Nightingale v. National Grid USA Service Company, Inc. et al

Filing 112

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER - For the foregoing reasons, defendants' motion for summary judgment (Docket No. 73 ) is ALLOWED. (Currie, Haley)

Case 1:19-cv-12341-NMG Document 112 Filed 05/19/23 Page 1 of 15

United States District Court
District of Massachusetts
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ROBERT NIGHTINGALE,
Plaintiff,
v.
NATIONAL GRID USA SERVICE
COMPANY, INC., FIRST CONTACT
LLC, and IQOR US INC.,
Defendants.

Civil Action No.
19-12341-NMG

MEMORANDUM & ORDER
GORTON, J.
This lawsuit involves claims of unfair and deceptive
business practices in violation of regulations promulgated by
the Massachusetts Attorney General under the Massachusetts
Consumer Protection Act, M.G.L. c. 93A, § 2.

Robert Nightingale

(“plaintiff” or “Nightingale”) brought this action under
section 9 of that statute on behalf of himself and a putative
class against National Grid USA Service Company, Inc. (“National
Grid”), iQor US Inc. (“iQor”) and its subsidiary First Contact
LLC (“First Contact”) (collectively, “the defendants”).

This

Court denied plaintiff’s motion for class certification in
April, 2023.

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Now pending before the Court is defendants’ motion for
summary judgment (Docket No. 73).

For the following reasons,

the motion will be allowed.
I.

Background
A.

Factual Background

Nightingale is a resident of Boston, Massachusetts.
National Grid is an electricity, natural gas and energy delivery
company with a principal place of business in Waltham,
Massachusetts.

iQor provides business process services,

including first-party debt collection services.

First Contact

is a wholly-owned subsidiary of iQor and provides business
support services.

iQor is a Florida corporation and First

Contact is a limited liability company located in St.
Petersburg, Florida.
Plaintiff alleges that he incurred a debt to National Grid
for electricity services and that National Grid contracted with
First Contact and iQor to collect that debt.

In 2018,

defendants are alleged to have called plaintiff’s phone in
excess of two times within a seven-day period on multiple
occasions.

Nightingale claims that defendants’ repeated calls:

1) caused him emotional distress, 2) wasted his time and
deprived him of the use of his phone and 3) invaded his personal
privacy.

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B.

Procedural History

In October, 2018, plaintiff filed suit in Massachusetts
Superior Court on behalf of himself and a putative class of
Massachusetts consumers against National Grid.

During

discovery, National Grid represented that it had contracted with
First Contact to place first-party collection calls on its
behalf.

In September, 2019, Nightingale filed a second amended

complaint naming First Contact and iQor as co-defendants.
Defendants then collectively removed the action to this Court
pursuant to the Class Action Fairness Act, 28 U.S.C. § 1453(b).
Defendants filed a motion to dismiss the second amended
complaint for failure to state a claim which the Court denied in
August, 2020. In December, 2022, plaintiff moved to certify a
class and a sub-class of Massachusetts residents who were called
more than twice within a seven-day period regarding their debts
to National Grid.

The Court denied that motion in April, 2023.

Defendants moved for summary judgment in October, 2022,
which plaintiff has opposed.

Plaintiff has also filed motions

to exclude certain testimony and to certify a question of law to
the Massachusetts Supreme Judicial Court (“the SJC”).

Those

non-dispositive motions are not related to or dependent upon the
resolution of plaintiff’s motion for class certification or
defendants’ pending motion for summary judgment and they are, in
fact, rendered moot by virtue of the Court’s decision here.
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II.

Defendants’ Motion for Summary Judgment
A.

Legal Standard

The role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,
895 F.2d 46, 50 (1st Cir. 1990)).

The burden is on the moving

party to show, through the pleadings, discovery and affidavits,
“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).
A fact is material if it “might affect the outcome of the
suit under the governing law . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).

A genuine issue of material

fact exists where the evidence with respect to the material fact
in dispute “is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
If the moving party satisfies its burden, the burden shifts
to the nonmoving party to set forth specific facts showing that
there is a genuine, triable issue. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986).

