MARTINEZ v. TD BANK USA, N.A.

Filing 67

OPINION. Signed by Judge Jerome B. Simandle on 6/30/17. (dd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CHARLENE MARTINEZ,
individually and on behalf of
all others similarly situated,
Plaintiff,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 15-7712(JBS/AMD)

v.
OPINION
TD BANK USA, N.A., a National
Bank, and TARGET CORPORATION,
a Minnesota corporation
Defendants.

APPEARANCES:
Stefan Louis Coleman, Esq.
1072 Madison Ave., Suite 1
Lakewood, NJ 08701
Attorney for Plaintiff
Jarrod D. Shaw, Esq.
MCGUIRE WOODS LLP
625 Liberty Avenue, 23rd Floor
Pittsburgh, PA 1522
Attorney for Defendants

SIMANDLE, Chief Judge:
INTRODUCTION
Plaintiff Charlene Martinez brings this putative class
action against Defendants TD Bank USA, N.A. (“TD Bank”) and
Target Corporation (“Target”), alleging violations of the
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and
a California law entitled the Rosenthal Fair Debt Collection

Practices Act (“RFDCPA”), Cal. Civ. Code §§ 1788-1788.33,
arising from telephone calls placed in connection with
Defendants’ efforts to collect a consumer debt from Plaintiff’s
credit card. [Docket Item 25.] The Court previously dismissed
Plaintiff’s claim under California’s Unfair Competition Law
(“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq., for lack of
standing. [Docket Items 60 & 61.] Before the Court is
Defendants’ motion for summary judgment, or, in the alternative,
to strike Plaintiff’s class allegations. [Docket Item 54.]
Plaintiff has filed a Response [Docket Entry 57] and Defendants
have filed a Reply [Docket Entry 62].
Defendants argue, first, that there is no genuine dispute
of material fact regarding whether Defendants violated the TCPA
because Plaintiff provided prior express consent before all of
the calls at issue and did not revoke that consent before any of
the calls were made. Second, Defendants argue that there is no
genuine dispute of material fact as to whether harassment
occurred within the meaning of the RFDCPA and summary judgment
in their favor is appropriate. Defendants also argued that they
were entitled to summary judgment as to Plaintiff’s UCL claim,
as that claim had not yet been dismissed at the time when
Defendants filed the instant motion. Finally, Defendants argue
that Plaintiff’s class allegations should be stricken as they
improperly propose a fail-safe class.
2

For the reasons set forth below, the Court will grant in
part and deny in part Defendants’ motion for summary judgment
and will strike Plaintiff’s class allegations.

BACKGROUND1
TD Bank is a large national bank chain that, inter alia,
“owns and underwrites a portfolio of credit card accounts.” [FAC
¶ 1.] Target is a corporation headquartered in Minnesota and
doing business in New Jersey and nationwide. [Id. at ¶ 8.]
Plaintiff Charlene Martinez, a California resident, opened
a Target credit card account in 2007. At all times relevant to
this action, Target was the servicer of her credit card account.
When Plaintiff opened the account, she agreed that Target or its
agents were permitted to call her, including her mobile
telephone, regarding her account, and that they could make such
calls using an automated dialing/announcing device. [Pl.
Statement of Material Facts in Opp., Docket Item 58 ¶¶ 1-3.]
Plaintiff obtained the cell phone number at issue here,
ending in -2420, in 2011. When she updated her account

1

For purposes of the instant motion and pursuant to Local Civil
Rule 56.1, the Court looks to Defendants’ Statement of
Undisputed Material Facts (Docket Item 56), its supporting
exhibits, and Plaintiff’s related Response (Docket Item 58), as
well as Plaintiff’s Supplemental Statement of Undisputed
Material Facts (Docket Item 59), its supporting exhibits, and
Defendants’ Response to the Supplemental Statement (Docket Item
63).
3

information with Target on its website on September 17, 2012,
she provided this number as her “home” telephone number and
received a disclosure that stated that, by providing her phone
number on that page, she consented to receiving, at that phone
number, autodialed and prerecorded calls from Target or on
Target’s behalf. Plaintiff then clicked “Submit” after that
disclosure was provided. [Id. at ¶¶ 4-9.]
Before that date, Plaintiff had updated her account
information (e.g., her address or her phone number) in other
ways: by writing the new address on her monthly statement, by
calling Target and using Target’s automated phone system, and by
calling Target and speaking to a live customer service
representative. [Id. at ¶¶ 12(a)-(e).] At one point, Plaintiff
called Target’s customer service and spoke to a live
representative to change her phone number; on another occasion,
she called Target’s customer service and spoke to a live
representative to revoke her consent for Target to call that
number (ending in -2460). [Id. at ¶¶ 12(f) & (g).] On September
9, 2013 (almost one year after Plaintiff provided the -2420
number on Target’s website), Plaintiff called Target and
provided an updated address to a live customer service
representative; she did not provide an updated phone number
during that conversation. [Id. at ¶ 12(i).] On July 9, 2014,
Plaintiff again used Target’s website to provide an updated home
4

