Davis v. Diversified Consultants, Inc.
Filing
44
Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered. Plaintiff's 39 motion to strike is DENIED, defendant's 28 motion for summary judgment is DENIED, and plaintiff's 25 motion for summary judgment is DENIED as to treble damages on count 2 and otherwise GRANTED.(Cicolini, Pietro)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
JAMIE DAVIS,
)
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Plaintiff,
)
)
Civil No.
v.
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13-10875-FDS
)
DIVERSIFIED CONSULTANTS, INC., and )
)
DOES 1-10, INCLUSIVE,
)
Defendants.
)
_______________________________________)
MEMORANDUM AND ORDER ON CROSSMOTIONS FOR SUMMARY JUDGMENT
SAYLOR, J.
This is an action claiming unlawful debt collection. It arises out of a series of telephone
calls between plaintiff Jamie Davis and various employees of defendant Diversified Consultants,
Inc., a debt collection agency. Davis contends that, by the mode and manner in which they
called him, DCI and its employees violated the Telephone Consumer Protection Act (“TCPA”),
47 U.S.C. § 227 et seq.; the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et
seq.; and the Massachusetts Privacy Act, Mass. Gen. Laws ch. 214, § 1B.
Davis has moved for partial summary judgment as to the TCPA claim, and DCI has
cross-moved for summary judgment on all counts. Davis also has moved to strike an affidavit
submitted by DCI in support of its motion. For the reasons set forth below, defendant’s motion
to strike will be denied, defendant’s motion for summary judgment will be denied, and plaintiff’s
motion for summary judgment will be granted in part and denied in part.
I.
Background
Unless otherwise noted, the following facts are undisputed.
A.
The Telephone Calls
On July 9, 2012, DCI acquired an account (that is, an alleged debt) belonging to Rosalee
Pagan. It first attempted to collect on Pagan’s debt on July 11, 2012. On July 15, 2012, DCI
paid a “skip trace” service provider, a company called Innovis, for location information and
telephone numbers related to Pagan.1 Among the data Innovis provided was the telephone
number (857) XXX-8596. That number, however, was assigned to Jamie Davis’s MetroPCS
cellular telephone.2
From August 1 to November 15, 2012, Davis received a total of 60 telephone calls at the
*8596 number from DCI collectors. Davis answered five to seven of those calls, and DCI may
have left one voice-mail message. When DCI collectors asked about Pagan, Davis stated that he
was not Pagan, did not know her, and had never heard of her, and asked the collectors to stop
contacting him. At no point in time did he consent to being called. (Pye Dep. at 27-28). Davis
alleges that one of the collectors was rude to him and implied that Davis was lying about not
knowing Pagan. (Davis Dep. at 20-24, 28-31).
B.
The LiveVox System
During the relevant time period, DCI utilized a telephone system operated by LiveVox in
order to place many, if not all, of its telephone calls. Both Mavis-Ann Pye, who was the DCI
Vice President of Compliance, and the DCI website refer to the LiveVox system as a “predictive
1
The phrase “skip trace” apparently derives from the slang expression that a fugitive or debtor has “skipped
town.”
2
Rafal Leszczynski, the DCI Director of Operations and Dialing Systems, contends that DCI only calls
numbers received from its clients, thereby suggesting that it does not use an outside skip trace service provider.
(Leszczynski Aff. ¶ 7). However, because that statement, made in an affidavit at the summary judgment stage,
directly contradicts the deposition testimony of DCI’s Rule 30(b)(6) witness, and because Leszczynski was not
employed in his current position at DCI during the events at issue, the statement cannot be credited in order to defeat
summary judgment. See Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994).
2
dialer.” (Pye Dep. at 20-21; Lemberg Decl., Ex. F, DCI Website).3
Every morning, DCI Director Jamie Sullivan uploaded a file containing telephone
numbers into the LiveVox cloud-based server.4 The LiveVox system then called those numbers
throughout the day. If someone answered the call, the system routed that call to a DCI debt
collector. The parties dispute whether DCI or LiveVox actually placed the telephone calls.
DCI had the option to store telephone numbers in the LiveVox system for up to 30 days.
