Hunt v. 21st Mortgage Corporation

Filing 57

MEMORANDUM OPINION AND ORDER Defendants motion to strike is GRANTED as to the expert report of Robert Biggerstaff, but DENIED as to the deposition testimony of plaintiff and the affidavit testimony of Lauren Randall and Mary Honkanen. Signed by Judge William M Acker, Jr on 2/4/14. (SAC )

FILED
2014 Feb-04 PM 03:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES HUNT,
Plaintiff,
v.
21st MORTGAGE CORPORATION,
a Corporation,
Defendant.

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CIVIL ACTION NO.
2:12-CV-2697-WMA

MEMORANDUM OPINION AND ORDER
Charles Hunt (“Mr. Hunt” or “plaintiff”) brings this action
against 21st

Mortgage Company (“21st

Mortgage” or “defendant”)

seeking damages for unwanted debt collection phone calls made by
defendant.

Plaintiff brings a federal claim under the Telephone

Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, upon which he
invokes this court’s jurisdiction, and four related state law
claims over which the court has supplemental jurisdiction.1 Before
the court are the parties’ cross motions for summary judgment,
along

with

evidence.

defendant’s

supporting

motion

to

strike

certain

For the reasons that follow, defendant’s motion to

strike will be granted in part and denied in part.

Based on the

evidence that remains, defendant’s summary judgment motion will be
denied as to the TCPA and invasion of privacy claims, but granted

1

Plaintiff has conceded that his claim under the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et seq, should be
dismissed. See Pl.’s Opp’n at 55.
1

as to the other state law claims.

Plaintiff’s motion will be

denied.
Background
The

debt

that

brought

these

two

involved, at the outset, neither of them.

parties

into

conflict

In 2000, third party

Bradley Faile purchased a manufactured home from third party Chase
Manhattan Bank pursuant to an installment contract.
¶ 2.

Def.’s Facts

Amelia Hardiman, Faile’s mother and plaintiff’s later-to-be

wife, co-signed the contract as guarantor.

Id.

It was not until

nearly five years later that the two parties to this case became
involved.

In December, 2004, defendant acquired Chase Manhattan’s

interest in the installment contract.

Id. ¶ 4.

Nine months later,

in September, 2005, plaintiff made the first of several payments on
the contract on behalf of Hardiman, his then girlfriend.

Id. ¶ 5.

The next three years were years of apparent harmony.

In

November, 2007, plaintiff and his girlfriend were married, and
Amelia Hardiman became Amelia Hunt.

Id. ¶ 1.

Meanwhile, Ms.

Hardiman/Hunt made regular payments to defendant, see Payment
History, Def.’s Ex. B3, at 6-10, only a few of which were made by
plaintiff on behalf of his wife, see Caldwell Aff., Def.’s Ex. B,
¶ 6.
In 2008, however, the Hunts’ relationship with defendant
soured.

Mr. Hunt testifies that he suffered a downturn in his

business, and fell behind on payments on “almost everything.” Hunt
2

Dep. at 151.

Ms. Hunt’s finances were apparently in no better

shape. The payments on the Faile contract became more erratic, see
Payment History, Def.’s Ex. B3 at 10-12, and the payments that were
made came by telephone from plaintiff, rather than from Ms. Hunt,
the real obligor, see Caldwell Aff., Def.’s Ex. B, ¶ 6.
while,

defendant’s

persistent.

demands

for

payment

became

All the

increasingly

According to plaintiff, defendant made over 100 calls

to his cell phone, which he used as his work phone, between 2008
and 2011.

Pl.’s Mot. at 2.

Plaintiff claims that he repeatedly

told defendant over the phone that this was not his debt, that he
was simply helping out his wife and son, that the number being
called was a work number, and emphatically that defendant was to
stop calling him on that phone.

See Hunt Dep., Pl.’s Ex. C, at 54.

He claims that not only did defendant continue to make calls to
him, it also called his mother, sister, ex-wife, daughter, and
neighbors in efforts to contact or harass him.
4-5.

See Pl.’s Mot. at

In mid-2011, the situation apparently came to a head.

On

July 18, 2011, Mr. Hunt made his last payment on the obligation of
his wife and stepson.

Caldwell Aff., Def.’s Ex. B, ¶ 6.

There is

no evidence of any payment on the contract by anyone after that
date, although there was a substantial balance due at that time.
The debt was mysteriously or miraculously paid off in full on
September 30, 2011.