address and did not change the phone number from the -2420
number. [Id. at ¶ 12(j).]
Plaintiff had landline telephone service in her name from
2014 to 2015. [Id. at ¶ 13.]
Plaintiff’s Target credit card account became delinquent
sometime in late 2014; between August 29, 2014 and April 15,
2015, Target placed 165 calls to Plaintiff’s cell phone
regarding the delinquent account. [Id. at ¶¶ 14-15.] Plaintiff
concedes the accuracy of Target’s dialer records as to the
“date, time, content, and duration of Defendants’ calls to
Plaintiff.” [Id. at ¶ 16.] On 19 of those days, Plaintiff
received two calls per day; on two days, she received three
calls per day. Of the 165 calls, 162 calls had durations of 0
seconds, i.e., were not answered by Plaintiff or another party.
[Id. at ¶¶ 17(a)-(e).] On August 29, 2014, a 6-second call
occurred where the person who answered stated that Plaintiff was
not home; on August 30, 2014, a 487-second call occurred where
the person who answered promised to pay; and on April 15, 2015,
a 159-second call occurred where Plaintiff told Target she was
filing for bankruptcy. [Id. at ¶ 17(f).]
While Plaintiff initially alleged that she spoke with
Target on April 14, 2015 and told them to stop calling her, she
later amended that to state that she spoke with Target both on
April 14 and April 15; she also stated in her deposition that it
5

is possible that her memory is incorrect. While at one point
during this case, Plaintiff stated that she called Defendants to
ask them to stop calling the -2420 number, she has no record of
making such a call; generally speaking, Plaintiff cannot
contradict Target’s dialer records because she does not have any
call logs and cannot estimate the number of calls she received
between August of 2014 and April of 2015. [Id. at 18-20.]
Plaintiff alleges that on April 10, 2015, Plaintiff’s
bankruptcy attorney, Daniel Shay, faxed cease-and-desist letters
to two fax numbers, “revoke[ing] any prior express consent that
may have been given [by Plaintiff or her husband] to receive
telephone calls, especially to Clients’ cellular telephones,
from an Automated Telephone Dialing System, or a pre-recorded
voice” as outlined in the TCPA.” The letters were faxed to two
numbers: [phone] and [phone]. The transmission
report for the faxes indicated that the transmission for each
was “OK.” [Pl. Supp. Statement of Material Facts in Opp., Docket
Item 59 at ¶¶ 1-3, citing Docket Item 58-2 at ¶¶ 4 & 5 and Exhs.
1 & 2.] Defendants dispute these factual allegations inasmuch as
they “have no record of receiving the cease and desist letters.”
[Def. Response to Statement of Material Facts in Opp., Docket
Item 63 at ¶¶ 1-3.]
The [phone] number receives faxes for TD Bank,
N.A.’s Business Solutions group. However, Defendants note that
6

TD Bank, N.A. “is a different entity than the one related to the
Target REDcard.” [Docket Item 63 at ¶ 4, citing Docket Item 56-9
at 4.]
The [phone] number receives faxes for TD Bank USA,
N.A. as well as for TD Bank, N.A.; however, Defendants note that
“the number was not provided as a method to communicate
regarding the Target REDcard.” [Docket Item 63 at ¶ 5, citing
Docket Item 56-9 at 4.]
During the deposition of Target’s Rule 30(b)(6) designee,
Susan Wolf, Ms. Wolf was unable to state the fax number where
cease-and-desist letters (or other revocations of consent) could
or should be sent; however, Defendants point out, Ms. Wolf
stated that, while she did not know the number, it “might” be
found online or be given out by a customer service
representative to a caller. [Docket Item 63 at ¶ 9, citing
Docket Item 59-1 at 14-15.]
Target placed four calls to the -2420 number from April 11,
2015 to April 15, 2015. [Docket Item 63 at ¶ 6.] Target stopped
calling Plaintiff after April 15, 2015, when a Target
representative reported in Target’s account system that
Plaintiff had retained a bankruptcy attorney. [Id. at ¶ 7.]
Neither Plaintiff’s electricity bill nor her cell phone
bills increased as a result of the calls made by Defendants to

7

the -2420 number. [Docket Item 58 at ¶¶ 23-24.] Plaintiff no
longer uses the -2420 cell phone number. [Id. at ¶ 26.]

STANDARD OF REVIEW
At summary judgment, the moving party bears the initial
burden of demonstrating 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); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once a properly supported
motion for summary judgment is made, the burden shifts to the
non-moving party, who 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). In reviewing a motion for
summary judgment, the court is required to examine the evidence
in light most favorable to the non-moving party, and resolve all
reasonable inferences in that party's favor. Hunt v. Cromartie,
526 U.S. 541, 552 (1999); Wishkin v. Potter, 476 F.3d 180, 184
(3d Cir. 2007). Credibility determinations are not appropriate
for the court to make at the summary judgment stage. Davis v.
Portlines Transportes Maritime Internacional, 16 F.3d 532, 536
n.3 (3d Cir. 1994).
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a
8

verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
non-moving party “‘need not match, item for item, each piece of
evidence proffered by the movant,’” but must simply present more
than a “mere scintilla” of evidence on which a jury could
reasonably find for the non-moving party. Boyle v. Cnty. of
Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998)
(quoting Anderson, 477 U.S. at 252).

