CHISHOLM v. AFNI, INC.
Filing
30
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 11/22/16. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SAMUEL CHISHOLM,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-3625(JBS/JS)
v.
AFNI, INC.,
OPINION
Defendant.
APPEARANCES:
Amy L. Bennecoff Ginsburg, Esq.
Kimmel & Silverman, P.C.
1930 E. Marlton Pike, Suite Q29
Cherry Hill, NH 08003
-andMatthew Brian Gross, Esq.
Kimmel & Silverman, P.C.
30 East Butler Pike
Ambler, PA 19002
Attorneys for Plaintiff
Jason J. Oliveri, Esq.
Concepcion A. Montoya, Esq.
Hinshaw & Culbertson LLP
800 Third Avenue, Third Floor
New York, NY 10022
Attorneys for Defendant
SIMANDLE, Chief Judge:
INTRODUCTION
Plaintiff Samuel Chisholm brings this case against
Defendant AFNI, Inc., alleging violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.,
and the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §
227, arising from telephone calls placed in connection with
Defendant’s efforts to collect a consumer debt. Before the Court
is Defendant’s motion for summary judgment.
The principal issue is whether a series of 18 telephone
calls from a debt collector, of which 17 were unanswered and one
where the recipient hung up, unaccompanied by harsh or
threatening language or back-to-back calls, could reasonably be
found to violate the FDCPA and the TCPA. For the reasons that
follow, the Court will grant Defendant’s motion because, upon
the facts of this case, as to which there is no genuine dispute,
Plaintiff cannot prevail as a matter of law.
BACKGROUND1
Plaintiff Samuel Chisholm had an account with DirecTV which
became delinquent at some point and was referred on April 28,
2015 to Defendant AFNI for collection. (Montoya Decl. Ex. 6,
Deposition of Samuel Chisholm (“Chisholm Dep.”), at 35:17-25.)
Plaintiff provided his cellular telephone number to DirecTV as
part of his contract with the company. (Montoya Decl. Ex. 4,
Plaintiff’s Responses to Defendant’s First Requests for
Admission, at ¶ 6.) DirecTV provided Defendant with information
1
The Court distills this undisputed version of events from the
parties’ statements of material facts, affidavits, and exhibits,
and recounts them in the manner most favorable to Plaintiff, as
the party opposing summary judgment.
2
regarding Plaintiff’s delinquent account, including Plaintiff’s
name, home address, and telephone number. (McKeighan Aff. ¶¶ 56.)
On April 30, 2015, Defendant sent Plaintiff a collection
letter, or Validation Notice, and attempted to contact him on
his cell phone. (McKeighan Aff. ¶¶ 7 & 10; see also Ex. A,
Account Notes; Ex. C, Validation Notice.) Defendant placed the
following calls to Plaintiff’s cell phone: twice on April 30,
2015; once on May 1, 2015; once on May 2, 2015, twice on May 4,
2015; three times on May 5, 2015; once on May 6, 2015; twice on
May 7, 2015; twice on May 8, 2015; once on May 9, 2015; twice on
May 11, 2015; and once on May 12, 2015. (McKeighan Aff. ¶ 7; see
also Ex. A.) On May 18, 2015, Defendant received a letter from
Plaintiff’s attorney that all communication with him should be
directed to his attorneys. (McKeighan Aff. Ex. D, Letter from
Kimmel & Silverman P.C. to AFNI, Inc.) Consistent with its
policy, AFNI then coded Plaintiff’s account as a “cease and
desist” account and stopped all calls. (McKeighan Aff. ¶ 12; see
also Ex. A.) In all, Defendant placed 18 calls in 13 days.