(Pye Dep. at 80). However, the numbers instead were erased at 1:00 a.m. every night, and DCI
uploaded new numbers every morning. (Leszczynski Aff. ¶ 7). Pye stated that DCI had the
option for LiveVox to dial numbers sequentially; DCI did not, however, use that function. (Pye
Dep. at 89).5 According to a memorandum written by LiveVox concerning the Telephone
Consumer Protection Act, “the LiveVox Application Service, while able to store or produce
telephone numbers to be called, does not have the capacity to store or produce numbers to be
called using a random or sequential number generator.” (Pl. Mem., Ex. C) (emphasis in
original). LiveVox therefore concluded that its system does not constitute an “automatic
telephone dialing system” under the TCPA, but noted in the memorandum that one court has
disagreed with that conclusion. (Id.).
Davis contends that DCI used the LiveVox system to call him from August to November
2012. Pye confirmed at her deposition that the LiveVox system called the *8596 number (see
3
The Leszczynski affidavit described LiveVox as using a Voice-Over-Internet Protocol (“VOIP”).
(Leszczynski Aff. ¶ 3). Defendant has not explained why the fact that the LiveVox uses VOIP makes a difference to
the analysis of this case.
4
Sullivan has since left the employ of DCI and Leszczynski has taken over his duties. (See Def. Opp. Mot.
to Strike).
5
The Leszczynski affidavit contends that LiveVox does not have the capacity to produce or store telephone
numbers using a random or sequential number generator. (Leszczynski Aff. ¶ 5).
3
Pye Dep. at 28-35). She nonetheless now states in an affidavit opposing summary judgment that
no calls were made using “an automatic telephone dialing system.” (Pye Aff. ¶ 2).6 Pye also
states that DCI’s standard practice is to “scrub” new accounts for cellular telephone numbers in
order avoid calling such numbers. (Id. ¶ 5).7
C.
Procedural Background
On April 12, 2013, Davis filed a complaint against DCI and the DCI collectors who
called him, all identified as “John Doe” defendants. The complaint alleged claims under the
TCPA, and the FDCPA and for state-law invasion of privacy.
On March 31, 2014, Davis moved for partial summary judgment as to the TCPA claim,
and DCI cross-moved for summary judgment as to all claims. On April 28, 2014, Davis filed a
motion to strike an affidavit submitted by DCI in support of its motion and opposition.
II.
Motion to Strike
Plaintiff has moved under Fed. R. Civ. P. 37 to strike the affidavit of Rafal Leszczynski,
which defendant offered in support of its motion for summary judgment and in opposition to
plaintiff’s motion for summary judgment.
Fed. R. Civ. P. 37 provides a remedy for an opposing party’s failure to comply with
certain disclosure requirements or discovery requests. As relevant here, the failure to identify a
witness as required by Fed. R. Civ. P. 26(a) prevents the party from using that witness to supply
evidence on a motion, “unless the failure was substantially justified or is harmless.” Fed. R. Civ.
6
For the same reasons that the Leszczynski affidavit will be disregarded under the “sham affidavit” rule,
the newly submitted Pye affidavit will be disregarded to the extent that it directly contradicts her prior deposition
testimony. See Colantuoni, 44 F.3d at 4-5.
7
The TCPA treats cellular telephones and land-line telephones differently. See generally 47 U.S.C. § 227.
4
P. 37(c)(1).
Plaintiff contends that defendant failed to make a timely disclosure of Leszczynski as a
potential witness. Defendant, however, asserts that Leszczynski is a new employee, hired to
replace Jamie Sullivan (a disclosed DCI witness) after he resigned; the affidavit, defendant
argues, is therefore proper. Defendant’s explanation satisfies the “substantially justified” or
“harmless” standard. Defendant could not, initially, have disclosed Leszczynski as a witness if
he was not yet an employee, and it did disclose his predecessor in office. Defendant perhaps
should have supplemented its disclosures and informed plaintiff of the change in a more prompt
fashion. But that error appears harmless at this stage. Ultimately, if Leszczynski is now the
appropriate witness who can provide testimony in place of Sullivan, then defendant may present
such testimony. The motion will not be granted on that basis.
