Foster v. National Recovery Agency
Filing
49
DECISION AND ORDER denying 47 Motion to Strike, but reopening discovery for the limited purpose of allowing Plaintiff to conduct further discovery, including depositions if necessary, to inquire about all relevant circumstances concerning or relat ed to NRA0196. Defendant shall bear the costs of such discovery. A scheduling order will issue shortly. Further, the parties cross-motions for summary judgment on the TCPA claim (Dkt. No. 28, 41) shall be terminated without prejudice to renew. SO ORDERED. Signed by Hon. H. Kenneth Schroeder Jr. on 3/31/2021. (HKG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HARRY FOSTER,
v.
Plaintiff,
NATIONAL RECOVERY AGENCY,
17-CV-6-LJV
Defendant.
DECISION AND ORDER
Plaintiff Harry Foster (“Plaintiff”) alleges that Defendant National Recovery
Agency (“Defendant” or “NRA”) violated the Telephone Consumer Protection Act (“TCPA”),
47 U.S.C. § 227, and the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692,
by calling his cell phone using an automated telephone dialing system and leaving
prerecorded messages in an attempt to collect a debt. Dkt. No. 1. This case was referred
to the undersigned by the Hon. Lawrence J. Vilardo, pursuant to 28 U.S.C. § 636(b)(1), for
all pretrial matters and to hear and report upon dispositive motions. Dkt. No. 29. Currently
before the Court are Plaintiff’s Motion to Strike the intake record from NRA’s client, Eastern
Niagara Radiology (“EN Radiology”), and the parties’ cross-motions for summary judgment
on Plaintiff’s TCPA claim only. Dkt. Nos. 28, 41, 47. For the following reasons, Plaintiff’s
Motion to Strike is denied, but Plaintiff shall be permitted to conduct further discovery
regarding how EN Radiology attained Plaintiff’s cell phone number. Defendant shall bear
the costs of such discovery including any necessary depositions. Because the parties
cross-motions for summary judgment cannot be resolved absent further discovery, they
are hereby terminated without prejudice to renew.
FACTUAL BACKGROUND
The following facts are taken from the Complaint, the parties’ Local Rule
56(a)(1) Statements and Counterstatements of Facts, the Affidavit of Harry Foster in
Support of Plaintiff’s Motion for Summary Judgment, and the Affirmation of Seth J.
Andrews in support of Plaintiff’s Motion to Strike. Dkt. Nos. 1, 28-1, 28-19, 51-13, 46-4,
47-1. On June 11, 2013, Plaintiff was involved in a motor vehicle accident and sought
treatment for his injuries at Eastern Niagara Hospital in Lockport, NY (“EN Hospital”). Dkt.
No. 28-1, ¶ 7. Plaintiff provided EN Hospital with his insurance number and address but
does not recall if he furnished his cell phone number, 716-418-3830, which was in his
fiancée’s name but used exclusively by Plaintiff. Dkt. No. 28-1, ¶¶ 4-5, 7. Sometime later
in 2014, Plaintiff’s treating physician, Dr. Denhasse, referred Plaintiff to EN Radiology to
have some imaging done. Dkt. No. 28-1, ¶ 8. Plaintiff does not recall providing his
insurance information to EN Radiology nor does he recall filling out any paperwork. Dkt.
No. 28-1, ¶ 9. However, Plaintiff did provide his insurance information to his treating
physician. Dkt. No. 38-1, ¶ 9.
Between February 6, 2015, and December 13, 2016, Defendant placed
approximately 73 calls to Plaintiff’s cellular phone to collect an outstanding debt owed to its
client, EN Radiology. Dkt. No. 28-19, ¶¶ 1-2. Plaintiff spoke to NRA representatives
numerous times and explained that his personal injury attorneys, Cellino and Barnes, told
him that insurance covered the costs of his treatment. Dkt. No. 28-1, ¶ 11, 12.
Nonetheless, Defendant continued to call Plaintiff to collect the debt. Dkt. No. 28-1, ¶ 12.
On those occasions when Plaintiff did not answer his phone, Defendant left an automated
message in his voice mail stating, “please call 1-800-360-4319.” Dkt. No. 28-1, ¶ 13.
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Defendant contends that it generally utilizes its Mercury Dialing System to call the phone
numbers of purported debtors stored in its account management software, Platinum. Dkt.
No. 28-19, ¶ 8; Dkt. No. 41-13, ¶ 8. On August 24, 2015, after learning that Plaintiff’s
name was not the name associated with AT&T’s account for the 716-418-3830 number,
Defendant began initiating calls to Plaintiff in “manual mode.” Dkt. No. 28-19, ¶¶ 9-10; Dkt.
No. 41-1, ¶¶ 9-10.
On April 14, 2015, Plaintiff told an NRA representative that he would “have
her arrested” if she kept calling him. Dkt. No. 41-13, ¶ 12. Plaintiff told another NRA
representative on May 12, 2015, that he would file a lawsuit against the company for
harassment. Dkt. No. 31-13, ¶ 13. Defendant continued to call Plaintiff on his cellular
phone through December 13, 2016. Dkt. No. 28-1, ¶ 17.