Plaintiff attempts to dispute the number and frequency of
these calls. According to Defendant, AFNI’s electronic account
notes recorded 18 calls to Plaintiff’s cell phone during those
two weeks, with no more than three calls in a single day over
the course of a few hours, and most days with only a single call
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(see McKeighan Aff. Ex. A). Those numbers are corroborated by
Plaintiff’s cell phone records produced by T-Mobile. (See
Montoya Decl. Ex. 5, T-Mobile Response to Subpoena Served on
Metro PCS [Docket Item 21-2].) Defendant reached Plaintiff by
phone only one time, when an AFNI representative identified
himself and asked to speak with Mr. Chisholm, who hung up
seconds later. (McKeighan Aff. Ex. B, Audio Recording of April
30, 2015 Call; Montoya Decl. Ex. 7, Transcript of April 30, 2015
Call.) This is the only recorded evidence of any dialogue
between Plaintiff and Defendant’s representatives. The other 17
call attempts were unanswered.
Plaintiff’s recollection differs. He maintains that he
received calls from AFNI “that were not recorded in its records,
namely that he received calls from AFNI multiple times a day and
multiple days a week with calls coming in rapid succession.”
(Plaintiff’s Response to Defendant’s Statement of Material Facts
¶ 1.) Although he could not recall specifics, and kept no
contemporaneous records of such calls, Plaintiff testified at
his deposition that he received calls “multiple times during the
day” (Chisholm Dep. at 90:13-14) or “five times in one day,”
(id. at 116:25-117:1; see also Montoya Decl. Ex. 3, Plaintiff’s
Responses to Defendant’s First Set of Interrogatories, at ¶ 18),
that Defendant “would call and hang up, like two minutes later
call [back],” (Chisholm Dep. at 92:1-2), and that Defendant used
4
an automated dialing machine to leave prerecorded messages on
his voicemail. (Id. at 114:5-23.) Plaintiff also recalls
speaking with a live AFNI representative at least one more time
than AFNI’s records show, during which call he told Defendant to
stop calling, and that AFNI’s calls continued after that
conversation. (Chisholm Dep. at 92:16-24.) Essentially,
Plaintiff’s dispute arises from his belief in the inauthenticity
or inaccuracy of the records produced by AFNI and his own cell
phone carrier T-Mobile, because those records do not match his
later recollection of the 2015 calls.
Plaintiff filed this five-count action against AFNI, Inc.
on May 29, 2015, bringing claims for actual and statutory
damages pursuant to the FDCPA and TCPA arising from these
telephone calls in April and May of 2015. [Docket Item 1.] After
the parties exchanged discovery, Defendant filed the instant
motion for summary judgment. [Docket Item 21.] The motion is now
fully briefed and the Court will decide without holding oral
argument pursuant to Fed. R. Civ. P. 78.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) generally provides
that the “court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact” such
that the movant is “entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A “genuine” dispute of “material” fact
5
exists where a reasonable jury’s review of the evidence could
result in “a verdict for the non-moving party” or where such
fact might otherwise affect the disposition of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts, however, fail to
preclude the entry of summary judgment. Id.
Conclusory, self-
serving submissions cannot alone withstand a motion for summary
judgment. Gonzalez v. Sec’y of Dept. of Homeland Sec., 678 F.3d
254, 263 (3d Cir. 2012) (internal citations omitted). “When the
moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986).
In evaluating a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving
party, here the Plaintiff, and must provide that party the
benefit of all reasonable inferences.
Scott v. Harris, 550 U.S.
372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.
2014).
However, any such inferences “must flow directly from
admissible evidence [,]” because “‘an inference based upon []
speculation or conjecture does not create a material factual
dispute sufficient to defeat summary judgment.’”
Halsey, 750
F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d
6
360, 382 n. 12 (3d Cir. 1990); citing Anderson, 477 U.S. at
255).
DISCUSSION
A. FDCPA Claims
The FDCPA was enacted “to protect consumers from a host of
unfair, harassing, and deceptive collection practices without
imposing unnecessary restrictions on ethical debt collectors.”
F.T.C. v. Check Investors, Inc., 502 F.3d 159, 165 (3d Cir.
2007). “The primary goal of the FDCPA is to protect consumers
from abusive, deceptive, and unfair debt collection practices,
including threats of violence, use of obscene language, certain
contacts with acquaintances of the consumer, late night phone
calls, and simulated legal process.” Id. (citing Bass v.
Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322,
1324 (7th Cir. 1997).) “To prevail on an FDCPA claim, a
plaintiff must prove that (1) she is a consumer, (2) the
defendant is a debt collector, (3) the defendant’s challenged
practice involves an attempt to collect a debt as the Act
defines it, and (4) the defendant has violated a provision of
the FDCPA in attempting to collect the debt.” Jensen v. Pressler
& Pressler, 791 F.3d 413, 417 (3d Cir. 2015) (citing Douglass v.
Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014)). It is
undisputed that Plaintiff is a consumer, that Defendant is a
debt collector, and that Defendant was attempting to collect a
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debt owed to DirecTV. Only the fourth prong is disputed here;
Plaintiff asserts that Defendant violated §§ 1692d, 1692d(5), &
1692f2 of the FDCPA by placing at least 18 calls to his cellular
phone between April 30, 2015 and May 12, 2015.
1. Section 1692d and 1692d(5)
Section 1692d of the FDCPA makes unlawful “any conduct the
natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt.” 15 U.S.C. §
1692d. The statue identifies certain conduct that is per se “a
violation of this section,” including as relevant here, “Causing
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.” Id. at
1692d(5). Defendant argues that it is entitled to summary
judgment because Plaintiff cannot show that these 18 calls
constitute abusive conduct, sufficient for a violation of §
1692d, or that Defendant acted with an “intent to annoy, abuse,
or harass any person,” sufficient for a violation of § 1692d(5).
Plaintiff opposes summary judgment on two grounds: first, that
the number of calls made to Plaintiff’s cell phone is a material
2
Count IV of the Complaint additionally alleges a violation of §
1962g(a). Plaintiff concedes that summary judgment is warranted
on this claim. (Pl. Opp. Br. at 12.) Accordingly, Defendant’s
motion for summary judgment is granted as to Count IV.
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disputed fact, and second, that the harassing or abusive nature
of the calls presents a question for a jury.
The Court must first decide whether there is a genuine
dispute of material fact over the number of calls made during
the two weeks in April and May of 2015, as Plaintiff claims; the
number, frequency, and timing of the phone calls is an important
factor in determining whether Defendant’s conduct constitutes
harassing or abusive behavior. Plaintiff has submitted his own
sworn deposition testimony and discovery responses to support
his subjective assertion that AFNI representatives called more
than the 18 instances documented in AFNI’s Account Notes and TMobile’s call logs.
In opposition to summary judgment, a party must support its
assertion of a genuine dispute of fact by “citing to particular
parts of the materials in the record.” Fed. R. Civ. P.
56(c)(1)(A). “Unsupported assertions, conclusory allegations, or
mere suspicions are insufficient to overcome a motion for
summary judgment.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d
249, 252 (3d Cir. 2010). “Even a party’s sincere belief that an
event occurred on a particular date, when confronted by strong,
contemporaneous documentation to the contrary, may not suffice
to create a genuine issue of fact.” Simone v. Narducci, 262 F.
Supp. 2d 381, 386 (D.N.J. 2003). In this case, Plaintiff’s
assertions as to the quantity and frequency of calls are
9
supported only by his vague, post-hoc recollections and
contradicted by contemporaneous documentary evidence from his
own cell phone carrier and from Defendant’s contemporaneous
telephone logs. Sworn affidavit and deposition testimony,
“without substantive documentation of these phone calls,” will
not do. Derricotte v. Pressler & Pressler, LLP, Case No. 101323, 2011 WL 2971540, at *4 (D.N.J. July 19, 2011). The Court
finds that Plaintiff’s proofs only raise a metaphysical doubt
about the number of calls placed by Defendant’s representatives,
which is simply not enough to create a genuine issue. When
plaintiff’s testimony is viewed alongside the objective evidence
in the record that establishes the number, time, and duration of
each call, no rational trier of fact could find for Plaintiff as
to a greater number or intensity of calls. As such, the record
establishes that Defendant placed only 18 calls to Plaintiff
over the course of two weeks, all of which came between the
hours of 9:30 a.m. and 7 p.m. and only one of which resulted in
voice to voice contact of very brief duration.
