Higgs v. Diversified Consultants, Inc.

Filing 49

ORDER granting 18 defendant Diversified Consultants, Inc.'s motion for summary judgment and denying as moot all remaining pending motions. Signed on 4/8/14 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNTED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RICHARD LAWRENCE HIGGS,
Plaintiff,
vs.
DIVERSIFED CONSULTANTS, INC.
Defendant.

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Case No. 4:13-cv-00278-FJG

ORDER
Pending before the Court is Defendant Diversified Consultants, Inc.’s Motion for
Summary Judgment (Doc. No. 18).
I.

Background/Facts
On March 19, 2013, plaintiff filed his Complaint (Doc. No. 1) in the United States

District Court for the Western District of Missouri. On April 12, 2013, defendant filed an
answer to plaintiff’s complaint.
Plaintiff Richard Higgs (“Higgs” or “Plaintiff”) alleges in his complaint that
Defendant Diversified Consultants, Inc. (“Diversified” or “Defendant”) violated the
FDCPA during certain collection telephone calls Defendant made arising out of
Plaintiffs’ failure to pay delinquent debt. See (Doc. No. 18, p. 1). The parties stipulate
that at some point in the past, Plaintiff retained an account with AT&T Mobility (“AT&T
Mobility Account”), and at some point, the account was not paid and went into default.
See (Doc. No. 23, ¶ 4). Once the account went into default, it was turned over to
Defendant, who is in the business of debt collections. (Doc. No. 23, ¶ 3).

In the year prior to the filing of this lawsuit, Defendant made debt collection calls
to Plaintiff. See (Doc. No. 23, ¶ 6). Defendant spoke to Plaintiff on two occasions—once
on January 21, 2013 and once more on February 7, 2013. (Doc. No. 23, ¶ 7). The
phone calls that occurred during the period between the first and second occasions
Defendant spoke to Plaintiff are the sole basis for the cause of action. (Doc. No. 23, ¶
30).
During the January 21, 2013 call, a recording reflects that an operator for
Defendant contacted Plaintiff “in regards to [his] AT&T Mobility account.” (Pye Dep.
11:17:12:19; Doc. No. 18, p. 3). Plaintiff responded that he did not “have any money
right now,” and that he “can’t do anything.” (Doc. No. 23, ¶ 9). Defendant notified
Plaintiff the status of his account would change to CNP (cannot pay), and that
“unfortunately the collection activity will continue.” (Doc. No. 23, ¶ 9). Between January
22, 2013 and February 6, 2013, Defendant made a total of 36 phone calls to Plaintiff to
attempt to collect the debt, with no more than four calls a day, averaging 2.25 calls per
day over the 16-day period. See (Doc. No. 23, ¶ 26). On February 7, 2013, Plaintiff
made an inbound call requesting Defendant stop calling and opining that he would not
pay. (Doc. No. 23, ¶ 27-28). Subsequent to Plaintiff’s request on February 7, 2013,
Defendant ceased calling Plaintiff. (Doc. No. 23, ¶ 29).
Plaintiff asserts defendant violated 15 U.S.C. §§ 1692d and 1692d(5), arguing
that the calls placed between January 21, 2013 and February 7, 2013, were made with
the intent to harass, oppress, or abuse in the connection with the collection of debt.
(See Doc. No. 24, p. 6). Defendant maintains in the motion for summary judgment
(Doc. No. 18), however, that (1) the purpose of the calls during the period was “[t]o find
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out when [Plaintiff] could pay, to attempt to collect the debt.” Pye Dep. 17:23-18:4; Doc.
No. 18, ¶ 9, 14), (2) Plaintiff failed to either refute the debt or request communications to
cease during the period of alleged harassment; (3) the volume of Defendant’s calls to
Plaintiff were well within the bounds of an acceptable volume; and (4) during the two
occasions Defendant spoke with Plaintiff, the recordings of the calls reflect there was
nothing harassing or abusive regarding the substance of the calls.
II.

Standard
Summary judgment is appropriate if the “pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). When considering summary judgment, a district court must view the
facts “in the light most favorable to the nonmovant, giving it the benefit of all reasonable
inferences to be draw from the facts.” Woodsmith Publ'g Co. v. Meredith Corp., 904
F.2d 1244, 1247 (8th Cir.1990). The moving party is entitled to summary judgment as a
matter of law if they can carry the burden of establishing “there is no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505 (1986).
Once the moving party has met this burden, the nonmoving party may not rest on
the allegations in the pleadings, but by affidavit or other evidence, must set forth facts
showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(c); Lower Brule
Sioux Tribe v. South Dakota, 104 F.3d 1017, 1021 (8th Cir. 1997). Summary judgment is
not appropriate if a reasonable jury could find for the nonmoving party. Woodsmith, 904
F.2d 1244; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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III.

Defendant Diversified Consultants, Inc.’s Motion for Summary Judgment
(Doc. No. 18)
Defendant asserts that summary judgment in its favor is appropriate, as Plaintiff