See Payment History, Def.’s Ex. B3, at 12.

This enigma does not factor in this court’s decision.

3

In August, 2011, the Hunts’ resistance to defendant’s calls
became more organized.

On August 8, 2011, Ms. Hunt sent defendant

a certified letter demanding that defendant stop making unwanted
telephone calls.
Hunt brought

Def.’s Facts ¶ 17.

suit

against

defendant

On December 18, 2011, Ms.
in

the Circuit

Court of

Jefferson County, Alabama, asserting federal claims under the TCPA
and Federal Debt Collection Practices Act and stating several state
law claims.

That case was removed to this court, see Hunt v. 21st

Mortgage Corp., 2:12-CV-381-RDP, 2012 WL 3903783, at *1 (N.D. Ala.
Sept. 7, 2012), and following mediation, was settled by the parties
on November 11, 2012.

This court guesses that defendant forgave

the outstanding balance as part of its settlement with Ms. Hunt.
On August 14, 2012, plaintiff brought this suit.
identical to the suit brought by his wife.

It is

The parties have

completed discovery, and both now move for summary judgment.
Discussion
I.

Evidentiary Issues
Before the court moves to the merits of the parties’ cross

motions, it must address defendant’s motion to strike certain
evidence on which plaintiff relies.
A.

Expert Testimony of Robert Biggerstaff

Defendant first moves to strike the Expert Report of Robert
Biggerstaff,

Pl.’s

Ex.

G.

Biggerstaff

is a

computer

expert

retained by plaintiff to examine defendant’s telephone system and
4

to state his opinion as to whether defendant’s system had the type
of automatic dialing capabilities defined by the TCPA as an avenue
to liability. Defendant argues that this testimony is inadmissible
because plaintiff failed to follow the disclosure requirements of
Rule 26, F.R. Civ. P., and because Biggerstaff’s testimony is not
a

proper

subject

of expert

testimony

under

Federal

Rules of

Evidence (“FRE”) 701-703.
Rule 26(a)(2) requires parties to make special disclosures in
advance of trial if they wish to use expert testimony.

The party

offering the expert must provide an “expert report” that includes,
among other things, a list of all publications the expert has
authored during the past 10 years, a list of all cases in which the
expert has testified during the past four years, and a statement of
the compensation to be paid the expert for his testimony.

Rule

26(a)(2)(B)(iii)-(v). The report must be submitted at the time and
in the sequence required by the court.

Rule 26(a)(2)(D).

If a

party fails to meet these requirements, “the party is not allowed
to use [the] information or witness to supply information on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”

Rule 37(c)(1), F.R. Civ.

P.; see also Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008)
(“Because the expert witness discovery rules are designed to allow
both sides in a case to prepare their cases adequately and to
prevent surprise, compliance with the requirements of Rule 26 is

5

not merely aspirational.”) (quoting Cooper v. S. Co., 390 F.3d 695,
728 (11th Cir. 2004)).
Mr. Hunt’s expert disclosures were badly deficient.

First,

Biggerstaff’s report was not submitted until December 6, 2013, the
day upon which both parties filed their summary judgment motions
and the last day upon which the said motions could be filed.
Plaintiff correctly points out that meeting the court’s original
May 1, 2013 deadline for expert disclosures was impossible because
defendant initially refused to allow plaintiff and his expert
access to its facilities, and only eventually allowed access after
this court granted plaintiff’s motion to compel.
fails

to

subsequent

explain

why

scheduling

this

gave

orders.

him
The

carte
court

But plaintiff

blanche
extended

to

ignore

discovery

deadlines in its Order of September 17, 2013 (Doc. 31) in which the
motion to compel was granted, and again in its Order of October 28,
2013 (Doc. 42) denying plaintiff’s motion to reconsider the first
opinion.

The resulting discovery deadline was November 4, 2013,

giving the plaintiff nearly seven weeks from the time the court
granted the motion to compel to the time the expert report was due.
Even if that time were insufficient, plaintiff could have moved for
an extension of time before allowing the deadline to elapse.

By

simply attaching the expert report to his summary judgment motion
with no explanation, plaintiff foiled entirely Rule 26's purpose of
“allow[ing] both sides in a case to prepare their cases adequately

6

and [preventing] surprise,” Reeves, 527 F.3d at 1266.
Even were the untimeliness of the expert report justified,
plaintiff does not explain how defendant’s initial refusal to allow
access to its facilities can also explain plaintiff’s failure to
follow the other commands of Rule 26.

