Webb et al v. Premiere Credit of North America, LLC

Filing 46

MEMORANDUM AND ORDER granting 40 Motion for Summary Judgment. Defendant's request for fees and costs is denied. Signed by District Judge Julie A. Robinson on 10/22/2012. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID WEBB, and MELISSA WEBB,
Plaintiffs,
v.
PREMIERE CREDIT OF NORTH
AMERICA, LLC,
Defendant.

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Case No. 12-CV-2001 JAR/KGS

MEMORANDUM AND ORDER
Plaintiffs David and Melissa Webb bring this action against Defendant Premier Credit of
North America, LLC (“Premiere Credit”), alleging violations of the Fair Debt Collection
Practices Act (“FDCPA”).1 This case comes before the Court on Defendant’s Motion for
Summary Judgment (Doc. 40), which includes a request for attorneys’ fees and costs. The
motion is fully briefed and the Court is prepared to rule. For the reasons stated below, the Court
grants summary judgment but denies Defendant’s request for attorneys’ fees and costs.
I.

Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no

genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.”2
In applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.3 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a

1

15 U.S.C. §§ 1692–1692p.

2

Fed. R. Civ. P. 56(a).

3

City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

reasonable jury could return a verdict for the nonmoving party.”4 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”5 An issue
of fact is “genuine” if “‘the evidence is such that a reasonable jury could return a verdict for the
non-moving party.’”6
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.7 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out a lack of evidence for the other party on an essential
element of that party’s claim.8
Once the movant has met this initial burden, the burden shifts to the nonmoving party to
show that there is a genuine issue for trial.9 The nonmoving party may not simply rest upon its
pleadings to satisfy its burden.10 Rather, the nonmoving party must “set forth specific facts that
would be admissible in evidence in the event of trial from which a rational trier of fact could find

4

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

5

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
6

Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
7

Spaulding v. United Trasp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986)).
8

Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
9

Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
10

Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

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for the nonmovant.”11 To accomplish this, the facts “must be identified by reference to an
affidavit, a deposition transcript, or a specific exhibit incorporated therein.”12 Rule 56(c)(4)
provides that opposing affidavits must be made on personal knowledge and shall set forth such
facts as would be admissible in evidence.13 The non-moving party cannot avoid summary
judgment by repeating conclusory opinions, allegations unsupported by specific facts, or
speculation.14
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”15 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”16
II.

Uncontroverted Facts
The following facts are either uncontroverted, stipulated to, or viewed in the light most

favorable to Plaintiff. Prior to this lawsuit, Plaintiff Melissa Webb incurred a debt for a student
loan to ITT Tech. Upon default of the debt with the creditor, the debt was transferred to
Defendant, Premiere Credit, for collection purposes. Defendant initiated 150 telephone calls

11

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.
12

Adams, 233 F.3d at 1246.

13

Fed. R. Civ. P. 56(c)(4).

14

Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation

omitted).
15

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).

16

Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

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between June 1, 2011, and January 4, 2012, to Melissa Webb to discuss her debt. Calls often
took place on continuous days with as many as six calls per day. Plaintiffs received phone calls
between 8:00 a.m. and 9:00 p.m. on all days except Sunday. Plaintiff David Webb did not
receive any phone calls from Defendant and never spoke with Defendant.
Plaintiffs maintained a call log for some of the calls they received that included the date
of the calls, the time of the calls, and the telephone number displayed on the caller ID. The call
log lists calls from different phone numbers and creditors. Plaintiffs did not record all calls from
Defendant on their call log. Plaintiffs neither called Premiere Credit nor communicated in
writing to Premiere Credit. Plaintiffs never paid Premiere Credit. Premiere Credit indicated on
its own call logs that some calls were withdrawn, but those logs do not distinguish between
withdrawn calls that caused Plaintiffs’ telephone to ring and those that did not.
Plaintiffs claim that they received several phone calls per day over a number of months
from Defendant, causing them emotional distress, stress, and anxiety. Neither Plaintiff received
medical treatment, psychological treatment, or medication for their alleged damages. Plaintiffs
testified that they received telephone calls from other collection agencies in addition to Premiere
Credit, and that these other calls could have contributed to their emotional distress.
III.

Discussion
Plaintiffs contend that Defendant violated the FDCPA, specifically 15 U.S.C. §1692d(5).

