Lee v. Gulf Coast Collection Bureau, Inc.
Filing
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ORDER denying 22 Motion for summary judgment. Signed by Judge Susan C Bucklew on 12/10/2014. (JD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
STANLEY W. LEE,
Plaintiff,
v.
Case No.: 8:13-cv-2276-T-24-MAP
GULF COAST COLLECTION
BUREAU, INC.,
Defendant.
_______________________________/
ORDER
This cause comes before the Court on Defendant’s Motion for Summary Judgment.
(Doc. No. 22). Plaintiff opposes the motion. (Doc. No. 24). As explained below, the motion is
denied.
I. Standard of Review
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). The Court must draw all inferences from the evidence in the light most favorable to the
non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d
1315, 1320 (11th Cir. 2006)(citation omitted). The moving party bears the initial burden of
showing the Court, by reference to materials on file, that there are no genuine issues of material
fact that should be decided at trial. See id. (citation omitted). When a moving party has
discharged its burden, the non-moving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and admissions on file, designate
specific facts showing there is a genuine issue for trial. See id. (citation omitted).
II. Background
This case involves debt collection communications made by Defendant Gulf Coast
Collection Bureau, Inc. to Plaintiff Stanley Lee. The following is a brief description of the facts,
which are not well-explained by the parties.1
Plaintiff went to Sarasota Memorial Hospital (“SMH”) for treatment on several
occasions. On July 22, 2011, September 1, 2011, and May 16, 2012, Plaintiff signed a form
titled, “General Consent and Financial Agreement,” which states in pertinent part that he: (1)
acknowledged receipt and understanding of the form and the information sheet;2 and (2) agreed
to the terms contained in the information sheet, including “Patient Information (Release and
Information for . . . payment). (Doc. No. 22-2, p. 7-9). On July 22, 2011, January 10, 2012, and
May 22, 2012, Plaintiff provided his cell phone number (ending in 0930) to SMH in connection
with his treatment. (Doc. No. 22-2, p. 10-12; Doc. No. 22-2, depo. p. 34, 43).
At some point, SMH transferred Plaintiff’s information, including his cell phone number,
to Defendant in order for Defendant to collect Plaintiff’s medical debt(s). (Doc. No. 23-1, ¶ 7, 8;
Doc. No. 38, ¶ 4). Defendant contacted Plaintiff on his cell phone, and Plaintiff told Defendant
to stop calling his cell phone, but Defendant’s calls continued. (Doc. No. 24-2).
On June 27, 2013, Plaintiff sent Defendant a letter stating the following: “I dispute this
1
The parties do not explain what medical services gave rise to the debt(s) at issue, nor do
they identify on which service dates the medical services were provided. There are two
collection letters that were attached to the complaint that identify seven medical debts (Doc. No.
34), but Plaintiff states in his Statement of Facts that he had 21 different medical debts (Doc. No.
24-1, ¶ 5). Thus, the debts at issue and the facts regarding those debts are not well-explained by
the parties.
2
Neither party has submitted the information sheet to the Court.
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debt. Please do not contact me again regarding this or any other debt your company may have or
may obtain in my name. Instead contact my legal representative W. John Gadd.” (Doc. No. 1, p.
5). Plaintiff listed Gadd’s address in the letter. (Doc. No. 1, p. 5).
On August 23, 2013, Plaintiff sent another letter to Defendant, stating:
I expressly revoke any consent I may have given to contact me by
phone. I’m expressly asking that all calls be stopped and reduced to
writing. ALL contact regarding this or any alleged debt or personal
business matter you may have or may obtain in my name should be
sent to my legal representative W. John Gadd . . . . Do no[t] contact
me any further.
(Doc. No. 22-2, p. 13). Again, Plaintiff listed Gadd’s address in the letter. (Doc. No. 22-2, p.
13).
Despite Plaintiff’s letters, in July and August of 2013, Defendant sent two collection
letters to Plaintiff that indicate that Plaintiff owed money for services provided on seven
different dates in 2012 (five debts owed to SMH, one debt owed to Dr. Charles Loewe, and one
debt owed to Sarasota ER Physicians). (Doc. No. 34).
On September 3, 2013, Plaintiff filed suit against Defendant for violating the Florida
Consumer Collection Practices Act (“FCCPA”) and the Telephone Consumer Protection Act
(“TCPA”). Specifically, Plaintiff contends that Defendant violated the FCCPA by: (1) willfully
communicating with him with such frequency as can reasonably be expected to harass him (in
violation of Florida Statute § 559.72(7)); and (2) communicating with him directly after learning
that he was represented by an attorney (in violation of Florida Statute § 559.72(18)).
Additionally, Plaintiff contends that Defendant violated the TCPA by using an automatic
telephone dialing system (“ATDS”) to make debt collection calls to his cell phone without his
consent (in violation of 47 U.S.C. § 227(b)(1)(A)(iii)). Defendant now moves for summary
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judgment on Plaintiff’s TCPA claim.
III. Motion for Summary Judgment
The TCPA, pursuant to 47 U.S.C. § 227(b)(1)(A)(iii), provides that “[i]t shall be
unlawful for any person . . . 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 . . . to any telephone number assigned to a . . . cellular telephone service.” Defendant
violated the TCPA if it: (1) made a call using an ATDS; (2) the call was not made for emergency
purposes; (3) the call was made without Plaintiff’s prior express consent; and (4) the call was
made to a telephone number assigned to Plaintiff’s cellular telephone service.
Defendant moves for summary judgment on Plaintiff’s TCPA claim, arguing that there
could be no TCPA violation, because the calls were made with Plaintiff’s prior express consent.