ANALYSIS
A. TCPA
Defendants argue that they are entitled to summary judgment
on Plaintiff’s claim that they violated the TCPA because there
is no genuine dispute of material fact that Plaintiff provided
her prior express consent to receiving autodialed calls to her
cell phone, and she did not receive any calls from Defendants
after revoking that consent. [Docket Item 55 at 20-26.]
In response, Plaintiff concedes that she provided consent
for Defendants to call her using an autodialer on September 17,
2012. [Docket Item 57 at 13.] However, she submits, there is a
genuine dispute of material fact as to whether Defendants
continued to call her after she revoked that consent: she
contends that she has submitted sufficient evidence for a
reasonable finder of fact to conclude that she revoked her
consent to be called on April 10, 2015 via the cease-and-desist
9

letters faxed by her bankruptcy attorney, and that she
nevertheless received four calls from April 11, 2015 to April
15, 2015, in violation of the TCPA. [Docket Item 57 at 13-18.]
To prove a violation of the TCPA, 47 U.S.C. § 227(b)(1)(A),
a plaintiff must put forth evidence that “(1) the defendant
called a cellular telephone number; (2) using an automatic
telephone dialing system; (3) without the recipient’s prior
express consent.” Van Patten v. Vertical Fitness Group, LLC, 22
F. Supp. 3d 1069, 1073 (S.D. Cal. 2014) (internal citations
omitted). If a defendant, as an affirmative defense, can show
that the called party provided his or her express consent, then
the TCPA claim will fail. Id.
Plaintiff has conceded that she provided her prior express
consent before 161 of the 165 calls were made to her cell phone.
She alleges, however, that she revoked her consent on April 10,
2015 – or that there is a genuine dispute of material fact as to
this point – and that Defendants nevertheless made four more
calls to her in violation of the TCPA.
The FCC has stated that “[c]onsumers have a right to revoke
consent, using any reasonable method including orally or in
writing”; in order for a called party to revoke his or her
consent, “the TCPA requires only that the called party clearly
express his or her desire not to receive further calls.” In re
Rules & Regulations Implementing the Tel. Consumer Prot. Act of
10

1991 (hereinafter “2015 FCC Order”), 30 F.C.C. Rcd. 7961, 799697, ¶¶ 64, 67 (July 10, 2015). In response to a concern that
“allowing [e.g.,] oral revocation puts defendant callers at a
disadvantage,” the FCC disagreed: “The well-established
evidentiary value of business records means that callers have
reasonable ways to carry their burden of proving consent. We
expect that responsible callers, cognizant of their duty to
ensure that they have prior express consent under the TCPA and
their burden to prove that they have such consent, will maintain
proper business records tracking consent. . . . We, therefore,
find that the consumer may revoke his or her consent in any
reasonable manner that clearly expresses his or her desire not
to receive further calls, and that the consumer is not limited
to using only a revocation method that the caller has
established as one that it will accept.” Id. at 7998-99, ¶ 70.
Courts, when considering whether consent was revoked under
the TCPA, have looked to common-law understandings of consent.
See Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270-271 (3d
Cir. 2013) (“Our holding that the TCPA allows consumers to
revoke their prior express consent is consistent with the basic
common law principle that consent is revocable. . . . [A]t
common law, consent may be withdrawn. Restatement (2d) of Torts
§ 892A, cmt. I (1979) (‘[C]onsent is terminated when the actor
knows or has reason to know that the other is no longer willing
11

for him to continue the particular conduct.’)”). A court should
not consider the called party’s subjective intent and should,
instead, look to the words the called party used to consider
whether the alleged revocation of consent either informed the
caller or gave the caller reason to know that the called party
was revoking his or her consent to be called. See Dixon v.
Monterey Fin. Servs., Inc., No. 15-cv-03298, 2016 WL 3456680, at
*3 (N.D. Cal. June 24, 2016).
The parties appear to agree that the substance of the
cease-and-desist letters, faxed by Plaintiff’s bankruptcy
attorney on April 10, 2015, would have sufficed to give
Defendants reason to know that Plaintiff was withdrawing her
consent to be called. The sole dispute is as to whether the
faxing of the letters to the fax numbers in question, where
Defendants submit that the evidence is clear that they never
received either letter, was a reasonable method of informing
Defendants that Plaintiff was revoking her consent.
Plaintiff has cited case law where courts have “honored
consumers’ revocation of consent through submission of a ceaseand-desist letter . . . , even where there are deficiencies with
the letter, such as failing to ‘indicate that the number [in the
request] was for a cellular phone.’” [Docket Item 57 at 15,
citing Baldwin v. Monterey Fin. Servs., Inc., No. 14-cv-2346,
2016 WL 5723734, at *5 (M.D.Pa. Sept. 30, 2016) and Gager, 727
12

F.3d at 267.] However, the alleged deficiencies in the April 10
faxes do not go to deficiencies within the letter, but rather
the deficiency in the method of communication as a whole, such
that it was no longer a “reasonable method” of revoking
Plaintiff’s consent.
The crux of Defendants’ argument that the faxing of the
cease-and-desist letters to the two numbers on April 10 was not
a reasonable method of revoking Plaintiff’s consent is that, in
the first instance, Target was the servicer of Plaintiff’s
credit card account and Target was not one of the parties faxed,
and second, neither number that was faxed was one that was
provided for consumers to use to communicate about their Target
credit card accounts. [Docket Items 55 at 25-26; 57 at 16-17.]
Furthermore, Defendants argue that they cannot be said to
have had reason to know that Plaintiff revoked her consent on
April 10, 2015 when they assert that they never received the
revocation, their business records do not reveal having received
the faxes, and Plaintiff cannot point to any evidence that they
received the faxes beyond the numbers themselves and the fact
that the faxes marked their transmission as “OK.” [Docket Items
55 at 25-26; 57 at 17-18.] Defendants argue: “Plaintiff never
actually communicated revocation of consent to someone with
responsibility for (or knowledge of) her Target REDcard.”
[Docket Item 62 at 9.] They continue: “Although the declaration
13