has failed to produce any evidence demonstrating Defendant’s intent to harass,
oppress, or abuse in the connection with the collection of debt under 15 U.S.C. §§
1692d and 1692d(5). Plaintiff asserts that any calls made subsequent to his statement
that he “could not pay” were made with the intent to harass, oppress, or abuse.
Defendant argues that no intent to harass, oppress, or abuse exists because the debt
collector was only attempting to find out when Plaintiff could pay to fully collect on the
debt owed.
The standard to be applied regarding the alleged cause of action under 15
U.S.C. 1692d is objective, based on the “unsophisticated customer” perspective. Peters
v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1055 (8th Cir.2002). The “unsophisticated
customer” test protects customers of below average sophistication or intelligence, but
includes an objective element of reasonableness. VanHorn v. Genpact Services, LLC,
2011 WL 4565477, Case No. 09–1047–CV–S–GAF at *5 (W.D. Mo. Feb. 14, 2011).
This court has previously denounced a solely subjective standard offered by the plaintiff
on the grounds that it does not comport with the language or purpose of the FDCPA or
existing case law. Id.
In Pace v. Portfolio Recovery, 872 F.Supp.2d 861 (W.D. Mo. 2012) this court
stated, “Ordinarily, whether conduct harasses, oppresses, or abuses will be a question
for the jury, yet, not all circumstances of persistently calling a debtor constitute
harassment.” Id. at 864 (quoting VanHorn, 2011 WL 4565477 at *3). In discussing
Section 1692d, Pace stated that a reading of the statute’s entirety reveals “absent
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egregious conduct or intent to annoy, abuse, or harass, a debt collector does not violate
the FDCPA by persistently calling in an attempt to reach a debtor regarding a debt owed
and due.” Id. at 865. The debtor has the burden to establish that the debt collection
agency acted with intent to harass and annoy, as would violate the Fair Debt Collection
Practices Act (FDCPA). Id.
Intent to annoy, abuse, or harass is normally a question for the jury, however it is
not uncommon for a court to rule on a motion for summary judgment. See Pace, 872
F.Supp. at 864. A genuine issue of a material fact of intent has been found in
circumstances where the debt collector made over ninety calls to debtor’s home, called
back immediately after the debtor hung up, failed to identify itself during these calls, and
the debt collector repeatedly called the debtor even after receiving a “cease and desist”
letter from debtor. VanHorn, 2011 WL 4565477 at *3 (citing Fausto v. Credigy Sevrs.
Corp., 598 F.Supp.2d 1049 (N.D.Cal.2009)). On the other hand, courts have found no
genuine issue of material fact of intent to annoy, abuse, or harass exists when the debt
collector made all calls during the protected calling hours 1, and on one occasion, the
debtor requested the debt collector not call. VanHorn, 2011 WL 4565477 at *4.
Summary judgment has also been granted to the defendant when the debt collector
made fifty-seven phone calls to debtor, including seven in one day, because the debt
collector never spoke with the debtor, was never asked to cease calling, and never
called back on the same day a voice message was left for debtor. VanHorn, 2011 WL
4565477 at *4 (citing Tucker v. CBE Grp., Inc., 710 F.Supp.2d 1301 (M.D. Fla. 2010).
See also Durthaler v. Accounts Receivable Management, Inc., 854 F.Supp.2d 485, 489-

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Protected calling hours are after 8 a.m. and before 9 p.m., local time at the consumer’s location, absent
knowledge of circumstances to the contrary. 15 U.S.C. § 1692c(a)(1).

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92 (S.D. Ohio 2012) (collecting cases). Even in scenarios where the plaintiff had orally
requested multiple times that the defendant cease calls, because the plaintiff did not
identify himself or send a cease and desist letter comporting with the defendant’s policy,
the defendant’s activity was found insufficient to rise to the level of harassment under
Section 1692d. Vanhorn, 2011 WL 4565477 at *4.
Plaintiff’s claim rests on the allegation that any calls made subsequent to his
statement on January 21, 2013 that he “does not have any money right now” were
made with the natural consequence to harass a person in connection with the collection
of a debt. Defendant, however, notes that courts typically consider two types of
evidence as intent to harass regarding § 1692d(5): (1) where the plaintiff has shown that
he asked the collection agency to stop calling or has informed the collection agency that
it has the wrong number, and the collection agency nevertheless continued to call the
plaintiff, and (2) where the volume of and pattern of the calls may themselves evidence
an intent to harass. Hendricks v. CBE Grp., 891 F. Supp. 2d 892, 896 (N.D. Ill. 2012).
Although Plaintiff did allude to not being able to pay his bill, he did not explicitly ask
Defendant to stop calling, nor does Plaintiff allege sending a written letter requesting the
calls cease. In fact, Plaintiff was aware his statements during the call on January 21,
2013 would not prevent him from receiving calls in the future, as the operator informed
him that “unfortunately, the collection process will continue.” The court finds that viewed
in the light most favorable to Plaintiff, his statements were at best a conclusion he
currently could not pay – not a request for the calls to cease – which does not prevent
the debt collector from attempting to determine when Plaintiff could pay the debt under
§ 1692d.
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Where the volume and pattern of the calls themselves has been found as
evidence to harass under § 1692d(5), the calls in those scenarios were typically made
early in the morning, late in the evening, in quick succession, or excessively in one day.
VanHorn, 2011 WL 4565477 at *4 (citing Fausto v. Credigy Sevrs. Corp., 598
F.Supp.2d 1049 (N.D.Cal.2009)). According to the call logs and stipulated facts,
Defendant called Plaintiff an average of 2.25 times per day, did not call more than four
times in one day, and the calls were not alleged to be outside the protected calling
periods. As discussed above, this court, as well as others, has found even greater
volumes insufficient to support a claim that this constituted harassment. Plaintiff has not
shown egregious conduct in Defendant’s debt collection actions.
Applying the unsophisticated customer standard and viewing the facts in the light
most favorable to Plaintiff, the Court finds that no reasonable jury could find that
Defendant violated 15 U.S.C. §§ 1692d or 1692d(5). Therefore, defendant’s motion for
summary judgment should be granted as a matter of law.
IV.

Conclusion
Therefore, for the foregoing reasons, Defendant Diversified Consultants, Inc.’s

Motion for Summary Judgment (Doc. No. 18) is GRANTED.

All remaining pending

motions are DENIED AS MOOT.
IT IS SO ORDERED.
Date: April 8, 2014
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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