Only in response

to

defendant’s motion to strike did plaintiff hurriedly submit a list
of other cases from the past four years in which Biggerstaff has
testified,
publications

and

still

from

the

missing
last

are
10

a

years

list
and

of
a

Biggerstaff’s
statement

of

Biggerstaff’s compensation in this case.
Because plaintiff failed to make the mandatory disclosures
required by Rule 26, the expert report of Biggerstaff will be
stricken and will not be considered by the court for purposes of
these cross-motions.

The court therefore need not address whether

the report is a proper subject of expert testimony under the
Federal Rules of Evidence.2

2

The court will, however, note without decision that it is
unimpressed by the portions of plaintiff’s argument that
gushingly endorse Biggerstaff as “a leading expert in TCPA
cases,” Pl.’s Reply at 21, “the administrator of [a] TCPA
website,” id. at 22, “a frequent commenter on TCPA rules,” id.,
having “qualifications as a TCPA expert [that] cannot reasonably
be questioned,” id., and having “author[ed] and co-authored
articles regarding the TCPA in law reviews and legal journals,”
id. at 23. The court gratefully accepts expert testimony on
factual issues outside the scope of its own expertise, but does
not require experts to help it with legal interpretation and
application of statutes like the TCPA. See Montgomery v. Aetna
Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (“A[n
expert] witness also may not testify to the legal implications of
conduct; the court must be the jury's only source of law.”)
7

B.

Plaintiff’s Deposition Testimony

Defendant

next

deposition testimony.

moves

to

strike

portions

of

plaintiff’s

Under Rule 56(c)(2), F.R. Civ. P., “a party

may object that the material cited to support or dispute a fact
cannot

be

evidence.”

presented

in

a

form

that

would

be

admissible

in

According to defendant, plaintiff cannot testify that

defendant called third parties on the telephone because that
testimony is hearsay.
The court is skeptical that an objection framed in this way is
appropriate at the summary judgment stage.

Defendant’s motion to

strike does not cite with specificity any statement or statements
in plaintiff’s deposition, but instead claims that all evidence
concerning one important factual question, that is, the scope of
defendant’s calls to plaintiff’s relatives and neighbors, must be
excluded as hearsay.

But the fact that defendant made calls to

plaintiff’s relatives and neighbors is not only alleged in the
complaint, Compl. ¶¶ 38-39, 42, but is supported by the admissible
evidence contained in affidavits of two relatives who say they were
called, see Pl.’s Exs. E, F.

This evidence provides the “genuine

dispute as to any material fact,” Rule 56(a), that must be resolved
in the non-moving party’s favor at this stage. A more precise fact

(citation omitted); see also In re Initial Pub. Offering Sec.
Litig., 174 F. Supp. 2d 61, 64 (S.D.N.Y. 2001) (collecting cases
from all 12 circuits supporting “[t]he rule prohibiting experts
from providing their legal opinions or conclusions”).
8

finding on this fact issue must come from the jury, not the court.
And the trial before a jury is a better place and time than here
and now for the court to undertake a line-by-line review of
testimony to screen it for admissibility.
C.

Randall and Honkanen Affidavits
Defendant next argues that the affidavit testimony of Lauren

Randall

and

Mary

Honkanen,

plaintiff’s

daughter

and

sister,

respectively, that defendant placed calls to them must be excluded.
Rule 56(c)(4) provides that “[a]n affidavit or declaration used to
support or oppose a motion [for summary judgment] must be made on
personal

knowledge.”

Defendant

argues

that

the

Randall

and

Honkanen affidavits fail this test because they “fail to state how
these affiants . . . can identify that it was the [d]efendant who
placed these calls.”

Def.’s Mot. to Strike ¶ 11.

Defendant also

claims, without explaining why, that the statements are hearsay.
Id.
Each witness recalls receiving “at least one message on [her]
home telephone answering machine stating the caller was attempting
to contact Charles Hunt and telling [her] to tell Charles Hunt to
call 21st Mortgage.”

Pl.’s Ex. E, ¶ 3; Ex. F, ¶ 3.

“[H]ow these

affiants have personal knowledge of these facts” is obvious to this
court.

Each witness went home, saw a blinking red light on her

answering machine, pressed the “play” button, and listened to the
message. Is defendant’s theory that these messages were only prank

9

calls from a 21st Mtg. imposter?