from Plaintiff’s bankruptcy attorney may serve as evidence that
faxes were sent, it is not evidence that they were received by
Defendants. Plaintiff’s attorney does not even provide any
detail as to how he obtained the fax numbers or why he believed
they were an appropriate method to revoke consent. Thus, the
affidavit provides no basis to infer that the faxes were
received by Defendants.” [Id. at 11 (emphasis in original).]
The Court finds that Plaintiff has not produced sufficient
evidence to allow a reasonable finder of fact to conclude that
she revoked her consent on April 10, 2015, thus allowing her
claim under the TCPA for the four calls placed from April 11,
2015 to April 15, 2015 to go forward. A reasonable finder of
fact could not conclude that faxing a letter to a fax number
only known to be associated with one party that is simply
connected to the credit card account at issue, and has never
serviced that account, cannot constitute a reasonable method of
revoking consent to be contacted regarding that account. This is
especially true where, as here, the consumer has previously
effectively revoked consent in a different manner.
The undisputed evidence is that Plaintiff’s attorney faxed
appropriately clear cease-and-desist letters to two fax numbers
associated with TD Bank, N.A., and TD Bank USA, N.A. Only the
latter entity is a party to this action, and it has never acted
as the servicer of Plaintiff’s Target credit card. Plaintiff’s
14

only evidence that the indicated fax numbers received the fax is
that the faxes were marked as their transmission having been
“OK.” The Court finds that this does not create a genuine
dispute of material fact as to whether TD Bank USA, N.A. (a
defendant in this action) knew or had reason to know of this
fax, where TD Bank USA, N.A.’s records show that it did not
receive the facts and Plaintiff has put forth no evidence to
suggest why faxing the letter to that specific fax number would
have given TD Bank USA, N.A. reason to know that she had revoked
her consent.
Further undisputed evidence shows that Plaintiff revoked
her consent to be called on a different telephone number on a
prior date using a different method, and that Defendants honored
that revocation. Plaintiff has not put forth evidence that would
tend to show why she believed that faxing her letter to the
numbers her attorney faxed on April 10 would have or should have
effectively communicated her revocation to Defendants as she
previously had, herself, done.
In Reyes v. Lincoln Auto. Fin. Servs., No. 15-0560, 2016 WL
3453651, at *2 (E.D.N.Y. June 20, 2016), the court granted
summary judgment on a TCPA claim where, despite the plaintiff’s
argument that he had revoked his consent by letter, the letter
was “merely addressed to ‘Lincoln Credit,’ with nothing more,”
was not signed by the plaintiff, the plaintiff testified that
15

the letter was a form letter, that he did not recall the address
he mailed the letter to, that he had no record that the letter
was actually sent to the defendant, and that a response letter
from the defendant concededly stated that it never received the
plaintiff’s letter revoking consent.
In Johnston v. USAA Fed. Savings Bank, No. 12-cv-02486,
2014 WL 5439965, at *3-*4 (D. Colo. Oct. 27, 2014), although the
agreement between the plaintiff and defendant required the
plaintiff to revoke his consent in a different manner, the court
found that the plaintiff’s fax to defendant requesting “that it
‘[p]lease stop immediately calling my cell phone # xxx-xxxxxxx’” could “serve to revoke his consent” under the TCPA where
“the undisputed evidence is that Defendant received Plaintiff’s
written request . . . via facsimile on Saturday, July 28, 2012.”
However, the dispute in this case is not over in what manner
Defendants and Plaintiff agreed Plaintiff could revoke her
consent, but rather whether the Defendants named in this suit
ever actually received Plaintiff’s revocation (or had reason to
know of it). In Johnston, the “undisputed evidence” was that the
defendant had received the fax. The Court therefore finds it
inapposite.
Plaintiff submits that the successful transmission of the
fax creates a question of fact for a jury. Under these
circumstances, the Court disagrees. While courts have found that
16

“a fax confirmation generated by the sender’s machine” can
create a genuine issue of fact about whether the fax was
received when the fax was absent from the intended recipient’s
relevant file, see Laouini v. CLM Freight Lines, Inc., 586 F.3d
473, 476-79 (7th Cir. 2009), but in this case, it is precisely
the intended recipient that is at issue; in addition, while the
relevant agency in Laouini “never ‘denied’” having received the
fax, the Defendants here do deny having received it. In Laouini,
the EEOC supervisor confirmed that “the number on . . . [the]
fax-transmission record is indeed the fax number attorneys are
instructed to use for submitting charges.” Id. at 475. The
Laouini decision cited In re Longardner & Assocs., Inc., 855
F.2d 455, 459, where the court ruled that, where “notice was
properly addressed, stamped and mailed, there is a presumption
that Bunn received it on behalf of the creditor. Bunn’s denial
of receipt alone does not rebut the presumption, but merely
creates a question of fact.” Here, however, the question of fact
is not necessarily created as Plaintiff urges, because there is
insufficient evidence to show that the faxes, by virtue of
having been sent to the fax numbers they were sent to, were
effectively “properly addressed.”
In Stevens Shipping & Terminal Co. v. JAPAN RAINBOW, II MV,
334 F.3d 439, 44 (5th Cir. 2003), the court ruled that a fax
confirmation sheet “created a rebuttable presumption that” a
17