Courts generally allow juries to decide whether a debt
collector’s conduct is annoying, abusive or harassing. Rush v.
Portfolio Recovery Assocs., 977 F. Supp. 2d 414, 429 (D.N.J.
2013). “Actual harassment or annoyance turns on the volume and
pattern of calls made,” and “[t]here is no consensus as to the
amount and pattern of calls necessary for a court to infer a
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debt collector intended to annoy, abuse, or harass a debtor.”
Turner v. Professional Recovery Servs., Inc., 956 F. Supp. 2d
573, 578 (D.N.J. 2013). Nonetheless, “if the conduct has – or
does not have – the natural consequence of harassing, oppressing
or abusing the consumer as a matter of law, summary judgment is
appropriate.” Derricotte, 2011 WL 2971540, at *3 (citing Regan
v. Law Offices of Edwin A. Abrahamson & Assocs., 2009 WL
4396299, at *6 (E.D. Pa. Dec. 1, 2009)). Courts around the
country have held that the number of calls alone cannot violate
the FDCPA; a plaintiff must also show some other egregious or
outrageous conduct in order for a high number of calls to have
the “natural consequence” of harassing a debtor. Turner, 956 F.
Supp. 2d at 580; see also Shand-Pistilli v. Professional Account
Servcs., Inc., Case No. 10-1808, 2011 WL 2415142, at *5 (E.D.
Pa. June 16, 2011) (noting that, while “an immediate callback
after the debtor has hung up . .
. may constitute improper
harassment, . . . [a] debt collector does not necessarily engage
in harassment by placing one or two unanswered calls in a day in
an unsuccessful effort to reach the debtor, if this effort is
unaccompanied by any oppressive conduct such as threatening
messages.”); Pace v. Portfolio Recovery Assocs., LLC, 872 F.
Supp. 2d 861, 864 (W.D. Mo. 2012) (“It has been held that the
number of calls, without more, does not constitute evidence of a
violation of the FDCPA.”); Durthaler v. Accounts Receivable
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Mgmt., Inc., 854 F. Supp. 2d 485, 491-92 (S.D. Ohio 2012)
(granting summary judgment on § 1692d claim where 32 calls were
made because “[i]n the instant action, not only were the calls
not made continuously or repeatedly, there are also no
circumstances indicating the nature or context of calls were
harassing.”); Carman v. CBE Group, Inc., 782 F. Supp. 2d 1223,
1232 (D. Kan. 2011) (“In this case, the Court finds there is no
evidence of an unacceptable pattern of calls. The record is
lacking any indicia of the type of egregious conduct raising
issues of triable fact when coupled with a high call volume.”);
Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1229
(“None of the egregious conduct identified above is present in
this case. Ms. Arteaga presents no evidence that Asset called
her immediately after she hung up, called multiple times in a
single day, called her place of employment, family, or friends,
called at odd hours, or called after she requested Asset to
cease calling.”); Tucker v. The CBE Group, Inc., 710 F. Supp. 2d
1301, 1305 (M.D. Fla. 2010) (granting summary judgment on §
1692d(5) claim where Plaintiff alleged violation based only on
frequency of calls, noting that “[w]hile the number of calls
made during the relevant time period does seem somewhat high,
Defendant left only a total of six messages, made no more than
seven calls in a single day, and did not call back the same day
after leaving a message.”)
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The nature of the telephone calls in this case does not
strike the Court as excessive or harassing: Defendant’s
representatives never called more than three times in one day,
with at least three hours between attempts, each was unanswered,
and all during regular business hours between the hours of 9:30
a.m. and 7 p.m.; Plaintiff was not called every day during the
relevant time period; only one call resulted in actual voice
contact with Plaintiff; the transcript of that call shows that
Defendant’s representative conducted himself politely and the
duration was less than 40 seconds; and Defendant immediately
ceased calling Plaintiff upon receiving a letter from his lawyer
on May 18, 2015. Plaintiff has pointed to no harassing,
threatening or vulgar language. See McKeighan Aff. Ex. A.