The Court must view the entire record in

the light most favorable to the non-moving party and make all
reasonable inferences in that party's favor. O'Connor v.
Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
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Summary judgment is

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appropriate if, after viewing the record in the non-moving
party's favor, the Court determines that no genuine issue of
material fact exists and that the moving party is entitled to
judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23.
B.

Application
1.

Mass. Gen. Laws Chapter 93A, § 9

Plaintiff has asserted a claim for damages under M.G.L. c.
93A, § 9 (“Section 9”) which provides that:
Any person . . . who has been injured by another
person's use or employment of any method, act or
practice declared to be unlawful by section two or any
rule or regulation issued thereunder . . . may bring
an action[.]
Thus, the invasion of a plaintiff’s legal right in
violation of M.G.L. c. 93A, § 2 (“Section 2”) does not establish
a defendant’s liability under Section 9 on its own.

The

plaintiff must also prove that he or she has suffered a
cognizable and distinct injury “that arises from the claimed
unfair or deceptive act itself”. Tyler v. Michaels Stores, Inc.,
464 Mass. 492, 503, 984 N.E.2d 737, 746 (2013).
In their summary judgment briefing, defendants do not
contest that their calls to plaintiff violated regulations
promulgated by the Attorney General under Section 2.
Specifically, 940 C.M.R. § 7.04(1)(f) deems the following an
unfair or deceptive act or practice:

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Initiating a communication with any debtor via
telephone . . . in excess of two such communications
in each seven-day period[.]
Instead, defendants contend that plaintiff did not suffer a
separate and distinct injury as a result of the excessive calls.
Plaintiff responds that the subject calls caused him to suffer
three cognizable injuries: 1) emotional distress, 2) wasted time
and the loss of the use of his telephone and 3) invasion of his
privacy.
C.

Plaintiff’s Purported Injuries
1.

Emotional Distress

At the motion to dismiss stage, this Court explained that
an extensive list of alleged injuries, including certain
feelings of emotional distress (e.g. anger, fear and
embarrassment), “may constitute separate, identifiable harm
under Chapter 93A.” Nightingale v. Nat'l Grid USA Serv. Co., No.
19-CV-12341, 2020 WL 4506167, at *3 (D. Mass. Aug. 4, 2020); see
also Harrington v. Wells Fargo Bank, N.A., No. 19—CV-11180, 2019
WL 3818299, at *4 (D. Mass. Aug. 14, 2019) (declining to “reach
[the] issue” of whether a plaintiff must prove the elements of
intentional infliction of emotional distress to demonstrate an
emotional distress injury under Chapter 93A).
Defendants contend that Nightingale must prove the elements
of intentional infliction of emotional distress (“IIED”) in
order to prevail on his claim of an emotional distress injury
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under Section 9.

Indeed, several decisions in this district,

citing Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (Mass.
1991) [“Haddad”], have held that:
A plaintiff must prove all the elements of intentional
infliction of emotional distress in order to prevail
on a 93A claim for emotional damages.
Zielinski v. Citizens Bank, N.A., 552 F. Supp. 3d 60, 72 (D.
Mass. 2021); Young v. Wells Fargo Bank, N.A., 109 F. Supp. 3d
387, 396 (D. Mass. 2015) (same); Keenan v. Wells Fargo Bank,
N.A., 246 F. Supp. 3d 518, 526 (D. Mass. 2017) (same).
This Court applies the same standard.

In the pending case,

Nightingale has not established the elements of IIED which are:
(1) that [the actor] intended, knew, or should have
known that his conduct would cause emotional distress;
(2) that the conduct was extreme and outrageous;
(3) that the conduct caused emotional distress; and
(4) that the emotional distress was severe.
Polay v. McMahon, 468 Mass. 379, 385, 10 N.E.3d 1122, 1128
(Mass. 2014).
In particular, there is no evidence that defendants knew
plaintiff was in a vulnerable emotional state and was likely to
suffer distress or that they intended to cause him emotional
distress.

Nor are there facts which suggest that the phone

calls were conducted in an “extreme and outrageous” fashion
outside the bounds of decency.

Finally, it is undisputed that

plaintiff did not seek the services of a doctor or any
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medication as a result of the calls.