Plaintiff also objects that Leszczynski’s testimony contradicts that of another DCI
30(b)(6) witness, Mavis-Ann Pye. To be sure, a party cannot submit an affidavit contradicting
testimony from its own witnesses in order to avoid summary judgment. “When an interested
witness has given clear answers to unambiguous questions, he cannot create a conflict and resist
summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory
explanation of why the testimony is changed.” Colantuoni, 44 F.3d at 4-5. Accordingly, under
this so-called “sham affidavit” rule, the Court will not rely upon statements by Leszczynski that
directly contradict those of defendant’s other 30(b)(6) witnesses. But that is not ground to strike
the affidavit as a whole.
Accordingly, the motion to strike will be denied, except to the extent that the affidavit
5
contradicts the sworn deposition testimony of defendants’ witnesses.8
III.
Cross-Motions for Summary Judgment
Summary judgment is appropriate when “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).
“Essentially, Rule 56[] mandates the entry of summary judgment ‘against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.’” Coll v. PB Diagnostic Sys., 50
F.3d 1115, 1121 (1st Cir. 1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In
making that determination, the court views “the record in the light most favorable to the
nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20,
25 (1st Cir. 2009). When “a properly supported motion for summary judgment is made, the
adverse party ‘must set forth specific facts showing that there is a genuine issue for trial.’”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). The
non-moving party may not simply “rest upon mere allegation or denials of his pleading,” but
instead must “present affirmative evidence.” Id. at 256-57.
“Cross motions for summary judgment neither alter the basic Rule 56 standard, nor
warrant the grant of summary judgment per se. Cross motions simply require us to determine
whether either of the parties deserves judgment as a matter of law on facts that are not disputed.
As always, we resolve all factual disputes and any competing, rational inferences in the light
most favorable to the party against whom summary judgment has entered.” Wightman v.
8
Defendant also opposed the motion under Local Rule 7.1(a)(2) on the ground that plaintiff had failed to
confer prior to filing of the motion and to submit a certification of compliance. Because the motion is subject to
denial on another ground, there is no need to reach the issue.
6
Springfield Terminal Ry., 100 F.3d 228, 230 (1st Cir. 1996) (internal citations omitted).
A.
Telephone Consumer Protection Act
“Congress passed the TCPA to protect individual consumers from receiving intrusive and
unwanted calls.” Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013) (citing Mims
v. Arrow Fin. Servs., LLC, 132 S.Ct. 740, 745 (2012)). The TCPA, in relevant part, makes it
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 . . . .” 47 U.S.C.
§ 227(b)(1)(A). “The TCPA is essentially a strict liability statute” and “does not require any
intent for liability except when awarding treble damages.” Alea London Ltd. v. Am. Home
Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011).
1.
Standing
Defendant has raised a threshold issue as to whether plaintiff has standing to complain of
a TCPA violation. The answer is surely yes. Defendant’s argument is that plaintiff was not the
“intended recipient” of the calls. The term “intended recipient,” however, appears nowhere in §
227. Instead, the statute refers to “any person or entity” or the “called party,” which plaintiff
undoubtedly is and was. See Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 643 (7th
Cir. 2012) (concluding that “called party” means “the person subscribing to the called number at
the time the call is made” and rejecting argument that it means “intended recipient”); Harris v.
World Fin. Network Nat. Bank, 867 F. Supp. 2d 888, 894-95 (E.D. Mich. 2012); Swope v. Credit
Mgmt., LP, 2013 WL 607830, at *2-3 (E.D. Mo. Feb. 19, 2013). At a minimum, while defendant
may not have intended to call plaintiff the first time, after plaintiff made clear it that he was not
7
Rosalee Pagan and defendant continued to call him, at that point he became the “intended
recipient.” The two cases that defendant cites in support of its position are factually
distinguishable. Although both decisions stated that only the “intended recipient” had standing,
the plaintiffs there were cellular telephone companies suing on behalf of subscribers, see Cellco
P’ship v. Dealers Warranty, LLC, 2010 WL 3946713, at *6-13 (D.N.J. Oct. 5, 2010), and an
individual who shared a telephone line with his roommate, see Leyse v. Bank of Am., Nat. Ass’n,
2010 WL 2382400, at *4-6 (S.D.N.Y. June 14, 2010). None of those plaintiffs were the
subscribers and regular users of the telephone, as plaintiff here is. Accordingly, plaintiff has
standing to sue.