party received the notice and was deemed to have actual
knowledge of its contents. This was the case even though the
party contended that the “fax machine at issue was in an area
separate from the company’s administration and was not one that
officers would use,” in part because he “conceded that the fax
number” where the fax was sent “belonged to a fax machine in the
agency department of [its] downtown corporate office” and, most
relevantly to the instant analysis, it was sent to “the fax
number listed in [the vessel charterer’s] voyage
instructions[.]” Id. at 441-43. Here, in contrast, Defendants
submit that the evidence is clear that the fax to TD Bank USA,
N.A. was not sent to any entity that had any relationship with
Plaintiff’s credit card account; nor was it the method specified
in any instructions provided by Defendants to Plaintiff on how
to communicate with Defendants.
Defendants state: “Plaintiff’s theory is that a credit card
holder could fax any phone number even remotely associated with
any subsidiary or branch of a major national bank or retailer
and that such an action would constitute effective revocation,
even where the actual entities named as Defendants never
received or had reason to know of these attempted revocations.”
[Docket Item 62 at 13.] While the Court does not understand
Plaintiff to go quite that far in her argument, the Court
nonetheless finds that Plaintiff has not raised a genuine
18

dispute of material fact that her method of revocation was,
under the circumstances, a reasonable one.
For those reasons, the Court finds that Plaintiff has not
put forth sufficient evidence to allow a reasonable finder of
fact to conclude that she used a reasonable method to
communicate to Defendants, on April 10, 2015, revocation of her
consent to be called. Given that, her conceded prior express
consent was still in effect, and Plaintiff cannot prevail on her
claim that the four calls from April 11, 2015 to April 15, 2015,
constituted violations of the TCPA. Accordingly, the Court will
grant summary judgment to Defendants as to the TCPA claim.
B. RFDCPA
Defendants argue that they are entitled to summary judgment
on Plaintiff’s claims under the RFDCPA and Cal. Civ. Code
§ 1788.17, which incorporates failure to comply with provisions
of the Federal Debt Collection Practices Act (“FDCPA”), Sections
1692b through j, which also relate to “harassment or abuse of a
person in connection with collection of a debt” because “the
undisputed call logs show that no harassment occurred” as a
matter of law. [Docket Item 55 at 26-27.] Plaintiff argues that
the undisputed call logs show that Defendants called Plaintiff
165 times over an eight-month period, which a reasonable jury
could find to constitute harassment within the meaning of the
RFDCPA, and that courts have denied summary judgment in cases
19

with patterns of calls that were lower in amount and frequency.
[Docket Item 57 at 19-21.]
The RFDCPA prohibits harassing conduct related to debt
collection, including “causing a telephone to ring repeatedly or
continuously to annoy the person called” and “communicating with
such frequency as to be unreasonable and to constitute
harassment under the circumstances.” Cal. Civ. Code
§§ 1788.11(d) & (e). It also prohibits parties from “engaging in
conduct, the natural consequence of which is to harass or abuse
a person in connection with the collection of a debt.” Cal. Civ.
Code § 1788.17 (referencing 15 U.S.C. § 1692d).
“The determination of whether a debt collection agency’s
telephone calls amount to ‘actionable harassment or annoyance
turns not only on the volume of calls made, but also on the
pattern of calls.’” Saltzman v. I.C. Sys., Inc., No. 09-10096,
2009 WL 3190359, at *7 (E.D. Mich. Sept. 30, 2009) (quoting
Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F. Supp. 2d 492,
505 (D.Md. 2004)).
None of the statutory provisions at issue here expressly
mandate that such conduct must occur in the absence of the
called person’s consent, as other provisions of 15 U.S.C.
§§ 1692 et seq. do. See 15 U.S.C. § 1692c. The Court has located
no definitive guidance whether a cause of action under the
RFDCPA can arise from cell phone calls received during a period
20

of prior consent, or whether such consent is not deemed to
permit a pattern of abusive calls in any event. In at least one
case of which the Court is aware, a reviewing court has found
both (1) that a consumer consented to receive seventy-three
calls but not the final twenty-six calls from a creditor, and
(2) that there was nevertheless a genuine dispute of material
fact as to whether the overall volume and pattern of all ninetynine calls (again, most of which were made with the consumer’s
consent) violated § 1788.11 of the RFDCPA. Haysbert v. Navient
Solutions, Inc., No. CV 15-4144 PSG (Ex), 2016 WL 890297, at *9*10, *13 (C.D. Cal. Mar. 8, 2016). While a consumer’s consent
may constitute evidence that the conduct of the caller was not
unreasonable or did not constitute harassment under the
circumstances and therefore did not violate the RFDCPA, the
Court is inclined to treat the effect of such consent on the
claim that the conduct was harassing as a question of fact
rather than law. See also Chisholm v. AFNI, Inc., No. 15-3625,
2016 WL 6901358, at *3-*6 (D.N.J. Nov. 22, 2016) (granting
summary judgment to defendant on FDCPA claim under 15 U.S.C. §
1692d based on volume and pattern of calls and separately
granting summary judgment to defendant on TCPA claim because
consumer consented to receiving calls).