Or that the witnesses are lying?

Defendant is welcome to advance either theory at trial, but such
arguments raise questions of credibility, not admissibility vel
non.

Both witnesses had “personal knowledge” of what they said

because

their

statements

are

personal

recollections.

The

witnesses’ testimony is not hearsay because plaintiff seeks to
prove only that the messages were left, not the truth of the
information within the messages.

See Fed. R. Evid. 801 advisory

committee’s Note to Subdivision (c) (“If the significance of an
offered statement lies solely in the fact that it was made, no
issue is raised as to the truth of anything asserted, and the
statement is not hearsay.”).
II.

TCPA Claims
With these evidentiary rulings in mind, the court turns to the

merits of plaintiff’s federal claim and pendent state claims.
First is plaintiff’s claim under the TCPA.
47 U.S.C. §§ 227(b)(1) and (b)(3).

The claim arises under

Section (b)(1) provides in

relevant part:
It shall be unlawful for any person within the United
States, or any person outside the United States if the
recipient is within the United States-(A) to make any call (other than a call made for
emergency purposes or made with the prior express consent
of the called party) using any automatic telephone
dialing system or an artificial or prerecorded voice-. . . (iii) to any telephone number assigned to a . . .
cellular telephone service . . . .

10

Section

(b)(3)

provides

a

private

right

of

action

for

each

violation of this statute.
Defendant does not deny that it made calls to plaintiff’s
cellular telephone service, or that it did not have plaintiff’s
express consent or an emergency purpose.

See Def.’s Mot. at 11.

The only dispute is whether the calls were made using an “automatic
telephone dialing system.”

Under the controlling statute, “[t]he

term ‘automatic telephone dialing system’ means equipment which has
the capacity--(A) to store or produce telephone numbers to be
called, using a random or sequential number generator; and (B) to
dial such numbers.”

§ 227(a)(1).

In its Opinion and Order of September 17, 2013 (Doc. 31), this
court joined the Ninth Circuit and a slew of district courts in
holding that the liability question under the statute is whether
telephone equipment used to place a call could possibly be used to
store or produce numbers to be called using a random or sequential
number generator, not whether the equipment was actually used in
such a way to place the call or calls at issue.

See id. at 6-10

(citing, e.g., Satterfield v. Simon & Schuster, Inc., 569 F.3d 946,
951 (9th Cir. 2009)).

However, the court pointed out that this

definition logically must have some outer limit.

Virtually every

telephone in existence, given a team of sophisticated engineers
working doggedly to modify it, could possibly store or produce
numbers

using

a

random

or

sequential
11

number

generator.

Furthermore, given the vast proliferation in recent years of
smartphones with computer operating systems, many personal, noncommercial telephones could in all likelihood achieve automatic
dialing capability by simply downloading an “app.” The TCPA surely
does not mean to define every telephone as an automatic dialing
system, and does not subject every call made to a cell phone to
liability by the caller.

With this in mind, the court held that a

telephone system is only covered by the statute if, at the time the
calls at issue were made, the system had the capacity, without
substantial modification, to store or produce numbers using a
random or sequential number generator.

See id. at 9-10.

But what

constitutes “substantial modification”? Is this a fact question or
a legal question?
The parties agree that the actual telephone system used to
call Mr. Hunt’s cell phone in this case was the Nortel Meridian
Telephone System, Def.’s Facts ¶ 18; Pl.’s Opp’n at 18, and they
appear to agree that the system would have automatic dialing
capability if, but only if, certain software were installed.
Unfortunately, the evidence offered by both parties concerning
whether the software was in fact installed or could have easily
been installed is wiggly and waffly.
testimony

that

has

been

excluded.

Plaintiff relies on expert
See

Pl.’s

Opp’n

at

21.

Defendant, on the other hand, relies entirely on the conclusory,
self-interested testimony of its own employees.
12

See Def.’s Facts

¶¶ 18-23.

And whatever criticism a fact-finder may have of

defendant’s self-interested testimony is enhanced by the fact that
defendant dismantled its system and replaced it with a new system
while the lawsuit of Ms. Hunt, plaintiff’s wife, was pending and
the changes were arguably in response to that suit which was
settled.
19.

See Collins Dep. of August 7, 2013, ECF No. 29-1, at 17-

Furthermore, the dismantled system has not been recreated so

it cannot be examined as it existed while the complained of phone
calls were being made.

