Friend v. Taylor Law, PLLC
Filing
98
OPINION AND ORDER GRANTING 69 MOTION for Reconsideration by Defendant Taylor Law PLLC and DENYING 70 MOTION to Dismiss for Lack of Jurisdiction by Defendant Taylor Law PLLC. The Court GRANTS summary judgment in favor of Defendant Taylor Law on Count V and DIRECTS the Clerk of Court to enter judgment in favor of Defendant Taylor Law on Count V. Any party wishing to assert that Friend has standing for Count IV of the Amended Complaint may file a brief on the subject by 11/12/2021, to which a response and a reply may be filed under the deadlines set by Northern District of Indiana Local Rule 7-1(d)(3). If no brief is filed, the Court will vacate the judgment as to that count only and dismiss it without prejudice for lack of standing. Signed by Judge Joseph S Van Bokkelen on 10/27/2021. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
RUSSELL FRIEND,
Plaintiff,
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v.
TAYLOR LAW, PLLC,
Defendant.
CAUSE NO.: 4:17-CV-29-JVB-JPK
OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for Reconsideration Pursuant to
Fed. R. Civ. P. 60(b) [DE 69] and on Defendant’s Motion to Dismiss Plaintiff’s Count I of His
Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) [DE 70], both of which were filed on June 10,
2021. Plaintiff Russell Friend filed a response to the motion to dismiss on August 3, 2021, and
Defendant Taylor Law, PLLC filed a reply on August 10, 2021.
PROCEDURAL BACKGROUND
Friend initiated this cause of action on April 14, 2017, by filing a Complaint, in which he
alleged that Taylor Law violated the Fair Debt Collection Practices Act (FDCPA). An Amended
Complaint followed on May 15, 2017, adding allegations of a violation of the Telephone
Consumer Protection Act (TCPA).
Friend alleges that he sent a letter to Taylor Law demanding that Taylor Law cease
communication with Friend other than a few specific excepted communications, after receipt of
which Taylor Law continued to make unexcepted communications. Taylor Law also sued Friend
to collect a debt Friend did not owe, making false representations in the process and causing Friend
to have anxiety, stress, and loss of sleep.
Friend alleges that Taylor Law violated 15 U.S.C. § 1692c(c) by contacting Friend after he
sent Taylor Law a written demand not to contact him (Count I), 15 U.S.C. § 1692f(1) by attempting
to collect a debt from Friend that Friend did not owe (Count II), 15 U.S.C. § 1692e by suing Friend
to collect a debt that Friend did not owe (Count III), 15 U.S.C. § 1692g by failing to provide the
written notice required when a debt collector begins to collect a debt (Count IV), and 47 U.S.C.
§ 227 by calling Friend with an automatic telephone dialing service or pre-recorded voice
(Count V).
On December 18, 2020, the Court issued an Opinion and Order granting summary
judgment in favor of Friend as to Count I, granting summary judgment in favor of Taylor Law as
to Counts II, III, and IV, and denying summary judgment as to Count V. The Court first found in
favor of Friend on Count I and then found that Friend conceded to not being entitled to recovery
on Count II (due to recovering on Count I) and that Friend abandoned his claims in Counts II, III,
and IV. Finally, the Court found that a genuine issue of material fact existed concerning whether
Taylor Law used an automatic telephone dialing service.
On June 1, 2021, Taylor Law filed the instant motion for reconsideration as to the denial
of summary judgment on Count V, arguing that recent Supreme Court jurisprudence resolves the
merits of that count. On the same day, Taylor Law also filed the instant motion to dismiss, arguing
that Friend does not have Article III standing for his Count I claim. Friend filed a response to the
motion to dismiss but not to the motion for reconsideration. Taylor Law replied to the response.
ANALYSIS
A. Motion for Reconsideration
Federal Rule of Civil Procedure 60(b) provides that the court may relieve a party from an
order for any reason that justifies relief. Here, the Court denied Taylor Law’s request for summary
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judgment on Count V, but new jurisprudence from the Supreme Court of the United States counsels
that summary judgment should have been granted. This is a basis for granting reconsideration. See
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990).
In Count V, Friend alleged that Taylor Law violated the TCPA, 47 U.S.C. § 227(b), by
calling him with an automatic dialing system. The relevant provision prohibits calls made with
“any automatic telephone dialing system” to a “cellular telephone service . . . or any service for
which the called party is charged for the call.” 47 U.S.C. § 227(b)(1). An automated telephone
dialing system is one that can “store or produce telephone numbers to be called, using a random
or sequential number generator.” § 227(a)(1).
The Supreme Court, in Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021), held that “using
a random or sequential number generator” modified “store” in addition to “produce.” Id. at 1167.
