Young v. DISH Network, LLC et al

Filing 148

OPINION AND ORDER by Judge John E Dowdell ; finding as moot 80 Motion in Limine; granting in part 81 Motion for Summary Judgment (Re: State Court Petition/Complaint ) (SAS, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
RICHARD YOUNG,
Plaintiff,
vs.
DISH NETWORK, LLC, d/b/a/ DISH
NETWORK, a foreign limited liability
Company; JOHN DOE # 1, an Oklahoma
entity; and JOHN DOE #2, an individual
Oklahoma Resident engaged in installing
Dish Network Equipment

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Case No. 13-CV-114-JED-PJC

OPINION AND ORDER
Before the Court is defendant DISH Network, LLC’s Motion for Summary Judgment
(Doc. 81).

The plaintiff alleges a range of frustrating sales and debt collection tactics

purportedly committed by the defendant. Because the plaintiff does not identify a cognizable
injury for most of his claims, however, the defendant’s motion is granted in part.
BACKGROUND
For roughly 20 years the plaintiff received satellite television service from the defendant.1
In May of 2011, the defendant offered to upgrade the plaintiff’s programming package to include
channels that the plaintiff did not want. The plaintiff declined the offer, repeatedly. In the same
call, the defendant tried to sell the plaintiff on new receiving equipment, which the defendant
claimed would perform better than the equipment the plaintiff currently used.

Again, the

plaintiff declined. Finally, the defendant told the plaintiff that he would need to replace his

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The following account presents the facts in the light most favorable to the plaintiff.

receivers soon in any event, as the defendant was phasing them out. The defendant did not
reveal to the plaintiff that this process would occur over several years.2
Believing his receivers would soon cease to function, the plaintiff agreed to allow the
defendant to replace them. The defendant told the plaintiff this replacement would cost him
between $3.00 and $4.00. After the defendant installed the new receivers, the plaintiff signed an
electronic device, purportedly to acknowledge the installation. Although the plaintiff did not
sign a contract, his name appeared on a “Dish’n It up Agreement.” Under this contract, the
plaintiff ostensibly agreed to a monthly bill increase of around $20.00.
When the first bill reflecting this increase arrived, the plaintiff refused to pay as he did
not recall agreeing to the new charges. The plaintiff attempted to cancel his service and failed.
He filed a complaint with the Better Business Bureau and the Oklahoma Attorney General. A
dispute resolution specialist then called the plaintiff on the defendant’s behalf, but essentially
directed the plaintiff to pay his bill. The plaintiff did not and, the dispute unresolved, the
defendant eventually terminated the plaintiff’s service due to his failure to pay.
The defendant sent the plaintiff pre-paid boxes and labels to enable the plaintiff to return
the defendant’s receivers by mail.

The plaintiff, however, with new reasons to doubt the

defendant’s probity, worried that the defendant would not acknowledge receipt of the receivers if
returned by mail. Accordingly, he insisted that the defendant send someone to his home to
retrieve them. The defendant was happy to oblige, at a cost to the plaintiff of $95.00. The
plaintiff declined, and the defendant refused to waive the fee.

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As recently as March 2015 the plaintiff’s old receivers would still have received the
defendant’s emissions, the defendant’s representation regarding their imminent obsolescence
notwithstanding.
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As a result, the receivers stayed in the plaintiff’s possession. The defendant eventually
charged the plaintiff for the receivers and called the plaintiff’s home daily and incessantly
attempting to recover their cost. The plaintiff wrote to the defendant demanding that it stop
harassing him. When its own tactics proved ineffective, the defendant sent the amount owed it to
a debt collection company. Ultimately, the plaintiff disconnected his phone to avoid the debt
collection company’s harassment.
The plaintiff sued the defendant in January of 2013. The defendant removed the case to
federal court and countersued for the cost of the receivers. Counsel for the plaintiff returned the
receivers to the defendant, and the defendant voluntarily dismissed its countersuit.
STANDARDS
Summary judgment is appropriate “if the movant shows 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). In considering a summary judgment motion, courts
determine “whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477
at 251-52. The evidence of the nonmovant is to be taken as true, and all justifiable inferences are
to be drawn in the nonmovant’s favor. Anderson, 477 U.S. at 255; see also Ribeau v. Katt, 681
F.3d 1190, 1194 (10th Cir. 2012). “Credibility determinations, the weighing of evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment. . . .” Anderson, 477 U.S. at 255. “[A]t the summary
judgment stage the judge’s function is not himself to weigh the evidence and determine the truth

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of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at
249.
“When the moving party has carried its burden under Rule 56[a], its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (citations
omitted). When the record, taken as a whole, “could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Id. (quotations omitted). “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 [trier of fact] could reasonably find for the plaintiff.” Anderson,
477 U.S. at 252. In its review, the Court construes the record in the light most favorable to the
party opposing summary judgment. Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).
DISCUSSION
The plaintiff asserts claims of actual fraud, constructive fraud, negligence, gross
negligence, statutory deceit, and violation of the Oklahoma Consumer Protection Act, all on the
basis that the defendant tricked him into replacing his satellite reception equipment and then
forged his signature on a two-year contract that raised the monthly cost of its service. In
addition, the plaintiff asserts a claim of invasion of privacy based on the tactics the defendant
allegedly employed in attempting to recover its reception equipment from the plaintiff.
I.