In the present case, no reasonable jury could find that the
quantity, frequency, and proximity of the telephone calls
demonstrates conduct, the natural consequence of which is to
harass, oppress, or abuse the plaintiff under § 1692d. There is
no way to interpret these undisputed facts other than to
conclude that Defendant’s representative was attempting to make
normal and permissible contact with Mr. Chisholm regarding his
overdue debt to DirecTV. Defendant placed 18 calls over a period
of two weeks, of which 17 were unanswered. All were during
normal business hours. The single instance of voice contact
lasted a matter of seconds before Plaintiff hung up. There was
13
no intemperate or improper language, let alone threats,
vulgarity or insistence. There were no back-to-back calls.
Defendant’s representative immediately heeded Plaintiff’s only
request to stop calling. The FDCPA was not intended to prevent
debt collectors from contacting debtors at all, or to “impose
unnecessary restrictions” on ethical collectors. Check
Investors, 502 F.3d at 171. By its own terms, the purpose of the
FDCPA is to “eliminate abusive debt collection practices by debt
collectors” while insuring that “debt collectors who refrain
from using abusive debt collection practices are not
competitively disadvantaged.” 15 U.S.C. § 1692 (emphasis added).
The standard for deciding when conduct is harassing, oppressive,
or abusive is an objective one, turning on the “natural
consequences” of a debt collector’s conduct. 15 U.S.C. § 1692d.
That Mr. Chisholm now professes to have subjectively felt
annoyed by the calls does not change the objective assessment of
Defendant’s conduct.
In other words, based upon this undisputed evidence the
Defendant is entitled to summary judgment as a matter of law.
There is no admissible evidence from which a jury could find for
Plaintiff under § 1692d or § 1692d(5). For these reasons, the
Court will deny Defendant’s motion for summary judgment as to
Counts I and II of the Complaint.
2. Section 1692f
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Plaintiff also seeks relief under § 1692f, a provision of
the FDCPA which makes unlawful “unfair or unconscionable means
to collect or attempt to collect any debt.” 15 U.S.C. § 1692f.
This section “is considered to be a catch-all provision for
conduct that is unfair but is not specifically identified in any
other section of the FDCPA.” Rush, 977 F. Supp. 2d 414, 432
(D.N.J. 2013.) “Courts have therefore determined that § 1692f
cannot be the basis of a separate claim for complained of
conduct that is already explicitly addressed by other sections
of the FDCPA, and routinely dismiss § 1692f claims when a
plaintiff does not identify misconduct beyond that which he
asserts violates other provisions of the FDCPA.” Id. (quoting
Turner, 956 F. Supp. 2d at 580 and Christy v. EOS CCA, 905 F.
Supp. 2d 648, 656 (E.D. Pa. 2012)) (internal citations
omitted).)
Here, because Plaintiff’s § 1692f claim is premised on the
same conduct as his § 1692d and § 1692d(5) claims – the cell
phone calls – he cannot maintain a separate cause of action.
Perhaps because there was almost no verbal exchange between
Plaintiff and Defendant, the Plaintiff has pointed to no
evidence of “unfair or unconscionable” conduct. Absent any
evidence in the record of other allegedly unfair conduct, the
Court will grant Defendant’s motion for summary judgment as to
Count III of the Complaint for violation of § 1692f.
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B. TCPA Claim
“Enacted in 1991 as part of the Federal Communications
Act,” the TCPA seeks to address “an increasingly common
nuisance—telemarketing.” Erienet, Inc. v. Velocity Net, 156 F.3d
513, 514 (3d Cir. 1998). The TCPA prohibits, inter alia, the use
of “any automatic telephone dialing system or an artificial
voice” to call “any telephone number assigned to a . . .
cellular telephone service” unless the call is “made for
emergency purposes or made with the prior express consent of the
called party.” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA
accordingly enables an aggrieved individual or entity to bring a
private right of action to recover the greater of the party’s
“actual monetary loss” from the TCPA violation, or “$500 in
damages for each such violation[.]”