Thus, there is and can be no opportunity at

this junction to see the system in action, fully updated with
whatever software defendant chose to install.
In light of these evidentiary shortcomings, both plaintiff and
defendant have come to the conclusion that they win by default.
See Pl.’s Opp’n at 31-32 (“[A]t least, [d]efendant should be
estopped from asserting its former telephone system was not an
automatic telephone dialing system due to its destruction and
concealment of crucial evidence.”); Def.’s Opp’n at 13 (“The
relevant, admissible, undisputed evidence is clear--21st Mtg. did
not have an ‘automatic telephone dialing system’ . . . .”).
court declines to adopt either fatalistic approach.

The

Instead, it

concludes that the proper application of the statute can only be
made by deciding questions of credibility and making reasonable
deductions from the totality of circumstances.

The dispositive

question, then, is whether defendant’s employees are to be believed

13

when they say that the Nortel system, while up and running at the
time defendant made calls to plaintiff’s cell phone, did not
contain and could not be modified to contain automatic dialing
software, or whether there will emerge legitimate doubt about
defendant’s defense after its witnesses are tested by crossexamination and by the surrounding circumstantial evidence.

Of

course there can only be a verdict in favor of plaintiff in the
event the court should deny defendant’s anticipated motion pursuant
to Rule 50(a), F.R. Civ. P.

When that motion is assuredly filed,

the court will have heard all of the evidence.
The making of credibility determinations is, of course, the
exclusive domain of the jury, see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.”), and for that
reason both parties’ summary judgment motions will be denied as to
the TCPA claim.
II.

State Law Claims
In addition to his claim under the TCPA, plaintiff brings four

state

law

claims.

The

court,

exercising

supplemental

jurisdiction,3 must apply the law of Alabama to these claims.
A.

Invasion of Privacy

3

This court’s jurisdiction over the state law claims has not
been raised. The court now notes that it has supplemental
jurisdiction over the state law claims under 28 U.S.C. § 1367.
14

Plaintiff’s first state law claim is for invasion of privacy.
“Alabama has recognized the tort of ‘invasion of the right to
privacy,’” Phillips v. Smalley Maint. Servs., Inc., 435 So. 2d 705,
708 (Ala. 1983)(citations omitted), including “the intrusion upon
the plaintiff's physical solitude or seclusion,” id.

In Alabama,

the “Restatement (Second) of Torts, § 652B (1977), and its Comment,
enunciate

a

clear

and

concise

definition,

and

perimeter, of the ‘wrongful intrusion’ tort.”

establish

the

Id. at 708-09.

Under this definition, a defendant is subject to liability if he
intrudes “upon the solitude or seclusion of another or his private
affairs or concerns . . . if the intrusion would be highly
offensive to a reasonable person.”

Restatement (Second) of Torts

§ 652B (1977); see also Norris v. Moskin Stores, Inc., 272 Ala.
174, 177, 132 So. 2d 321, 323 (1961) (defining the tort as “the
wrongful intrusion into one's private activities in such manner as
to outrage or cause mental suffering, shame or humiliation to a
person of ordinary sensibilities”) (internal emphasis and citation
omitted).
The Alabama courts have not addressed directly whether this
standard is to be applied as a question of law or of fact, but they
appear to treat it as a mixed question following the same general
pattern as negligence law.
determining

whether

protected by the law.

the

The courts perform a gatekeeping role,
alleged

privacy

interest

is

a

type

See, e.g., Johnston v. Fuller, 706 So. 2d

15

700, 702-03 (Ala. 1997) (determining at summary judgment stage that
a claim based on “voluntary interviews in which the defendants
learned information already known to others . . . is not protected
by the limited scope of the wrongful-intrusion branch of the
invasion-of-privacy tort”).

This court finds that defendant’s

telephone calls are of the kind that meet the Alabama definition of
an invasion of privacy.

The jury, however, makes the final

determination of whether a particular intrusion is sufficiently
outrageous or offensive to a reasonable person to create liability.
See Cunningham v. Dabbs, 703 So. 2d 979, 982 (Ala. Civ. App. 1997)
(“[W]e

hold

that

whether

this

conduct

was

severe

enough

to

constitute an invasion of Cunningham's right to privacy is a
question of fact to be determined by a jury.”); K-Mart Corp. v.
Weston, 530 So. 2d 736, 739 (Ala. 1988) (“It was within the jury's
province to conclude that the plaintiff's desire for anonymity had
been interfered with and that the defendant had intruded beyond the
limits of decency.”); Jacksonville State Bank v. Barnwell, 481 So.
2d 863, 866 (Ala. 1985) (“[T]he record raises issues of fact
regarding whether the actions of [the defendant] constituted a
campaign

of

reasonableness,

harassment
giving

and
rise

were
to

beyond

liability

the
for

bounds

of

invasion

of

privacy.”).
Repeated phone calls are one type of intrusion that can be
protected against by Alabama law.