2.
Merits of the Claim
There are two factual issues under the TCPA that are relevant here: whether a person
called another on a cellular telephone, and whether that call utilized an automatic telephone
dialing system.9
The first issue is relatively straightforward. It is undisputed that plaintiff received calls
on his cellular telephone. Defendant argues that LiveVox, not it, actually made the complainedof calls. It emphasizes that LiveVox is an “independent, third-party contractor” and that “the
LiveVox system, not DCI’s collection agents, places the calls.” (Def. Mem. at 7). But that
argument ignores several critical facts. Every morning, a DCI employee uploaded telephone
numbers into the LiveVox system. Essentially, that instructed LiveVox which numbers to call to
9
Some cases may also require determination of whether the called party consented to being called. There is
no evidence here that plaintiff consented, defendant has admitted that it obtained plaintiff’s number from a skip trace
service provider, and defendant seemingly no longer raises prior consent as an affirmative defense. See Levy v.
Receivables Perf. Mgmt. LLC, 972 F.Supp.2d 409, 418 (E.D.N.Y. 2013) (“‘Prior express consent’ to be contacted on
a cell phone via an ATDS in regards to a particular debt has been deemed granted in situations where a plaintiff
provided his or her cell phone number to a creditor during the transaction that resulted in that particular debt.”).
8
the same extent as if a DCI collector himself had typed in the number on a telephone keypad.
Then, when a person answered a call, the call was routed to, and the person was greeted by, a
DCI employee. Here, defendant obtained plaintiff’s cellular telephone number, uploaded the
number into the LiveVox system on multiple days, and on the five to seven occasions when
plaintiff answered the call, one of defendants’ employees answered. Defendant cannot deny
responsibility merely because it used a technological intermediary.10 Even viewing the evidence
in a light favorable to defendant, it is clear that defendant “made” the calls to plaintiff’s cellular
telephone within the meaning of the TCPA.
The second issue, however, poses a slightly more difficult question. The statute defines
“automatic telephone dialing system” (“ATDS”) as “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.” 47 U.S.C. § 227(a) (emphasis added). To satisfy that definition,
the equipment does not actually have to store or produce telephone numbers or to use a random
or sequential number generator; it merely must have the capacity to do so. Satterfield v. Simon
& Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009).11
The FCC has ruled that a predictive dialer qualifies as an ATDS. See In the Matter of
Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014,
10
Moreover, in response to plaintiff’s interrogatories to “[i]dentify the . . . contact information of any
person, individual, entity and/or organization hired, employed or retained by You to make outgoing calls to Plaintiff
and/or Plaintiffs Number” and to “[i]dentify every contractor or subcontractor hired or retained by you to make
outgoing calls to the Plaintiff,” defendant answered both as “None.” (Pl. Opp., Ex. E).
11
Defendant contends, as a preliminary issue, that plaintiff’s claim must fail because expert testimony is
needed to determine whether LiveVox is an ATDS. Some plaintiffs have indeed employed an expert for this
purpose, see, e.g., Dominguez v. Yahoo!, Inc., 2014 WL 1096051 (E.D. Pa. Mar. 20, 2014), but others have proved
their claims without the use of an expert, see, e.g., Echevvaria v. Diversified Consultants, Inc., 2014 WL 929275
(S.D.N.Y. Feb. 28, 2014). Viewing the evidence presented here as a whole, it does not appear that expert testimony
is necessary to determine the question.
9
14091-93 (July 3, 2003). The agency found that predictive dialer hardware, “when paired with
certain software, has the capacity to store or produce numbers and dial those numbers at random,
in sequential order, or from a database of numbers.” Id. at 14091. It noted that “the evolution of
the teleservices industry has progressed to the point where using lists of numbers is far more cost
effective” but that “[t]he basic function of such equipment . . . has not changed—the capacity to
dial numbers without human intervention.” Id. at 14092. “In 2008, the FCC issued a
Declaratory Ruling reaffirming that ‘a predictive dialer constitutes an automatic telephone
dialing system and is subject to the TCPA’s restrictions on the use of autodialers.’” Echevvaria
v. Diversified Consultants, Inc., 2014 WL 929275, at *5 (S.D.N.Y. Feb. 28, 2014) (quoting In re
Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory
Ruling, 23 F.C.C. Rcd. 559, 556 ¶ 12, 2008 WL 65485 (F.C.C. Jan.4, 2008)). See Meyer v.
Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (holding that a
predictive dialer is an ATDS under the TCPA); Vance v. Bureau of Collection Recovery LLC,
2011 WL 881550 (N.D. Ill. Mar. 11, 2011).
The undisputed evidence here clearly establishes that the LiveVox system has the
capacity to store telephone numbers. Pye stated that the system could store numbers for up to 30
days, and the LiveVox memorandum confirms that it is “able to store or produce telephone
numbers to be called.” (Pl. Mem., Ex. 3). Defendant appears to argue that the system fails to
meet the statutory definition because it deletes all numbers at the end of the day. (See Def. Mem.
at 7). But it is undisputed that the system stores numbers for at least the course of a single day.
The TCPA, on its face, does not require storage for any length of time. In any event, the system
here has the capacity to do so.
10
Whether the LiveVox system has the capacity for random or sequential number
generation is a somewhat murkier question. According to Pye’s deposition testimony, the
answer is yes. She confirmed that LiveVox has the capacity to dial sequentially and that
sequential dialing is its default option. (Pye Dep. at 89). Furthermore, another district court,
examining the same LiveVox system as utilized by DCI, came to the conclusion that it met the
statutory definition of an ATDS. See Echevvaria v. Diversified Consultants, Inc., 2014 WL
929275, at *5-7. Defendant’s contrary evidence consists of (1) a statement in Leszczynski’s
affidavit that contradicts Pye’s deposition testimony and (2) a memorandum issued by LiveVox
to its clients that states that its system does not use a random or sequential number generator, but
that also notes that a court had found it met the definition of an ATDS. (Leszczynski Aff. ¶ 5;
Pl. Mem., Ex. C).
Ultimately, defendant’s evidence is insufficient to raise a dispute of material fact
sufficient to prevent summary judgment. Defendant cannot rely on the Leszczynski affidavit to
defeat summary judgment on this issue because it directly contradicts the prior statements of
defendant’s prior Rule 30(b)(6) witness. Colantuoni, 44 F.3d at 4-5. And even if the LiveVox
memorandum correctly states that its system cannot dial randomly or sequentially, it is
undisputed that LiveVox is a “predictive dialer” that dials from lists of numbers. The FCC
rulings specifically account for the fact that technology has developed such that lists of numbers
are more cost-effective than random or sequential numbers. The agency concluded that a
“predictive dialer” that relies on lists of numbers qualifies as an ATDS under the TCPA. That
ruling is entitled to deference. See Leyse v. Clear Channel Broadcasting, Inc., 2013 WL
5926700, at *8 (6th Cir. Nov. 5, 2013) (granting Chevron deference to FCC regulations under
11
the TCPA); cf. United States v. Mead Corp., 533 U.S. 218, 226-27, 229-30 (2001). Here, Pye
testified that the LiveVox system was a predictive dialer. The LiveVox memorandum and
defendant’s own website likewise stated that the LiveVox system was a predictive dialer. In
short, the LiveVox system, as utilized by defendant, was an ATDS.
In sum, even viewing the facts in the light most favorable to defendant, the evidence
demonstrates that defendant used an ATDS to call plaintiff, without his prior consent.
Accordingly, plaintiff is entitled to summary judgment that defendant violated § 227 of the
TCPA.
The TCPA provides for damages in an amount totaling the greater of actual monetary
loss or $500 for each violation of the statute. 47 U.S.C. § 227(b)(3)(B). However, a plaintiff
may recover treble damages if a defendant willfully or knowingly violated the statute or
regulations promulgated under § 227(b). Id. § 227(b)(3). While neither the TCPA nor FCC
regulations provide a definition for willful and knowing, most courts have interpreted the willful
or knowing standard to require only that a party’s actions were intentional, not that it was aware
that it was violating the statute. See, e.g., Alea London Ltd., 638 F.3d at 776 (holding that the
TCPA requires mere “knowing” conduct); Harris v. World Fin. Network Nat. Bank, 867 F. Supp.