47 U.S.C. § 227(b)(3)(A)-
(C).
Here, the parties dispute whether Plaintiff provided
express consent to be called on his cell phone. Defendant
contends that it is entitled to summary judgment on this claim
for two reasons: first, because Plaintiff provided prior express
consent to DirecTV to contact him by providing his phone number
and address as part of his written contract for television
service, and that consent extended to AFNI when DirecTV assigned
Plaintiff’s delinquent account to AFNI for collection; and
second, because Plaintiff cannot show that Defendant used an
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automatic dialing system or an artificial voice in its calls.
Plaintiff argues that summary judgment is inappropriate because
there are factual disputes regarding his consent and Defendant’s
use of prerecorded voices. However, for the reasons that follow,
the Court finds that these disputes are not genuine and that
Defendant is entitled to summary judgment on this claim.
Under the TCPA, “persons who knowingly release their phone
numbers have in effect given their invitation or permission to
be called at the number which they have given, absent
instructions to the contrary.” Rules and Regulations
Implementing the Consumer Protection Act of 1991, 7 FCC Rcd.
8752, 8769 (1992). With respect to calls from a creditor
regarding a particular debt, “prior express consent is deemed to
be granted only if the wireless number was provided by the
consumer to the creditor, and that such number was provided
during the transaction that resulted in the debt owed.” Rules
and Regulations Implementing the Consumer Protection Act of
1991, 23 FCC Rcd. 559, 564-65 (2008). Prior express consent
extends to “[c]alls placed by a third party collector on behalf
of that creditor.” Id. It is the creditor’s burden to
demonstrate that a consumer provided prior express consent.
Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355, 366 (3d
Cir. 2015).
17
In this case, it is undisputed that Plaintiff had a written
contract with DirecTV for cable television service, that he
provided his address and phone number to DirecTV, and that
Defendant called Plaintiff to collect on that debt after DirecTV
referred the account to AFNI. (Chisholm Dep. at 35:17-36:20; see
also Plaintiff’s Responses to Defendant’s First Requests for
Admission, at ¶ 6.) Plaintiff contends that this is insufficient
to show “prior express consent” to be called by DirecTV because
“[t]here is no evidence in the record about whether the phone
number was given to DirecTV during the transaction that resulted
in the debt as opposed to updating them later.” (Pl. Opp. Br. at
14.) Plaintiff’s dispute is purely hypothetical: although it is
possible that he did not provide this phone number when he
opened the DirecTV account that eventually became the consumer
debt at the center of this dispute, he can point to nothing in
the record that shows that he provided his cell phone number to
DirecTV at some later date, after signing his contract. “The
mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). Accordingly, the Court finds that Defendant has set
forth undisputed facts showing that Plaintiff provided prior
18
express consent to be called by a creditor or a third party
collector about his DirecTV account.
Furthermore, Plaintiff has not created a genuine dispute
over whether he revoked that consent.3 Although Plaintiff
presents deposition testimony that he asked AFNI to stop calling
him during “the second call I got after the first call” (see
Chisholm Dep. at 92:16-24), Plaintiff’s account is contradicted
by the actual transcript and audio recording of that call. (See
McKeighan Aff. Ex. B, Audio Recording of April 30, 2015 Call;
Montoya Decl. Ex. 7, Transcript of April 30, 2015 Call.) Again,
Plaintiff cannot use his recollection to contradict the clear
content of the conversation in which he participated, reflected
in the recording and in the transcript thereof. This is a false
dispute of fact, not a genuine one.
For these reasons, the Court will grant Defendant’s motion
for summary judgment as to Plaintiff’s TCPA claims in Count V of
the Complaint.
3
Because Defendant has shown that Plaintiff provided consent to
be called about the DirecTV debt at the center of this dispute,
and therefore cannot be liable under the TCPA, the Court need
not reach the question of whether Defendant used an autodialing
system or prerecorded voice to place its calls.
19
CONCLUSION
An accompanying Order will be entered.
November 22, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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