Plaintiffs further claim that, as a result of Defendant’s FDCPA violation, they are entitled to
actual damages under 15 U.S.C. § 1692k(a)(1). Defendant argues that there is no evidence to
establish that it intended to harass, abuse, or annoy Plaintiffs in seeking to collect Melissa

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Webb’s debt, and that there is no evidence of emotional distress sufficient to establish that actual
damages are warranted. Defendant also seeks attorneys’ fees and costs under the statute.
A.

15 U.S.C. § 1692d(5)

15 U.S.C. § 1692d provides that “[a] debt collector may not engage in any conduct the
natural consequence of which is to harass, oppress, or abuse any person in connection with the
collection of a debt.” Further, § 1692d(5) prohibits the debt collector from “[c]ausing a
telephone to ring or engaging any person in telephone conversation repeatedly or continuously
with intent to annoy, abuse, or harass any person at the called number.”
Defendant claims that there is no evidence to show that Defendant harassed, abused, or
annoyed Plaintiffs by making a high volume of phone calls in violation of the FDCPA.
Defendant also argues that Plaintiffs fail to produce any evidence that Defendant engaged in
other egregious conduct that would give rise to a finding of intent to annoy, abuse, or harass.
Plaintiffs allege that a material issue of fact remains as to the number of times the Defendant
caused the Plaintiffs’ telephone to ring and whether it was done with intent to annoy, abuse or
harass.
In deciding a motion for summary judgment, the Court considers the volume and pattern
of the calls by the debt collector to the plaintiff.17 A high volume of calls, even daily calls,
unaccompanied by other egregious conduct is insufficient to raise a triable issue of fact for the
jury.18 Other egregious conduct may include calling after immediately hanging up, calling
multiple times in a single day, calling places of employment, calling family or friends, calling at

17

Carman v. CBE Group, Inc., 782 F. Supp. 2d 1223, 1229–31 (D. Kan. 2011).

18

Id.

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odd hours, or calling after being asked to stop.19 For example, in Tucker v. CBE Group, Inc., 57
calls were made by the debt collector to the plaintiff over an undetermined period of time,
including seven calls in one day.20 The Middle District of Florida found this to be insufficient to
constitute a triable issue of fact because the defendant never spoke to the plaintiff, was never
asked to stop calling, and never called back the same day after leaving a message.21 Similarly, in
Saltzman v. I.C. Systems, Inc., 22 the debt collector unsuccessfully called the plaintiff 20 to 50
times in one month.23 The court granted summary judgment for the defendant, holding that
difficulty reaching the plaintiff is not the same as intent to harass.24
In this case, the Court finds there is no evidence of an unacceptable pattern of calls. The
record lacks any indicia of the type of egregious conduct that would raise an issue of triable fact
when coupled with a high call volume. Plaintiffs argue that a genuine issue of fact remains as to
the number of times Defendant caused the telephone to ring. They point to evidence that
telephone calls were initiated up to six times per day on consecutive days in November and
December of 2011, as evidence of an intent to annoy, abuse, or harass. However, as stated in
Carman, there must be other evidence of egregious conduct to evince an intent to annoy, abuse,
or harass.25 Here, even though the number of initiated calls appears high between November and
19

Id.

20

710 F. Supp. 2d 1301 (M.D. Fla. 2010).

21

Id.

22

No. 09-10096, 2009 WL 3190359, at * 6–7 (E.D. Mich. Sept. 30, 2009).

23

Id.

24

Id.

25

782 F. Supp. 2d at 1232.

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December, without the presence of any other egregious conduct, no genuine issue of fact remains
as to whether the conduct was done with the intent to annoy, abuse, or harass. Viewing the
evidence in the light most favorable to Plaintiffs, Defendant initiated 150 telephone calls. But
since a high volume of calls without other egregious conduct does not constitute a triable issue of
fact on intent under § 1692d(5), Plaintiff’s focus on the volume of calls is unavailing.
Plaintiffs also point to their testimony that Defendant’s telephone calls caused them
stress and anxiety, but in Carman, this Court held “[Plaintiff’s] opinion regarding whether the
calls were harassing is not evidence of [Defendant’s] intent.”26 Without evidence of additional
egregious conduct, there is no genuine issue of material fact as to whether Defendant had the
intent to annoy, abuse, or harass. It is uncontroverted that Defendant’s intent in contacting
Plaintiffs was to discuss the debt owed. Calls never took place on Sunday and did not occur
during unacceptable hours. Plaintiffs allege that more than one voice mail message may have
been left for Melissa Webb, but there is no evidence that Defendant called back on the same day
that voice message was left. For example, Defendant’s call log shows that after Defendant “left
a message to call” on June 11, 2011, no other calls were placed that day. There is no evidence
that Plaintiffs ever requested that Defendant stop calling, and Plaintiffs never disputed the debt at
issue. There is no evidence of deliberate “hang up” calls by Defendant. And, finally, there is no
evidence that Defendant called back after speaking with Plaintiffs or after Plaintiffs terminated a
call.
Viewing the evidence in the light most favorable to the Plaintiffs, there is no genuine
dispute as to any material fact as to whether Defendant’s phone calls to Plaintiffs demonstrate an
26

Id.