16

The Restatement, adopted as law

by Alabama, specifically notes that repeated phone calls can be an
intrusion, though “only when the telephone calls are repeated with
such persistence and frequency as to amount to a course of hounding
the plaintiff.”

Restatement (Second) of Torts § 652B cmt. d.

In

the debt collection context, the Alabama Supreme Court has held
that “a creditor has a right to take reasonable action to pursue
his debtor and [persuade] payment,” Norris, 272 Ala. 174, 177, but
that the action must be “reasonably related to a legitimate effort
to collect the debt,” id. at 178.

The debt collection effort must

not rise to the level of a “‘systematic campaign’ of harassment,”
id., or “a vicious attempt to coerce payment,” id.

“Twenty-eight

to thirty-five phone calls to one's home and place of employment
fall within the realm of a ‘systematic campaign of harassment.’”
Jacksonville State Bank, 481 So. 2d at 866.
single

letter

written

by

the

On the other hand, “a

defendant-creditor

to

the

plaintiff-debtor's employer merely notifying him of the debt [does]
not constitute an actionable invasion of plaintiff's privacy.”
Norris, 272 Ala. at 177 (citation omitted).

Phone calls are more

likely to be intrusive if the caller uses “coarse, inflammatory,
malicious, and threatening language.” Jacksonville State Bank, 481
So. 2d at 866.
Defendant’s summary judgment motion fails for three reasons.
First, defendant’s calls were arguably more outrageous because
plaintiff was not the debtor.

It was plaintiff’s wife, and not
17

plaintiff, who owed this debt.

It is difficult to imagine that any

effort to extract money from a person who does not owe it is a
“legitimate effort to collect the debt.”

Norris, 272 Ala. at 178.

Second, plaintiff says that defendant called him more than 100
times,

many

more

than

the

28-35

calls

found

sufficient

to

constitute an invasion in Jacksonville State Bank, 481 So. 2d at
866. Finally, plaintiff has alleged that defendant called not only
him, but his neighbors and relatives. This increases the chance of
causing

“shame

or

sensibilities.”

humiliation

to

a

person

of

ordinary

Norris at 177.

Plaintiff’s claim for partial summary judgment seeking a
determination of liability in his favor is equally unavailing. The
exact number of calls made by defendant, as well as the number and
identities of the people who were called, remains in dispute.
Furthermore, defendant has presented evidence that its calls to
plaintiff were part of a back-and-forth dialogue, with plaintiff
calling defendant as often as it called him.
virtually

no

evidence

that

defendant

Finally, there is

used

any

“coarse,

inflammatory, malicious, and threatening language,” Jacksonville
State

Bank,

481

So.

2d

at

866,

and

it

appears

conversations between the parties were mostly civil.

that

the

Given this

context, it will be the task of the jury to resolve the factual
disputes, and to determine ultimately whether defendant’s actions
were of the kind and degree to cause outrage or mental suffering to

18

a person of ordinary sensibilities and, if so, what damages to
award.

Therefore, both parties’ motions for summary judgment will

be denied as to the invasion of privacy claim.
B.

Negligence

Plaintiff next raises a state law claim of negligence.

To

prove negligence in Alabama, plaintiff must show “(1) a duty to a
foreseeable plaintiff; (2) a breach of that duty; (3) proximate
causation; and (4) damage or injury.”

Crowne Investments, Inc. v.

Bryant, 638 So. 2d 873, 878 (Ala. 1994) (citation omitted).

The

court

the

has

proposition

been
that

unable
a

to

legal

find
duty

a

single

exists

to

authority
refrain

for

from

making

irritating phone calls. But even were plaintiff’s negligence claim
recast as a negligence per se claim based on a TCPA violation, or
were a common law duty inferred from the privacy protections of
various related laws, the claim would fail under the damages prong.
“[T]he current state of Alabama law . . . limits recovery for
emotional injury to those plaintiffs who sustain a physical injury
as a result of a defendant's negligent conduct, or who are placed
in immediate risk of physical harm by that conduct.”