Plaintiff commenced this case on January 4, 2017, asserting violations of the
TCPA and FDCPA. Dkt. No. 1. On or about April 25, 2019, Plaintiff served discovery
demands on Defendant, including a request for production of documents. Dkt. No. 47-1,
¶ 4. Plaintiff specifically asked for any “documents or data that shows Plaintiff’s consent to
receive calls on his/her cellular phone.” Dkt. No. 47-1, p. 11. Defendant did not produce
any documents purporting to show that Plaintiff provided his cell phone number to
Defendant’s client, EN Radiology. Dkt. No. 47-1, ¶ 5. Defendant turned over what
appeared to be a typed intake form from EN Hospital, which identified Plaintiff’s cell phone
number as 716-418-3830. Dkt. No. 41-7, p. 3. However, it is undisputed that Defendant’s
client was EN Radiology and not EN Hospital. Dkt. No. 47-1, p. 5.
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On August 8, 2019, Defendant’s 30(b)(6) witness, Steven Kusic, testified that
he had an “electronic form” from EN Radiology similar to the EN Hospital intake form. Dkt.
No. 47-1, ¶ 6; Dkt. No. 47-3, p. 6. Plaintiff’s counsel asked that Defendant produce the
document. Dkt. No. 47-1, ¶ 6. After the deposition, counsel reiterated his request for any
outstanding discovery before the deadline the following day, August 9, 2019, but
Defendant did not produce any intake records from EN Radiology. Dkt. No. 47-1, ¶¶ 7, 8.
On October 28, 2019, Plaintiff filed a motion for summary judgment as to his TCPA claim,
arguing among other things, that Defendant did not have Plaintiff’s prior express consent
to call him on his cellular phone. Dkt. No. 28, pp. 4-6. Several months later, Defendant
opposed and cross-moved for summary judgment on the TCPA claim, producing for the
first time, a copy of an electronic intake form from EN Radiology, identifying Plaintiff’s
phone number as 716-418-3830. Dkt. No. 41-8, p. 2 (Bates Stamped NRA0196). Plaintiff
thereafter moved under Rule 37 of the Federal Rules of Civil Procedure to bar Defendant
from using the document in these proceedings or at trial based on its failure to disclose it
prior to the discovery deadline and Plaintiff’s Motion for Summary Judgment. Dkt. No. 47.
DISCUSSION AND ANALYSIS
“A district court may impose sanctions when ‘a party . . . fails to obey an
order to provide or permit discovery.’” Burns v. Imagine Films Entm’t, Inc., 164 F.R.D. 594,
598 (W.D.N.Y.1996) (quoting F.R.C.P. 37(b)). Rule 37 of the Federal Rules of Civil
Procedure, which dictates the discovery obligations of civil litigants, vests district courts
with “broad power” to impose sanctions on parties who fail to adhere to discovery
orders. Karpio v. Bernzomatic Corp., 2015 WL 1808605, at *4 (W.D.N.Y. Apr. 21, 2015)
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(citing Friends of Animals, Inc. v. United States Surgical Corp., 131 F.3d 332, 334 (2d
Cir.1997) (per curiam)).
“The rule mandates preclusion unless the violation was substantially justified
or harmless.” Peters v. Molloy Coll. of Rockville Ctr., 2010 WL 3170528, at *5 (E.D.N.Y.
Aug. 10, 2010). “Substantial justification means justification to a degree that could satisfy
a reasonable person that parties could differ as to whether the party was required to
comply with the disclosure request.” Coene v. 3M Co., 303 F.R.D. 32, 44 (W.D.N.Y. 2014)
(citation omitted). “‘Harmlessness’ in the context of Rule 37(c)(1) ‘means an absence of
prejudice to the defendant.’” Ferrari Club of Am., Inc. v. Bourdage, 2017 WL 1498080, at
*5 (W.D.N.Y. Apr. 25, 2017) (internal citations omitted).
Defendant provides no justification for failing to produce NRA0196, despite
numerous requests to do so as detailed above. And it cannot be said that failure to
produce NRA0196 is “harmless,” as the document bears on the critical issue of whether
Plaintiff consented to be contacted on his cell phone by EN Radiology. “Prior express
consent is an affirmative defense to liability under the TCPA.” Latner v. Mount Sinai
Health Sys., Inc., 879 F.3d 52, 54 (2d Cir. 2018). “[T]he context of the consent provided is
absolutely critical.” Baisden v. Credit Adjustments, Inc., 813 F.3d 338, 343 (6th Cir. 2016)
(holding that plaintiff, whose wife provided their cell phone numbers in paperwork she filled
out when he was admitted to the hospital, gave prior express consent to receive calls
relating to medical debt on those numbers). Without any specifics about the
circumstances under which Defendant obtained Plaintiff’s cell phone number, it is
impossible to determine whether Defendant violated the TCPA.
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This Court is troubled by Defendant’s unjustified failure to disclose NRA0196
during the discovery period, as it was clearly relevant and responsive. At the same time, it
recognizes that “preclusion is a harsh remedy that ‘should be imposed only in rare
situations.’” Peters, 2010 WL 3170528, at *5 (internal citations omitted). To alleviate any
prejudice to Plaintiff, discovery shall be reopened for the limited purpose of allowing
Plaintiff to conduct further discovery, including depositions if necessary, to inquire about all
relevant circumstances concerning or related to NRA0196. Defendant shall bear the costs
of such discovery. A scheduling order will issue shortly. Further, the parties’ crossmotions for summary judgment on the TCPA claim (Dkt. No. 28, 41) shall be terminated
without prejudice to renew.
SO ORDERED.
DATED:
Buffalo, New York
March 31, 2021
S/ H. Kenneth Schroeder, Jr.__
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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