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intent to annoy, abuse or harass in violation of § 1692d(5). Therefore, summary judgment is
granted on this claim.
Given the Court’s finding that Defendant did not violate 15 U.S.C. § 1692d(5), it need
not determine whether Plaintiffs suffered actual damages under 15 U.S.C. §1692k.27
B.

Fees and Costs

Premiere Credit seeks an award of attorneys’s fees and costs under Fed. R. Civ. P. 11, 28
U.S.C. § 1927, 15. U.S. § 1692k(a)(3), and Fed. R. Civ. P. 54(d)(1). A party seeking Rule 11
sanctions must satisfy the procedural requirements of Rule 11(c)(2), commonly known as the
“safe harbor” provision. Rule 11 sets forth mandatory requirements that a moving party must
meet before a court is permitted to order sanctions.28 The moving party must submit the motion
for sanctions separate and apart from any other motion or request.29 The moving party must
serve the motion on the opposing party.30 If, after twenty-one days, the opposing party does not
withdraw the challenged paper, claim, defense, contention, allegation, or denial, the moving
party may file its motion for sanctions with the court.31 Defendant did not separately file a
motion for sanctions, and there is no evidence that Defendant served Plaintiffs with its motion
27

Even if Defendant had violated 15 U.S.C. § 1692d(5), the Court would likely find that Plaintiffs suffered
no actual damages. Here, Plaintiffs rely on their own testimony in an attempt to prove emotional distress damages
and can only do so “provided that [the testimony] is sufficiently detailed and does not rely on conclusory
statements.” Wantz v. Experian Info. Solutions, 386 F.3d 829, 834 (7th Cir. 2004). Plaintiff’s testimony establishes
that her preexisting conditions could have contributed to her stress and anxiety, and Melissa Webb opined that her
headaches were not normal, even though her doctor told her that they were normal due to her pregnancy. Plaintiffs
were not prescribed any medication, nor did they receive any type of psychological or medical treatment.
28

See Fed. R. Civ. P. 11(c)(2); see also Aerotech, Inc. v. Estes, 110 F.3d 1523, 1528–29 (10th Cir. 1997).

29

See R. 11(c)(2).

30

Id.

31

Id.

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for sanctions twenty-one days before filing it.32 Thus, Defendant is not entitled to Rule 11
sanctions.
Alternatively, section 1927 provides that “[a]ny attorney . . . who so multiplies the
proceedings in any case unreasonably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such
conduct.33 As the Tenth Circuit summarized, sanctions are appropriate under § 1927 when an
attorney is “cavalier or ‘bent on misleading the court’”; when an attorney “intentionally acts
without a plausible basis”; “when the entire course of the proceedings was unwarranted”; when
“certain discovery is substantially unjustified and interposed for the improper purposes of
harassment, unnecessary delay and to increase the costs of the litigation”; or “for conduct that,
viewed objectively, manifests either intentional or reckless disregard of the attorney’s duties to
the court.”34 “Like Rule 11, the court must apply an objective standard and subjective bad faith
is not a necessary showing for application of § 1927 sanctions.”35 The court should only impose
sanctions “‘in instances evidencing a serious and standard disregard for the orderly process of
justice’” and the court must be aware of the “need to ensure that the statute does not dampen
attorneys’ zealous representation of their clients’ interests. . . .”36 Unlike Rule 11 sanctions, §
32

See McCormick v. City of Lawrence, 218 F.R.D. 687, 691 (D. Kan. 2003); McGregor v. Shane’s Bail
Bonds, No. 10-2099-JWL, 2010 WL 3155635, at *18 (D. Kan. Aug. 9, 2010).
33

28 U.S.C. § 1927.

34

Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1342 (10th Cir. 1998) (citing Braley v. Campbell, 832 F.2d
1504, 1512 (10th Cir. 1987)).
35

Sheldon v. Khanal, No. 10-2412-CM, 2010 WL 3825489, at *1 (D. Kan. Sept. 24, 2010).