2d 888, 896-97 (E.D. Mich. 2012); Sengenberger v. Credit Control Servs., Inc., 2010 WL
1791270 (N.D. Ill. May 5, 2010); Bridgeview Health Care Ctr. Ltd. v. Clark, 2013 WL 1154206
(N.D. Ill. Mar. 19, 2013). But see, e.g., Texas v. Am. Blastfax, Inc., 164 F. Supp. 2d 892 (W.D.
Tex. 2001) (requiring knowledge that conduct violated the statute). Those courts relied, in part,
on the fact that “the Communications Act of 1943, of which the TCPA is a part, defines willful
as ‘the conscious or deliberate commission or omission of such act, irrespective of any intent to
12
violate any provision[ ], rule or regulation.’” Sengenberger, 2010 WL 1791270, at *6 (quoting
47 U.S.C. § 312(f)). And “[t]he plain language of 47 U.S.C. § 227(b) makes the sender of an
unauthorized [communication] strictly liable, so interpreting ‘willfully’ as requiring a volitional
act does not render the treble damages provision redundant with simple [liability] under the
TCPA.” Bridgeview Health Care Ctr., 2013 WL 1154206, at *7. The Court finds that reasoning
persuasive and will therefore apply that standard here.
The undisputed evidence demonstrates that defendant called plaintiff 60 times. (Pl.
Mem., Ex. 4). Plaintiff therefore is entitled to at least $500 per call. The only remaining
question is whether he is entitled to treble damages.
There is substantial evidence to suggest that defendant may have acted willfully in
calling plaintiff. Defendant did not acquire plaintiff’s telephone number from its client, as a
number associated with the debtor, but instead from a third-party service provider. Even
assuming that the subscriber of that number was the debtor, it was not the number she had
provided to defendant’s client; defendant therefore could not reasonably have believed that it had
her consent to call that number. Cf. Echevvaria, 2014 WL 929275, at *9 (finding that the first
call was not a knowing and willful violation because the defendant could not have known that
the number did not belong to the debtor). In any event, the subscriber was plaintiff, not the
debtor. Even after plaintiff informed defendant that he was not the debtor and did not know the
debtor, defendant continued to call him. Moreover, the LiveVox memorandum clearly stated
that one court had ruled that its system was an ATDS subject to the TCPA, therefore putting
defendant on notice of potential illegality.
On the other hand, defendant has asserted that it acted in good faith. It contends that it
relied on LiveVox’s statement that its system was not an ATDS, and that it took steps to scrub
13
cellular telephone numbers from its system so as not to violate the TCPA.
Intent is an issue of fact that is rarely decided at the summary judgment stage. Petitti v.
New England Tel. & Tel. Co., 909 F.2d 28, 31 (1st Cir. 1990) (stating that issues of intent “are
most suited for jury determinations”). The evidence presented here is not so clear and one-sided
as to the alleged willfulness of defendant’s conduct that reasonable jurors could come to only
one conclusion. Accordingly, neither plaintiff nor defendant is entitled to summary judgment as
to treble damages for willful conduct.
B.
Fair Debt Collection Practices Act
Plaintiff contends that defendant violated the FDCPA by calling him, a non-debtor, 60
times over the course of three and one-half months, by continuing to call him even after he had
requested that defendant cease, and by acting rudely on at least one telephone call. Defendant, in
turns, argues that the complained-of actions do not amount to a violation of the Act.
Congress passed the FDCPA in part “to eliminate abusive debt collection practices by
debt collectors.” 15 U.S.C. § 1692. The Act imposes various prohibitions on the actions of debt
collectors. Under § 1692d, they “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,”
which includes “[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.” 15 U.S.C. § 1692d(5). Under § 1692f, debt collectors “may not use unfair or
unconscionable means to collect or attempt to collect any debt.” Pursuant to that subsection,
courts have “sanction[ed] improper conduct that the FDCPA fails to address specifically.”
Adams v. Law Offices of Stuckert & Yates, 926 F.Supp. 521, 528 (E.D. Pa.1996).