21

The Court has reviewed relevant case law, and notes the
following holdings (and, where relevant, their attendant
procedural postures).
In Arteaga v. Asset Acceptance, LLC, the court found that
the plaintiff “fail[ed] to raise a genuine issue of material
fact” as to whether the defendant’s conduct was harassing where
the plaintiff presented “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.” 733 F. Supp. 2d 1218, 1229 (E.D. Cal. 2010). The only
circumstance present in this case, the Court finds, that was not
present in Arteaga was that, on several occasions, Defendants
called Plaintiff multiple times in one day. (As described supra,
the Court finds that Plaintiff has not raised a genuine issue of
material fact that Defendants called her after she effectively
communicated revocation of her consent to be called by them.)2

2

In Reddin v. Rash Curtis & Assocs., the court addressed the
issue of whether a call placed after a consumer did request the
caller cease calling her could raise a genuine dispute of
material fact as to whether the calls were harassing: “Even
pretending that a reasonable jury could find that two telephone
calls are sufficiently repetitive and continuous so as to annoy,
abuse, or harass a person, the undisputed evidence is that
defendant removed plaintiff’s number from its file after she
requested it to cease calling her and the second call was
inadvertently placed before the automated dialer system was
updated that night. Based on this evidence, a reasonable jury
could not find that defendant placed the second phone call ‘with
22

In Akalwadi, the court found that, in a situation where the
defendant allegedly made between 26 and 28 calls to the
plaintiff in a two-month period, although “none of the calls
were made either excessively early in the morning or late in the
evening[,]” the record reflected “periods in which telephone
calls were made on a daily basis and three telephone calls being
made within five hours on the same day,” the “reasonableness of
this volume of calls and their pattern is a question of fact for
the jury[,]” and denied summary judgment. 336 F. Supp. 2d at
506.
Citing Akalwadi, the court in Green v. Creditor Iustus
Remedium, LLP found that a complaint plausibly stated a claim
and could survive a motion to dismiss where the plaintiffs
alleged that the defendant called the plaintiffs “on a near
daily basis for approximately two months, including some calls
[to one of the plaintiffs] while she was working.” No. 1:13-cv01414, 2013 WL 6000967, at *3 (E.D. Cal. Nov. 12, 2013).
In Joseph v. J.J. Mac Intyre Cos., LLC, the court ruled
that “genuine issues of material fact remain for trial” where,

intent to annoy, abuse, or harass,’ 15 U.S.C. § 1692d(5). . . .
Because the court finds that defendant is entitled to summary
judgment as a matter of law on plaintiff’s FDCPA claim, the
court must also grant defendant’s motion for summary judgment on
her RFDCPA claim.” No. 2:15-cv-01305, 2016 WL 3743148, at *3, *5
(E.D. Cal. July 13, 2016) (emphasis added).
23

making every inference in favor of the plaintiff, the court
found that “roughly 75 calls made to Ms. Joseph’s residence
within the statutory period” “may be deemed to comprise part of
the pattern of harassing calls allegedly received by
Plaintiff[,]” although the defendants argued that the calls were
meant for other residents of the plaintiff’s home. 281 F. Supp.
2d 1156, 1164-65 (N.D. Cal. 2003).
In Alborzian v. JPMorgan Chase Bank, N.A., the California
Court of Appeal, on evaluation of “whether the operative
complaint state[d] facts sufficient to state a cause of
action[,]” found that, although the complaint did “not allege
that defendants’ calls were ever answered,” but did “allege that
they were intentionally made ‘in a campaign of harassment,’” the
complaint was sufficient because the “making of frequent calls
itself can constitute actionable harassment under the Rosenthal
Act.” 235 Cal. App. 4th 29, 34, 38 (Ct. App. 2d Dist. 2015)
(citing Komarova v. Nat’l Credit Acceptance, Inc., 175 Cal. App.
4th 324, 345 (Ct. App. 1st Dist. 2009) (“[W]e do not interpret
the statute to require that a plaintiff answer harassing
collection calls before they can be actionable”)).
In Haysbert, the court ruled on cross-motions for summary
judgment as to the plaintiff’s claim under the RFDCPA. 2016 WL
890297, at *13. The plaintiff claimed that he was entitled to
summary judgment “because Defendant called him 2-5 times a day”;
24

the defendant claimed it was entitled to summary judgment
“because plaintiff ‘has presented absolutely no evidence the
calls at issue rose to the level of harassment within the
meaning of the’ RFDCPA.” Id. The court considered “the volume
and pattern of calls made” to the plaintiff and noted that
“courts have been inconsistent in applying the standards” of
whether “a particularly volume or pattern leads to liability[.]
Id. The court ultimately ruled that there was, “at a minimum, .
. . a triable issue of fact as to whether Defendant’s conduct
was harassing” where “Defendant called Plaintiff ninety-nine
times over a one-and-a-half year period, and Plaintiff presents
evidence that he frequently received between two and five calls
a day. . . . [which] caused interruptions in his day and . . .
he answered at least some of these calls.” Id.
In contrast, the court in Saltzman found that there was no
genuine issue of material fact for trial where: the defendant
“only placed calls to Plaintiff’s residence”; the plaintiff
alleged that she asked the defendant to stop calling her but
“did not send Defendant a cease and desist letter” or “dispute
the amount owed”; the plaintiff did not answer “the vast
majority of Defendant’s telephone calls” and “did not recall
Defendant leaving any voice messages for her.” 2009 WL 3190359,
at *7. The court found instructive the holding of Udell v.
Kansas Counselors, Inc., 313 F. Supp. 2d 1135, 1143-44 (D. Kan.
25