As explained below, genuine issues of material fact exist that preclude summary judgment on
Plaintiff’s TCPA claim.
The FCC has the authority to make rules and regulations necessary to carry out the
TCPA. See Mais v. Gulf Coast Collection Bureau, Inc., 2014 WL 4802457, at *5 (11th Cir.
Sept. 29, 2014). In 2008, the FCC issued the following ruling regarding the prior express
consent exception to TCPA liability:
Although the TCPA generally prohibits autodialed calls to wireless
phones, it also provides an exception for autodialed and prerecorded
message calls . . . made with the prior express consent of the called
party. Because we find that autodialed and prerecorded message calls
to wireless numbers provided by the called party in connection with
an existing debt are made with the “prior express consent” of the
called party, we clarify that such calls are permissible. We conclude
that the provision of a cell phone number to a creditor, e.g., as part of
a credit application, reasonably evidences prior express consent by
the cell phone subscriber to be contacted at that number regarding the
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debt. In the 1992 TCPA Order, the Commission determined that
“persons who knowingly release their phone numbers have in effect
given their invitation or permission to be called at the number which
they have given, absent instructions to the contrary.”
*
*
*
We emphasize that prior express consent is deemed to be granted
only if the wireless number was provided by the consumer to the
creditor, and that such number was provided during the transaction
that resulted in the debt owed. To ensure that creditors and debt
collectors call only those consumers who have consented to receive
autodialed and prerecorded message calls, we conclude that the
creditor should be responsible for demonstrating that the consumer
provided prior express consent. The creditors are in the best position
to have records kept in the usual course of business showing such
consent, such as purchase agreements, sales slips, and credit
applications. Should a question arise as to whether express consent
was provided, the burden will be on the creditor to show it obtained
the necessary prior express consent. . . . Calls placed by a third party
collector on behalf of that creditor are treated as if the creditor itself
placed the call.
In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of
1991, 2008 WL 65485, at *3 (F.C.C. Jan. 4, 2008)(“2008 FCC Ruling”)(footnotes omitted). In a
footnote, the FCC noted that “prior express consent provided to a particular creditor will not
entitle that creditor (or third party collector) to call a consumer’s wireless number on behalf of
other creditors, including on behalf of affiliated entities.” Id. at n.38.
Defendant argues that it called Plaintiff’s cell phone with Plaintiff’s prior express
consent, as shown by his provision of his cell phone number to SMH. Defendant, however, has
failed to connect: (1) the provision of Plaintiff’s cell phone number to SMH on a specific date,
(2) to a specific medical service provided by SMH, (3) for which Plaintiff failed to pay, and (4)
for which Defendant called Plaintiff’s cell phone. It is unclear what medical debts were the basis
of Defendant’s calls to Plaintiff’s cell phone. It is also unclear whether the debts were owed to
SMH, as opposed to an affiliated doctor or entity.
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The evidence before the Court shows that on July 22, 2011, January 10, 2012, and May
22, 2012, Plaintiff provided his cell phone number to SMH in connection with his treatment. To
the extent that Defendant can show at trial that Plaintiff’s treatment on those dates resulted in
debts owed to SMH for which Defendant called Plaintiff’s cell phone (prior to any revocation of
consent in the summer of 2013), those calls would not violate the TCPA due to Plaintiff’s
provision of his cell phone number evidencing his prior express consent. See Moise v. Credit
Control Services, Inc., 950 F. Supp.2d 1251, 1253 (S.D. Fla. 2011)(stating that if the plaintiff
provided his cell phone number directly to Quest Diagnostics, then the defendant would have
had the plaintiff’s express consent to call his cell phone regarding the debt owed to Quest
Diagnostics); Penn v. NRA Group, LLC, 2014 WL 2986787, at *3 (D. Md. July 1, 2014)(stating
that because the plaintiff provided his cell phone number to the hospital in connection with the
medical treatment that resulted in the debt that he was called about, the defendant lawfully called
the plaintiff’s cell phone with his prior express consent). Such evidence would show that
Plaintiff provided his cell phone number during the transaction that resulted in the debt owed and
for which his cell phone was called. However, because such evidence is not currently before the
Court, Defendant’s motion for summary judgment must be denied.
Defendant makes three additional/alternative arguments. First, Defendant argues that
Plaintiff did not revoke his prior express consent to be called on his cell phone until he sent the
August 23, 2013 letter. Thus, Defendant argues, without citation to authority, that Plaintiff did
not revoke his prior express consent via his June 27, 2013 letter. However, the Court is not
willing to reach an argument that is not properly briefed. Defendant (along with Plaintiff) should
brief this issue (with citations to authority) and include it within the parties’ pretrial statement.
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Second, Defendant argues that the only communications that occurred after Plaintiff’s
June 27, 2013 letter were two communications that were required under the Fair Debt Collection
Practices Act. Again, Defendant failed to support this argument with citations to authority, and
the Court is not willing to reach an argument that is not properly briefed. Defendant (along with
Plaintiff) should brief this issue (with citations to authority) and include it within the parties’
pretrial statement.
Third, Defendant argues that at the very least, it is not liable under the TCPA for any
calls made before Plaintiff’s June 27, 2013 letter. This argument has already been addressed
(with respect to Defendant’s prior express consent argument), with the Court finding that
genuine issues of material fact preclude summary judgment.
IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion for Summary
Judgment (Doc. No. 22) is DENIED.
DONE AND ORDERED at Tampa, Florida, this 10th day of December, 2014.
Copies to: All parties and Counsel of Record
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