AALAR, Ltd.,

Inc. v. Francis, 716 So. 2d 1141, 1147 (Ala. 1998).

In this case,

plaintiff alleges no physical injury or monetary harm, and seeks to
recover only on the basis that “[t]he actions of 21st Mortgage
directly and proximately caused [him] to suffer embarrassment and
humiliation.”

Pl.’s Mot. at 15; see also Hunt Dep. at 150 (“That’s
19

it, just emotional distress.”).

These types of damages cannot

support plaintiff’s negligence claim.
C.

Wantonness

A similar problem prevents plaintiff from going forward on his
wantonness claim.

Wantonness is “the conscious doing of some act

or omission of some duty under knowledge of existing conditions,
while conscious that from the doing of such act or omission of such
duty injury will likely or probably result.”
576

So.

2d

172,

175

(Ala.

1991);

see

Sellers v. Sexton,

Ala.

Code

§

6-11-20

(“[Wantonness is c]onduct which is carried on with a reckless or
conscious disregard of the rights or safety of others.”).

Though

wantonness, once proven, can support a wider range of damages than
negligence, the “injury” prong of the wantonness test mirrors the
negligence definition.

See Terrell v. R & A Mfg. Partners, Ltd.,

835 So. 2d 216, 229-30 (Ala. Civ. App. 2002) (applying Francis in
a

manufacturer

liability

case

to

bar “negligent-and/or-wanton

manufacture” claims based on emotional distress alone); Rawlings v.
Dovenmuehle Mortgage, Inc., 64 F. Supp. 2d 1156, 1168 (M.D. Ala.
1999) (rejecting wantonness claim in mortgage servicing context
because “from the sending of the default notices [that violated a
federal statute] alone, injury was not likely to result”). In this
case, defendant had no reason to expect that “injury [would] likely
or probably result” from phone calls alone, and no physical or
monetary injury did occur. Plaintiff’s claim for wantonness fails.
20

D.

Negligent Hiring and Supervision

Last

is

supervision.

plaintiff’s

claim

for

negligent

hiring

and

Under this purported cause of action, “a master is

held responsible for his servant's incompetency when notice or
knowledge, either actual or presumed, of such unfitness has been
brought to him.”

Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817

So. 2d 665, 682 (Ala. 2001) (citations omitted).

“To sustain a

claim for negligent or wanton hiring or supervision, training
and/or retention, the plaintiff must establish that the allegedly
incompetent employee committed a common-law, Alabama tort.” Leahey
v. Franklin Collection Serv., Inc., 756 F. Supp. 2d 1322, 1328-29
(N.D. Ala. 2010)(citations and quotation marks omitted). Thus, the
tort

of

negligent

hiring

or

supervision

is

not

an

entirely

independent tort, but a somewhat bizarre extension of the doctrine
of respondeat superior, seeking to hold a principal liable for the
actions of its agent even when acting outside the scope of his
employment.
(Ala.

2010)

respondeat

See Jones Exp., Inc. v. Jackson, 86 So. 3d 298, 304-09
(comparing
superior

negligent

and

hiring

rejecting

and

argument

supervision
that

with

defendant

corporation could be liable of “‘independent’ tort” of negligent
hiring when jury verdict had found no liability by the employee).
In this case, defendant has not argued that its employees acted
outside the scope of their employment. Instead, defendant concedes
that all of the actions complained of were its actions. See, e.g.,
21

Def.’s Ex. B4 (using official company “Financial Counselor Notes”
as evidence of all calls made).

For that reason, the action of any

employee who may have invaded plaintiff’s privacy is attributed to
defendant, so that the claim for negligent hiring and supervision
is redundant and due to be dismissed.
Conclusion
For

all

the

foregoing

reasons,

the

three

motions

under

consideration in this opinion are here being decided or will be
separately decided as follows:
Defendant’s motion to strike is GRANTED as to the expert
report of Robert Biggerstaff, but DENIED as to the deposition
testimony of plaintiff and the affidavit testimony of Lauren
Randall and Mary Honkanen.
Defendant’s motion for summary judgment will by separate order
be denied as to plaintiff’s TCPA claim and his invasion of privacy
claim, but granted as to his negligence, wantonness, and negligent
hiring and supervision claims.
Plaintiff’s motion for summary judgment will be denied by
separate order.
DONE this 4th day of February, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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