2004), which found that “a debt collector does not necessarily
engage in harassment by placing one or two unanswered calls a
day in an unsuccessful effort to reach the debtor, if this
effort is unaccompanied by any oppressive conduct such as
threatening messages.” Saltzman, at *7 (quoting Millsap v. CCB
Credit Servs., Inc., No. 07-11915, 2008 WL 8511691, at *7 (E.D.
Mich. Sept. 30, 2008)). The Saltzman court stated that this
pattern of calls
suggests a “difficulty of reaching Plaintiff, rather
than an intent to harass.” . . .
Plaintiff has not pointed to any evidence in the
record regarding the amount, frequency, pattern, or
content of Defendant’s calls that would suggest
anything other than a legitimate, albeit persistent,
effort to reach her. As the FDCPA does not prohibit
such legitimate attempts to contact a debtor, and due
to Plaintiff’s failure to produce evidence
demonstrating a genuine issue of material fact,
Defendant is entitled to summary judgment in its favor
on this claim.
2009 WL 3190359, at *7 (quoting Millsap, 2008 WL 8511691, at
*7).
Similarly, in Shand-Pistilli v. Prof. Acct. Servs., Inc.,
the court considered a claim that the defendant called plaintiff
“only ten times over seventy-three days. Defendant never called
plaintiff more than once on the same day and, indeed, only once
called plaintiff on consecutive days. Most of the phone calls
went unanswered because plaintiff was not at home at the time of
the call. . . . [T]he fact that defendant continued to call
26

plaintiff after she stated . . . that she was ‘not interested in
these solicitation calls’ and that she considered such calls to
be harassment . . . is also not sufficient to raise a genuine
issue of material fact with respect to defendant’s intent. . . .
In light of the polite tone of the phone calls and their
relative infrequency I find that defendant’s phone calls to
plaintiff were legitimate attempts to reach her.” No. 10-01808,
2011 WL 2415142, at *5-*6 (E.D.Pa. June 16, 2011).
After careful consideration, the Court is persuaded that
the relevant case law supports a finding that Plaintiff, in this
case, has raised a genuine dispute of material fact as to
whether the volume and pattern of calls in this case could
constitute actionable harassment under the RFDCPA. Courts have
found a genuine issue of material fact in a case where the
plaintiff received ninety-nine calls over a one-and-a-half year
period, frequently received between two and five calls a day,
and answered at least some of those calls. Haysbert, 2016 WL
890297, at *13. The volume of calls here is greater (165 calls
over an eight-month period) and the pattern is similar, with
Defendants here calling multiple times per day on several
occasions (21 multi-call days of two or three calls each day)-an allegation which was not present in cases where courts
granted summary judgment. See, e.g., Shand-Pistilli, 2011 WL
2415142, at *5; Arteaga, 733 F. Supp. 2d at 1229.
27

The Court will therefore follow the approach of the courts
in Green and Akalwadi and find that, under these circumstances,
the “reasonableness of this volume of calls and their pattern is
a question of fact for the jury[,]” Green, 2013 WL 6000967, at
*3 (quoting Akalwadi, 336 F. Supp. 2d at 506), because the
evidence presented could “provide an adequate basis for the
finder of fact to find a violation” of the RFDCPA, Joseph, 281
F. Supp. 2d at 1165. The existence of the recipient’s prior
consent to receive calls regarding her account is a factor for
consideration in evaluating the reasonableness of the pattern of
calls under the RFDCPA. For that reason, the Court will deny
Defendants’ motion for summary judgment as to Plaintiff’s RFDCPA
claim.
C. California’s Unfair Competition Law
The Court previously dismissed without prejudice
Plaintiff’s claim under the UCL because, without entitlement to
one of the forms of equitable relief for which the UCL provides,
she lacked standing. [Docket Item 60 at 18-25.] Defendants also
moved to dismiss Plaintiff’s UCL claim on the grounds that she
lacked standing because she did not adequately allege that she
lost money or property and suffered an injury in fact, as the
UCL requires under Cal. Bus. & Prof. Code § 17204. The Court
found at that time, however, that Plaintiff had adequately
alleged that she had lost money or property. [Id. at 14-18.]
28

In their Motion for Summary Judgment, Defendants move for
summary judgment as to the UCL claim on the grounds that
Plaintiff has failed to bring forth evidence to show that she
suffered an economic injury caused by Defendants. [Docket Item
55 at 31-34.]
In her Response, filed before the Court’s opinion and order
dismissing without prejudice her UCL claim, Plaintiff did not
address Defendants’ arguments in favor of granting summary
judgment to Defendants on that claim and conceded that summary
judgment was appropriate. [Docket Item 57 at 13 n.1.]
Furthermore, the Court agrees that, for the reasons
described by Defendants and apparently conceded by Plaintiff,
Plaintiff has not brought forth evidence sufficient to create a
genuine dispute of material fact as to the allegation that she
suffered an economic injury caused by Defendants. No reasonable
finder of fact could conclude, based on the evidentiary record
before the Court, that Plaintiff in fact suffered such an
injury. Accordingly, the Court finds that she lacks standing
under the UCL and will grant summary judgment on that claim to
Defendants. To the extent that the UCL claim was previously
dismissed without prejudice [Docket Item 60 at 25], the Court
will now modify that ruling and dismiss the UCL claim with
prejudice.
D. Class Allegations
29

Plaintiff seeks certification of the following class under
Rule 23(b)(3), Fed. R. Civ. P.:
Every individual in the United States who: (1)
received a call on his or her cellular telephone; (2)
placed by or on behalf of Defendants; (3) relating to
a Target credit card; (4) using a dialer; and (5)
where Defendants did not have prior express consent to
place such a call at the time it was placed.
Amended Complaint ¶ 39. Defendants seek to strike the class
allegation on grounds of lack of ascertainability. The Third
Circuit has held in Marcus v. BMW of N.A. LLC, 687 F.3d 583, 593
(3d Cir. 2012): “If class members are impossible to identify
without extensive and individualized fact-finding or ‘minitrials,’ then a class action is inappropriate.” Similarly, a
noted treatise has observed that “[a] class definition is
inadequate if a court must make a determination of the
individual claims to determine whether a particular person is a
member of the class.” 5 James W. Moore, Moore’s Federal Practice
¶ 23.21[3][c] (3d ed. 2007).
Further, Defendants object to this class because Plaintiff
Martinez herself would not be a member. She consented to receive
the vast majority of these calls, including all calls made on
multi-call days. It is tautological that a class representative
must be a class member to satisfy Rule 23 requirements including
adequacy, typicality and commonality. (See Def. Rep. Br. at 1315.)