That is, “[t]o qualify as an ‘automatic telephone dialing system,’ a device must have the capacity
either to store a telephone number using a random or sequential generator or to produce a telephone
number using a random or sequential number generator.” Id.
Taylor Law has submitted a declaration by Laurence Siegel, Executive Vice President of
Product Development for LiveVox, Inc. In the declaration, Siegel declared under penalty of
perjury that none of LiveVox’s systems has ever had the capacity to use a random or sequential
number generator to either store telephone numbers or produce telephone numbers to be called.
(Siegel Decl. ¶ 5, ECF No. 69-2). Friend has not challenged Siegel’s declaration or presented any
new evidence on the issue. When the Court initially decided the issue, the evidence was the
deposition testimony of Taylor Law’s Rule 30(b)(6) representative, who testified to not knowing
much about the LiveVox system and to not knowing whether the calls to Friend were made using
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an automatic telephone dialing system, although he stated “I think the answer’s no.” (Alphin Dep.
173:11, ECF No. 42-4); see also (Op. & Order 10-11, ECF No. 62).
Accordingly, in light of the Facebook, Inc. v. Duguid decision, Siegel’s declaration, and
the lack of response by Friend, the Court finds reconsideration to be proper and, on reconsideration,
determines that no genuine issue of material fact exists as to whether Taylor Law used an automatic
telephone dialing system as that term is defined in 47 U.S.C. § 277 and, thus, that Taylor Law is
entitled to judgment as a matter of law on Count V. The Court grants the motion to reconsider.
B. Motion to Dismiss
Taylor Law argues that Count I should be dismissed under Federal Rule of Civil Procedure
12(b)(1) for lack of Article III standing. For Article III standing to be present, the plaintiff must
have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016), as revised (May 24, 2016).
Injury in fact must be concrete and particularized; the former means the injury is real, not
abstract (though a risk of harm can be concrete), and the latter means the injury must affect the
plaintiff in a personal and individual way. Pennell v. Global Trust Mgmt, LLC, 990 F.3d 1041,
1044 (7th Cir. 2021).
As the litigation progresses, the way in which the plaintiff demonstrates standing
changes. Initially, a plaintiff may demonstrate standing by clearly pleading
allegations that plausibly suggest each element of standing when all reasonable
inferences are drawn in the plaintiff’s favor. But if a plaintiff’s standing is
questioned as a factual matter—for example, in a motion to dismiss under Rule
12(b)(1)—the plaintiff must supply proof, by a preponderance of the evidence or to
a reasonable probability, that standing exists. Once the action reaches the summaryjudgment stage, the plaintiff must demonstrate standing by setting forth by affidavit
or other evidence specific facts that, taken as true, support each element of standing.
Finally, if those facts are later controverted, the plaintiff must adequately support
them with evidence adduced at trial.
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Spuhler v. State Collection Serv., Inc., 983 F.3d 282, 285 (7th Cir. 2020) (citations, quotation
marks, and alteration marks omitted). Here, the case is at the summary judgment stage, and “[t]he
standard for demonstrating the jurisdictional facts at summary judgment is whether the plaintiffs
have supplied evidence of ‘specific facts’ that, taken as true, show each element of standing.” Id.
(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
In Count I, Friend alleged that Taylor Law continued to contact him after Friend’s demand
to stop, in violation of 15 U.S.C. § 1692c(c). In ruling on summary judgment, the Court found that
a question of fact remained for the jury regarding phone calls made to Friend but also found that
no genuine issue of material fact remained and Friend was entitled to summary judgment as a
matter of law on Count I due to a letter sent to him by Taylor Law. Taylor Law would have the
Court consider only whether Friend has standing regarding the letter, but that position is incorrect.
If Friend does not have standing regarding the letter, then summary judgment in Friend’s favor on
Count I would not be appropriate, but whether the phone calls violated the FDCPA as alleged in
Count I would be an issue for trial, provided Friend has standing regarding the phone calls.
However, as the Court discusses below, Friend has standing regarding the letter so the Court will
not disturb the judgment entered in Friend’s favor on Count I.
Friend alleged that Taylor Law’s contacts with Friend “caused him anxiety, loss of sleep,
and stress.” (Am. Compl. ¶ 60, ECF No. 6). However, at this post-summary-judgment stage of
litigation, the Court looks beyond the allegations because even if the Amended Complaint
“omitted essential jurisdictional allegations, but evidence later demonstrates that the court has
jurisdiction, the deficiency in the complaint is not fatal.” Spuhler, 983 F.3d at 285 (quoting Casio,
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Inc. v. S.M. & R. Co., 755 F.2d 528, 530 (7th Cir. 1985); citing Fed. R. Civ. P. 15(a)(2)) (quotation
marks omitted). 1
By affidavit, Friend has produced evidence that Taylor Law’s communications with Friend
“often times” caused him to lose focus and get a headache or migraine. (Friend Aff. ¶ 11, ECF No.