36

Ford Audio Video Sys., Inc. v. AMX Corp., Inc., Nos. 97-6169, 97-6171, 1998 WL 658386, at *3 (10th
Cir. Sept. 15, 1998) (quoting Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d 1159, 1165 (10th Cir. 1985) (internal
quotations omitted)).

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1927 sanctions are intended to compensate those who have been wronged as a result of abusive
litigation practices.37 Because § 1927 “is penal in nature, the award should be made only in
instances evidencing serious and standard disregard for the orderly process of justice.”38
Defendant alleges that Plaintiffs had no factual basis for filing the suit because the call
log that they relied on, which they failed to produce until after the close of discovery, does not
show a high volume of calls. Defendant alleges that Plaintiffs are merely trying to coerce it into
settling a frivolous lawsuit. But the Court disagrees with Defendant’s characterization of the call
log. As the Court previously explained, the call log and other evidence, when viewed in the light
most favorable to Plaintiffs, does show a high volume of calls. But the Court found no
additional evidence in the record that Defendant caused Plaintiffs’ phone to ring with intent to
annoy, abuse, or harass. The Court thus declines to find that the claim was frivolous or
unreasonable.
Defendant points to four similar complaints claiming violations of the FDCPA by
Plaintiffs, that demonstrates bad faith. Defendant cites to another case filed by Plaintiffs in the
United Stated District Court for the District of Kansas which was dismissed upon the court
finding “the Complaint lack[ed] sufficient factual assertions either to put [Defendant] on notice
of the claim or to allow it to respond.”39 But another case’s dismissal for failure to state a claim
for relief is insufficient to establish that the claim in this case was filed in bad faith, without any
reasonable basis, or with intent to harass. Indeed, Defendant made this argument on its motion
37

Hamilton v. Boise Cascade Exp., 519 F.3d 1197, 1205 (10th Cir. 2008).

38

Miera, 143 F.3d at 1342 (quotations and citations omitted).

39

Webb v. Convergence Outsourcing, Inc., No. 11-02606, 2012 WL 162394, at *1 (D. Kan. Jan. 19, 2012)

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to dismiss for failure to state a claim. In ruling on Defendant’s motion to dismiss, this Court
held that the claim made by the Plaintiffs was at least plausible and contained enough specific
facts to distinguish the claim from being a mere “cookie-cutter” complaint.40
Defendant argues in its reply that Plaintiffs’ counsel could have sent a letter to cease and
desist letter instead of filing a “false” claim. But the Court this issue because was raised for the
first time in the reply. And failure to send a cease and desist letter prior to filing suit is not
sufficient to warrant sanctions under § 1927.41
Because Defendant has not established that Plaintiffs acted unreasonably or vexatiously,
or that Plaintiffs’ conduct was done with bad faith or an intent to harass, its motion for attorneys’
fees and costs under § 1927 is denied.
Defendant claims that it is entitled to attorneys’ fees and costs as a prevailing defendant
under the FDCPA.42 This Court has previously held that §1692k(a)(3) is to be construed
narrowly.43 For Defendant to be entitled to fees and costs, “[Defendant] must show that
[Plaintiffs] knew the claim was meritless and that [they] pursued the claim for purposes of
harassment.”44 As already described, the Court finds that the claim was neither filed with bad
faith nor with the intent to harass. Plaintiffs’ Complaint was plausible and contained enough
specific facts to distinguish itself from a “cookie-cutter” complaint. Plaintiffs based their claim
40

Doc. 27 at 6.

41

Carman v. CBE Grp., Inc., 782 F. Supp. 2d 1223, 1237 (D. Kan. 2011).

42
15 U.S.C. § 1692k(a)(3). Defendant also claims to seek costs under Fed. R. Civ. P. 54(d)(1), which
provides that costs should be awarded to the prevailing party, “[u]nless a federal statute, these rules, or a court order
provides otherwise.” In this case, the FDCPA provision controls the award of costs, so Rule 54(d)(1) does not
apply.
43

Carman, 782 F. Supp. 2d at 1238.

44

Id.

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on the receipt of several phone calls a day over a number of months, and there is no evidence
that they intended to harass Defendant. Because the claim was not conducted in bad faith and
was not done for the purpose of harassment, the Court denies Defendant’s request for statutory
fees and costs under § 1692k(a)(3).
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Summary Judgment (Doc. 40) is granted. Defendant’s request for fees and costs is denied.
IT IS SO ORDERED.
Dated: October 22, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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