Under § 1692d, there are no bright-line rules as to what constitutes harassment or what
14
demonstrates intent to annoy. Instead, such findings have been based on a consideration of
multiple factors. For example, in determining whether the intent requirement is met, courts often
look to the volume, frequency, and persistence of calls, to whether defendant continued to call
after plaintiff requested it cease, and to whether plaintiff actually owed the alleged debt. See
Hendricks v. CBE Grp., Inc., 891 F. Supp. 2d 892, 896-97 (N.D. Ill. 2012); see, e.g., Sussman v.
I.C. Sys., Inc., 928 F. Supp. 2d 784, 793-94 (S.D.N.Y. 2013); Tarrant v. Northland Grp., Inc.,
2012 WL 140431, at *5-6 (M.D. Tenn. Jan. 18, 2012); Chavious v. CBE Grp., Inc., 2012 WL
113509, at *1-3 (E.D.N.Y. Jan. 13, 2012); Pratt v. CMRE Fin. Servs., Inc., 2012 WL 86957, at
*3-4 (E.D. Mo. Jan. 11, 2012). On the other hand, a single rude caller or the mere fact that a
telephone call is unwelcome is insufficient. See Martin v. Select Portfolio Serving Holding
Corp., 2008 WL 618788, at *6-7 (S.D. Ohio Mar. 3, 2008).
Here, viewing the evidence in the light most favorable to plaintiff, there is an issue of
material fact as to whether defendant’s conduct amounts to a violation of the FDCPA. Sixty
calls over a period of about three months is not insignificant in volume, and on multiple days,
defendant called plaintiff as many as three or four times. And the debt did not belong to
plaintiff; defendant persisted in calling plaintiff after he had informed it of that fact and
requested defendant stop calling. A reasonable jury could find a violation of § 1692d(5) on
those facts.
As to plaintiff’s claim under § 1692f, the section generally applies where the conduct is
similar to that prohibited by the FDCPA but not covered by any other section therein. See Rush
v. Portfolio Recovery Associates LLC, 977 F. Supp. 2d 414, 432 (D.N.J. 2013); Tarrant, 2012
WL 140431, at *7-8. Plaintiff here does not appear to allege any conduct beyond the allegedly
abusive calls, which fall within the ambit of § 1692d. However, because the FDCPA claims are
15
pleaded in a single count of the complaint, and because the § 1692d claim will survive summary
judgment, the prudent course at this stage appears to be to deny summary judgment as to the §
1692f claim as well.
Accordingly, defendant’s motion for summary judgment as to the FDCPA claim will be
denied.
C.
Massachusetts Privacy Act
The Massachusetts Privacy Act establishes “a right against unreasonable, substantial or
serious interference with . . . privacy.” Mass. Gen. Laws ch. 214, § 1B. Although phrased with
the disjunctive “or,” a violation must be based on an interference that is both unreasonable and
either substantial or serious. Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409
Mass. 514, 518-522 (1991). Plaintiff contends that defendant unreasonably intruded upon his
privacy by obtaining his telephone number from a skip-tracer, repeatedly calling him, ignoring
his requests to cease calling, and accusing him of being a “liar.”
There are no cases precisely on point as to whether such conduct constitutes a violation
of § 1B. However, Massachusetts courts have acknowledged that a claim of unreasonable
intrusion upon one’s seclusion may be actionable under the statute. See Ayash v. Dana-Farber
Cancer Inst., 443 Mass. 367, 408 n.16 (2005); Ellis v. Safety Ins. Co., 41 Mass. App. Ct. 630,
638 (1996) (Lenk, J.); see also Krasnor v. Spaulding Law Office, 675 F. Supp. 2d 208, 213-14
(D. Mass. 2009) (collecting cases). Viewing the facts in the light most favorable to the plaintiff,
a reasonable jury could find defendant’s conduct here both unreasonable and substantial or
serious. Accordingly, defendant’s motion for summary judgment will be denied.
IV.
Conclusion
For the foregoing reasons, plaintiff’s motion to strike is DENIED, defendant’s motion for
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summary judgment is DENIED, and plaintiff’s motion for summary judgment is DENIED as to
treble damages on count 2 and otherwise GRANTED.
So ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: June 27, 2014
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