93-1). He also found himself unable to sleep on many nights due to the stress caused by “dealing
with Taylor Law.” Id. ¶ 12. Friend’s muscle relaxer medication was increased after Friend became
more tense when dealing with Taylor Law. Id. ¶ 14; see also (Friend Dep. 113:2-9, ECF No. 71-1).
Taylor Law contends that Friend must show that he took a detrimental step as a result of
the alleged actions that violate the FDCPA. However, the case cited for this proposition, Pennell,
merely holds that a detrimental step is required for confusion to be a concrete injury. 990 F.3 at
1045. (“For the alleged injury to be concrete, a plaintiff must have acted ‘to her detriment, on that
confusion.’” (quoting Brunett v. Convergent Outsourcing, Inc., 982 F.3d 1067, 1068 (7th Cir.
2020)) (emphasis added)). Here, the purported injury includes anxiety, stress, loss of sleep, loss of
focus, headache/migraine, and increased muscle tension requiring an increase of medication.
These injuries, especially the loss of sleep, headache/migraine, and muscle tension (including a
medication increase), are concrete and particularized. Friend has presented evidence,
uncontradicted by Taylor Law, that shows injury in fact.
The next element of standing is that the injury in fact be fairly traceable to the challenged
conduct. The challenged conduct is Taylor Law’s alleged continued communication with Friend
The Court is aware that the Seventh Circuit Court of Appeals in Pennell stated that “allegations matter.” 990 F.3d at
1045. Both Spuhler and Pennell were appealed to the circuit court after decisions on summary judgment. It appears
that this statement in Pennell, which on first blush seems to contradict Spuhler, intends to indicate that an entirely new
theory of standing premised on a different category of injury than that presented in the complaint will not be
entertained on appeal. See id. (“On appeal she cannot broaden her complaint by inserting a new injury.”). This
reconciliation of the cases is consistent with Spuhler’s citation to Federal Rule of Civil Procedure 15(a)(2), which
governs the amendment of pleadings at the district court level. This case has not yet reached the appellate stage, so
Spuhler continues to guide the Court’s analysis. Further, the Court resolves the issue of standing in Friend’s favor
without needing to decide whether it can consider his newly asserted injury through the invasion of his privacy.
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after Friend sent a written demand to cease such communication. Regarding Taylor Law’s October
6, 2016 letter, records from a medical appointment less than three weeks later on October 26, 2016,
report generalized muscle aches and weakness as well as tenderness and trigger points bilaterally
in Friend’s lower back. (Mot. Dismiss Ex. B at 19, 21, ECF No. 70-1). Friend was started on
baclofen and tizanidine at that appointment. 2 Id. at 22. Taken as true and combined with Friend’s
affidavit and deposition testimony, this supports Friend’s contention that his injury of increased
muscle tension requiring increased medication is fairly traceable to Taylor’s letter.
Finally, regarding the third element of standing, Friend’s injury can be redressed by the
damages he requested in his Amended Complaint.
Accordingly, because Friend has met his burden to show the three elements of standing,
the Court denies Taylor Law’s motion to dismiss Count I for lack of standing.
The Court has inspected the remaining counts of the Amended Complaint and sua sponte
raises the question of whether Friend has standing to bring Count IV for an alleged violation of 15
U.S.C. § 1692g by failing to provide the written notice required when a debt collector begins to
collect a debt. The Court will provide the parties with an opportunity to brief this issue.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS Defendant’s Motion for
Reconsideration Pursuant to Fed. R. Civ. P. 60(b) [DE 69] and DENIES Defendant’s Motion to
Dismiss Plaintiff’s Count I of His Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) [DE 70]. The
Court GRANTS summary judgment in favor of Defendant Taylor Law on Count V and DIRECTS
the Clerk of Court to enter judgment in favor of Defendant Taylor Law on Count V.
Baclofen and Tizanidine are skeletal muscle relaxants. Baclofen, MedlinePlus, https://medlineplus.gov/druginfo/
meds/a682530.html (last visited Oct. 27, 2021); Tizanidine, MedlinePlus, https://medlineplus.gov/druginfo/meds/
a601121.html (last visited Oct. 27, 2021).
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Any party wishing to assert that Friend has standing for Count IV of the Amended
Complaint may file a brief on the subject by November 12, 2021, to which a response and a reply
may be filed under the deadlines set by Northern District of Indiana Local Rule 7-1(d)(3). If no
brief is filed, the Court will vacate the judgment as to that count only and dismiss it without
prejudice for lack of standing.
SO ORDERED on October 27, 2021.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN, JUDGE
UNITED STATES DISTRICT COURT
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