Rather, he purportedly

responded to the alleged emotional distress by having a “couple
of drinks”.
Plaintiff does not contend that the elements of IIED are
satisfied here but instead responds that Haddad is unpersuasive.
He cites Wilson v. Transworld Systems, Inc., in which the
Massachusetts Appeals Court (“the MAC”) noted that
[r]ecent cases such as Hershenow and Tyler suggest a
more permissive approach to injury for purposes of
c. 93A [than Haddad].
86 Mass. App. Ct. 1109 n.4, 14 N.E.3d 968 n.4 (2014)
(unpublished summary decision).
Nevertheless, the MAC did not hold in Wilson that a
plaintiff is no longer required to prove the elements of IIED to
demonstrate an injury under Section 9.

Furthermore, the claims

in Wilson were based upon calls which were intimidating,
aggressive, profane and conducted in “a threatening manner.” Id.
The alleged conduct in the case at bar does not rise to nearly
the same level of outrageousness.

Nightingale’s conclusory

characterization of the subject debt collection calls as being
akin to stalking and/or “violating” does not create a genuine
dispute of material fact with respect to his claimed emotional
damages.

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2.

Wasted Time and Loss of Use of His Phone

Defendants contend that there is no genuine dispute of
material fact as to whether the calls to Nightingale wasted his
time or deprived him of the use of his phone.
It is undisputed that plaintiff answered no more than a few
of the calls he received and, in fact, defendants proffer
unrebutted evidence indicating that plaintiff answered only a
single call. 1

Furthermore, Nightingale testified that he does

not remember the duration of any of the calls and, although he
claims that he took screenshots showing the length of the calls,
the subject screenshots only show missed calls with no duration.
Meanwhile, plaintiff has no recollection of what he was doing
when he received any of the calls and cannot attribute to them
any wasted time or deprivation of the use of his phone.
At his deposition, plaintiff merely stated that he:
1) “use[s] that phone for business”;
2) “[was] trying to start a business up and run a
business and stuff like that”; and
3) “[a]nytime I go and I have business, I use my
phone.”
In response to a follow-up question, Nightingale speculated
that he could have been deprived of the productive use of his
phone if
Plaintiff suggests that he may have answered “three or four
times” but cannot remember the actual number or when he
answered.
1

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people are calling in and a customer is trying to call
in at the same time . . . [and/or] it puts you in a
mood, like, you don't want to talk to anybody right
now because you're violated from these people calling
you. So it probably did [have an effect] indirectly.
Moreover, neither plaintiff nor his phone were adversely
disrupted by any voicemails left by the defendants.

Nightingale

testified that he may have received and “vaguely” listened to a
couple of voicemails regarding overdue bills (in contrast to
other communications that he initiated about making a payment)
but averred that the messages did not prevent him from receiving
other voicemails or take up memory space on his phone because he
consistently erased his messages.
Apart from his speculation about the potential effect of
simultaneous calls or being put in a hypothetical bad mood,
there is no indication, based upon plaintiff’s call records or
testimony, that he was deprived of the use of his phone or lost
an appreciable amount of time due to the calls.

Although the

Court does not dismiss the argument that tying up someone’s
phone or wasting their time might constitute a “distinct injury
or harm” for purposes of Section 9 in other factual
circumstances, the undisputed facts here demonstrate that
plaintiff did not suffer a distinct injury separate from the
statutory violation of Section 2.

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3.

Invasion of Personal Privacy

Finally, defendants submit that Nightingale should be
barred from asserting that the calls caused an invasion of his
privacy because he failed to so assert in response to their
interrogatories or at his deposition.

Whether plaintiff

suffered an invasion of his privacy has, however, been the
subject of dispute previously during this litigation and the
Court considers his assertion of such an injury here.
The kind of invasion of privacy at issue in this case is an
allegedly unreasonable intrusion “upon the plaintiff’s solitude
or seclusion.” Polay, 10 N.E.3d at 1126 (cleaned up); see also
M.G.L. ch. 214, § 1B.