30

Defendants also move to strike the class allegations from
Plaintiff’s Amended Complaint because she “impermissibly
attempts to create a ‘fail-safe’ class where the question of
‘whether a person qualifies as a member depends on whether the
person has a valid claim.’” [Docket Item 55 at 37, quoting
Zarichny v. Complete Payment Recovery Servs., Inc., 80 F. Supp.
3d 610, 623 (E.D.Pa. 2015).]
In response, Plaintiff claims that the motion to strike is
premature, because Plaintiff “has not had the opportunity to
take any discovery on class certification issues” and Defendant
does not argue “that ‘no amount of discovery or time will allow
for plaintiff[] to resolve deficiencies in [the] class
definition[].’ McPeak [v. S-L Distribution Co., No. CIV 12-348,]
2014 WL 4388562, at *4 [(D.N.J. Sept. 5, 2014).]” [Docket Item
57 at 23 (emphasis in original).] Plaintiff states that she
“will be able to obtain through discovery information bearing on
the common characteristics of potential class members who did
not consent to receive calls from Defendants.” [Id.] Plaintiff
urges that, should the Court strike her class allegations, she
be given leave to amend “to allege, if she can, a proposed class
that is not fail-safe.” [Id. at 24, citing Dixon, 2016 WL
3456680, at *5.]
“[A]n essential prerequisite of a Rule 23 action is that
there be a class, and courts have generally articulated this
31

essential prerequisite as the implied requirement of
ascertainability--that the members of the class are identifiable
at the moment of certification[;] . . . [i]f class members are
impossible to identify without extensive and individualized
fact-finding or ‘mini-trials,’ then a class action is
inappropriate.” Zarichny, 80 F. Supp. 3d at 625.
As Defendants state: “By defining the class as individuals
called without their prior express consent, Plaintiff seeks to
create a class consisting only of individuals to whom defendants
are necessarily liable under the TCPA. This is a ‘heads, I win,
tails you lose’ proposition: ‘either the class members win or,
if the defense prevails, no class exists, and the putative class
members, unbound by the judgment, are free to pursue individual
claims.’ Zarichny, 80 F. Supp. 3d at 624.” [Docket Item 55 at
39.] Moreover, as Defendants demonstrate, Plaintiff Martinez
would not be a member of this class because she gave express
consent to autodialed calls to her cell phone concerning her
Target credit card.
Courts have previously rejected the same proposed class
because identifying the class requires “the sort of extensive
fact-finding that class actions should avoid” and because “any
other putative class recipient would be free to litigate the
same claim” against the defendant should the defendant prevail.
Zarichny, 80 F. Supp. 3d at 625-26. See also Dixon, 2016 WL
32

3456680, at *4-*5 (in TCPA case, proposed class was fail-safe
class where plaintiff proposed proceeding on behalf of people
who had not previously consented to receiving autodialed calls
on their cell phones); Olney v. Job.com, Inc., No. 1:12-CV01724, 2013 WL 5476813 at *11 (finding that proposed class based
on people who had not previously consented was improper failsafe class in TCPA case).
The Court agrees with Defendants that Plaintiff’s proposed
class is a fail-safe class. No amount of additional class
discovery will alter that conclusion: her proposed class both is
defined in terms of Defendants’ liability to the proposed class
members, and would require extensive fact-finding (as
Plaintiff’s own case has done) to determine whether the putative
class members failed to provide express prior consent to be
called. Her class allegations are stricken pursuant to Fed. R.
Civ. P. 23(d)(1)(D).
Because the Court has granted summary judgment to
Defendants on Plaintiff’s TCPA claims, the Court will not grant
Plaintiff leave to amend the class allegations with regard to
claims under the TCPA, because Plaintiff will not fall into the
revised class definition. See Olney, 2013 WL 5476813, at *11*12.

33

Further, because Plaintiff’s only remaining claim survives
under California’s RFDCPA, any class definition would be limited
to residents of California3 who received such calls.
Finally, as noted, Plaintiff’s membership in the class as
presently defined is a nullity. With all this constraints, it is
doubtful but not impossible that Plaintiff could serve as class
representative of a very different class. Any such effort to
revive this class must be made by motion to amend before
expiration of the deadline for amended pleadings herein under
Rule 16(a)(3)(A), Fed R. Civ. P, and L. Civ. R. 16.1(b)(1)(A).
Accordingly, Defendants’ motion to strike Plaintiff’s class
allegations will be granted.
CONCLUSION
For the foregoing reasons, the Court will deny Defendants'
motion to for summary judgment as to Plaintiff’s claim under the
RFDCPA (Count II of Plaintiff’s First Amended Complaint) and
will grant Defendants’ motion for summary judgment as to
Plaintiff’s claims under the TCPA (Count I) and the UCL (Count

3

Of course, for a class of California residents applying
California law, one would question how New Jersey would be a
proper venue.
34

III). The Court will also grant Defendants’ motion to strike the
class allegations. The accompanying Order will be entered.

June 30, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

35