m u n ic a t in g , "in connection with the collection of any debt," with any person e x c e p t the consumer and a few other explicitly defined other parties including t h e consumer's attorney. 15 U.S.C. § 1692c(b). However, the section does allow d e b t collectors to communicate with third parties for the purpose of obtaining " lo c a t io n information" about the consumer, as contemplated by section 1692b. The Act defines "location information" as encompassing only "a consumer's place 6

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No. 09-20862 o f abode and his telephone number at such place, or his place of employment." 15 U.S.C. § 1692a(7). C u s h m a n argues that the district court improperly granted GC's motion fo r judgment as a matter of law, because a reasonable jury could find that GC's c a lls to third parties sought more than just "location information." Specifically, s h e argues that when GC employees reached her former employers and her t e n a n t by phone, they had already obtained her "location information." Cushman asserts that GC already had her home phone number and address b e c a u s e GC left messages on her answering machine, had records with her n u m b e r listed as "home phone," and mailed letters to her home address that w e r e not returned. She asserts that GC also knew her place of employment b e c a u s e its records reflect that she had informed a GC employee that she had ju s t started a new job. Cushman also claims that a GC employee threatened to c o n t a c t her family and employer to try to settle the debt. Cushman reasons that g iv e n GC's knowledge of these facts and the alleged threat by its employee, the ju r y had a legally sufficient evidentiary basis to infer that GC called her former e m p lo y e r s and tenant for reasons other than obtaining location information. This court disagrees. I n order to prevail on a motion for judgment as a matter of law, a party m u s t show that there is "no legally sufficient basis for a reasonable jury to find fo r the party on that issue." FED. R. CIV. P. 50(a). Further, "the evidence must b e sufficient so that a jury will not ultimately rest its verdict on mere s p e c u la t io n and conjecture." Anthony v. Chevron USA, Inc., 284 F.3d 578, 583 (5 t h Cir. 2002). This court has had little occasion to interpret section 1692c of t h e FDCPA. Other courts, however, have required that plaintiffs produce some evidence of the third party conversations other than their own assertions in o r d e r to prove that the call was for purposes other than obtaining location in fo r m a t io n . See, e.g., Padilla v. Payco Gen. Am. Credits, Inc., 161 F. Supp. 2d 7

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No. 09-20862 2 6 4 , 274 (S.D.N.Y. 2001) (finding that in order to survive summary judgment on a FDCPA third party disclosure claim, a party must introduce "competent e v id e n c e , such as affidavits" and not rely on "bare hearsay assertions"). V ie w in g the evidence in a light most favorable to Cushman, she still has n o t offered any evidence that GC's calls to her former employer or tenant were fo r purposes other than obtaining location information. She does not offer a ffid a v it s or testimony from those third parties or provide evidence pertaining t o the substance of the conversations. GC's knowledge of a working phone n u m b e r for Cushman, unreturned mail, and awareness of a new job does not p r o v id e a sufficient evidentiary basis to find that GC sought anything other than " lo c a t io n information" when calling third parties. Such arguments are mere s p e c u la t io n , and thus the evidence is insufficient to survive a Rule 50(a) motion. As such, we find that the district court was correct in granting judgment as a m a t t e r of law in favor of GC. C. Motion for a New Trial C u s h m a n argues that the district court erred in denying her motion for a n e w trial. She claims she was prejudiced both by "misconduct" on the part of G C 's counsel and by the district court's refusal to use her requested jury in s t r u c t io n regarding the relevant evidentiary standards. We find that

C u s h m a n waived some of these issues by failing to timely object at trial and that t h e others lack merit. Cushman first argues a new trial is warranted because of misconduct by G C 's counsel during trial. First, Cushman claims she was prejudiced by

im p r o p e r ly argumentative remarks made by GC's counsel during her opening s t a t e m e n t . Second, she asserts that the district court allowed witness testimony t h a t violated one of GC's own motions in limine, while refusing to allow C u s h m a n 's counsel to extract such testimony. However, Cushman's counsel fa ile d to object to all but one of the allegedly objectionable statements in the 8

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No. 09-20862 o p e n in g statement and did not object when GC's counsel allegedly violated the m o t io n in limine while questioning a witness. "Where no objection is raised in t h e trial court," we are precluded from considering the alleged error, except u n d e r a plain error standard. See Morreale v. Downing, 630 F.2d 286, 290 (5th C ir . 1980) (citing United States v. Bockius, 564 F.2d 1193 (5th Cir. 1977)). Plain e r r o r review allows reversal of waived issues only if "there has been a m is c a r r ia g e of justice." Id. The statements cited by Cushman in the opening s t a t e m e n t , if argumentative at all, surely do not rise to the level of plain error. The same is true for the information elicited allegedly in violation of the motion i n limine. Further, this court will only grant a new trial if, considering the r e c o r d as a whole, it "concludes that manifest injustice will result from letting t h e verdict stand." Foradori v. Harris, 523 F.3d 477, 506 (5th Cir. 2008) (citing J o h n s o n v. Ford Motor Co., 988 F.2d 573, 582 (5th Cir. 1993)). Had Plaintiff's c o u n s e l timely objected at trial, the conduct of defense counsel, if at all improper, s t ill fails to present any "manifest injustice." C u s h m a n next argues that a new trial is warranted because the court fa ile d to properly instruct the jury as to the relevant evidentiary standards. Again, counsel failed to timely object to the proposed jury instructions at trial. "If a party fails to object with specificity to a proposed instruction, the right to c h a lle n g e the instruction on appeal is waived." Texas Beef Grp. v. Winfrey, 201 F .3 d 680, 689 (5th Cir. 2000) (citing Nero v. Industrial Molding Corp., 167 F.3d 9 2 1 , 932 (5th Cir. 1999)). Conducting plain error review, this court fails to see a n y miscarriage of justice resulting from the jury instruction. T h e r e fo r e , we find that the district court was correct in denying C u s h m a n 's motion for a new trial.

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No. 09-20862 I I I . CONCLUSION F o r the reasons set forth above, we AFFIRM the district court's grant of s u m m a r y judgment and judgment as a matter of law to Defendant­Appellees, a n d its denial of Plaintiff­Appellant's motion for a new trial. AFFIRMED.

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