Whether such an intrusion meets the

prerequisites of being unreasonable, substantial and serious
typically “presents a question of fact.” Id.; see also
Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409
Mass. 514, 519-21, 567 N.E.2d 912, 915-16 (Mass. 1991)
(explaining that facts concerning the purpose, tone and length
of the calls at issue, as well as the amount of disruption to
the plaintiff’s daily routine, were relevant factors to
consider).
In the pending case, there are no genuinely disputed facts
about the purpose, tone or duration of the calls which would
support a finding that there was an “unreasonable, substantial,
or serious interference with [plaintiff’s] privacy.” M.G.L. ch.
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214, § 1B.

Nor is there any indication in the record that the

timing of the calls interfered with plaintiff’s daily routine.
Cf. Watkins v. Glenn Assocs., Inc., No. 15-CV-3302-H, 2016 WL
3224784, at *3 (Mass. Super. June 10, 2016) (finding that the
defendant’s conduct had been “insidiously and obviously
designed” to interfere with the privacy of the plaintiff’s
dinner hour).
The only fact which suggests there was an invasion of
personal privacy here is the number of calls plaintiff received
(i.e. there were multiple occasions on which he received two or
more calls within a seven-day period, especially during the
summer of 2018). See Schlesinger, 567 N.E.2d at 915 n.6 (noting
that the context of debt collection calls, what is said by the
caller, and the number of calls are the “most important factors”
to consider).

Even then, the primary basis for his claim of

invasion of personal privacy is that Nightingale later saw
missed calls associated with defendants show up on the caller
identification of his publicly-listed phone.
Furthermore, in view of plaintiff’s testimony, the sphere
of privacy he maintained with respect to unwanted incoming calls
is limited. Id. at 915 and n.6 (holding that a plaintiff who
permits his telephone number to be public information “has
lessened his expectation of privacy” and that a debtor “has a
lower expectation of privacy” with respect to calls from his
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creditor).

Specifically, plaintiff testified that he actively

used his phone to engage in other communications with defendants
and kept his number publicly posted on his website despite the
fact that it led to his being “attacked by scammers a lot.” Id.
at 915-16 (explaining that a privacy right may be relinquished
by a plaintiff who engages in certain activities or places
oneself in “contexts where his legitimate expectation of privacy
is reduced”).
Viewing the facts in the light most favorable to plaintiff,
the Court concludes that a reasonable fact-finder could
determine that the calls placed by defendants were unreasonable
relative to their purpose but could not determine that they
caused a substantial or serious intrusion upon the sphere of
personal privacy maintained by Nightingale. See Nelson v. Salem
State Coll., 446 Mass. 525, 536, 845 N.E.2d 338, 348 (2006) (an
actionable invasion of privacy “must be both unreasonable and
substantial or serious”).
Plaintiff nevertheless cites Tyler in support of his
argument that there was a cognizable invasion of privacy in the
pending case. See 984 N.E.2d at 746.

In that decision, the SJC

held that a merchant who has acquired personal information in
violation of M.G.L. c. 93A, § 105(a) causes a separate and
distinct injury by then using that information for its own

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business purposes, and it noted that the conduct at issue
violated Section 9 because it
represents an invasion of the consumer's personal
privacy causing injury or harm worth more than a
penny[.]
Id. at 746 n.20.
The § 105(a) violation in Tyler was premised upon the
improper acquisition of personal information during a credit
card transaction.

Thus, the subsequent use of such personal

information to send the customer unwanted marketing material
necessarily implied a distinct misuse of closely held, personal
information and the invasion of personal privacy.

On the facts

of the case at bar, to the contrary, there is no background
context of ill-gotten personal information and it would be
improper to infer that the collection calls to Nightingale,
standing alone, caused an invasion of Nightingale’s personal
privacy. Cf. Mahoney v. Wells Fargo Bank, N.A., 2021 WL 1178377,
at *14 (D. Mass. Mar. 29, 2021) (drawing inference of an
invasion of personal privacy where plaintiff was also asked
“questions of a personal nature” during the unwanted phone
calls).

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ORDER
For the foregoing reasons, defendants’ motion for summary
judgment (Docket No. 73) is ALLOWED.
So ordered.

__/s/ Nathaniel M. Gorton___
Nathaniel M. Gorton
United States District Judge
Dated:

May 19, 2023

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