Fraud
The Supreme Court of Oklahoma has often called fraud a “generic term embracing the

multifarious means . . . human ingenuity can devise . . . [to] get advantage over another by false
suggestion or suppression of the truth.” See Croslin v. Enerlex, Inc., 308 P.3d 1041, 1045 (Okla.
2013) (compiling cases). The plaintiff seeks recovery under two different theories of fraud:

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actual fraud and constructive fraud.

Under Oklahoma law, actual fraud is a (1) material

misrepresentation, (2) knowingly or recklessly made (3) with the intent that it be relied on and
(4) which substantially affects another person. Id.; Silver v. Slusher, 770 P.2d 878, 881 n.8
(Okla. 1988) (citations omitted). An individual commits constructive fraud under Oklahoma law
by breaching a legal or equitable duty to the detriment of another. Croslin v. Enerlex, Inc., 308
P.3d 1041, 1045-46 (Okla. 2013) (compiling cases).
To make out a claim for either actual or constructive fraud, a plaintiff must have suffered
damages as a result of the defendant’s material misrepresentation.

See, e.g., Specialty

Beverages, L.L.C. v. Pabst Brewing Co., 537 F.3d 1165, 1181 (10th Cir. 2008) (applying
Oklahoma law); Faulkenberry v. Kansas City S. Ry. Co., 602 P.2d 203, 206 (Okla. 1979). To
establish this element, the plaintiff must show not only that he suffered an injury but that the
injury occurred as the result of his reliance on the defendant’s misrepresentation. See, e.g., State
ex rel. Sw. Bell Tel. Co. v. Brown, 519 P.2d 491, 495 (Okla. 1974). The plaintiff asserts that he
has been harmed because he gave up equipment that would still function today, has suffered
emotional and mental distress—“including anger”—which affected his ability to work and
concentrate, and has spent “considerable time . . . trying to resolve this dispute.” (Doc. 86 at 18,
14-15).
These are not cognizable injuries. The plaintiff gave up his satellite reception equipment
because the defendant planned to phase it out, although on a longer timeline than the plaintiff
understood. Id. at 4-5. In Oklahoma, a plaintiff can recover damages for mental distress only
where “produced by, connected with or the result of physical suffering or injury to the person
enduring the mental anguish.” Wilson v. Muckala, 303 F.3d 1207, 1213 (10th Cir. 2002)
(quoting Ellington v. Coca Cola Bottling Co. of Tulsa, 717 P.2d 109, 111 (Okla. 1986)). The

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plaintiff has not alleged any physical suffering connected to his anger and frustration. Finally,
the time the plaintiff has spent does not constitute an injury.

See, e.g., Salmon v. CRST

Expedited, Inc., No. 14-CV-0265-CVE-TLW, 2015 WL 1395237, at *8 (N.D. Okla. Mar. 25,
2015) (finding “aggravation and loss of time . . . not a cognizable claim under Oklahoma law.”).
Accordingly, the defendant’s summary judgment motion is granted as to the plaintiff’s
claims of actual and constructive fraud.
II.

Negligence, Gross Negligence, Statutory Deceit, and the Oklahoma Consumer
Protection Act
The plaintiff’s claims of negligence, gross negligence, and statutory deceit, and his claim

under the Oklahoma Consumer Protection Act, also require the plaintiff to have suffered some
injury. Lockhart v. Loosen, 943 P.2d 1074, 1079 (Okla. 1997) (negligence claim requires
injury); Trinity Baptist Church v. Bhd. Mut. Ins. Servs., LLC, 341 P.3d 75, 85 (Okla. 2014)
(quoting NMP Corp. v. Parametric Tech. Corp., 958 F. Supp. 1536, 1546 (N.D. Okla. 1997)
(“[G]ross negligence is the same as a negligence claim, differing only as to the degree.”); Lillard
v. Stockton, 267 F. Supp. 2d 1081, 1111 (N.D. Okla. 2003) (“The basic elements of common law
fraud and deceit are identical under Oklahoma law.”); Salmon, 2015 WL 1395237, at *6 (injury
required to establish violation of OCPA).
The plaintiff titles a two-page section of his response “Mr. Young Incurred Damages as a
Result of Dish’s Conduct.” (Doc. 86 at 24). Although the plaintiff cites a number of cases for
the proposition that parties are liable for the injuries they cause, tellingly he nowhere states what
injury he has suffered beyond “his emotional distress.” (Id.). The plaintiff most compellingly
cites Fuller v. Sight ‘N Sound Appliance Centers, Inc., 982 P.2d 528 (Okla. Civ. App. 1999).
“However, Fuller does not stand for the proposition that aggravation and loss of time is an
independent claim for relief under Oklahoma law, and it merely supports an argument that
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aggravation or loss of time could be compensable elements of damages under the OCPA.”
Salmon, 2015 WL 1395237, at *8.
Accordingly, the defendant’s summary judgment motion is granted as to these claims.
III.

Invasion of Privacy
Disputed issues of material fact that could support a finding in the plaintiff’s favor exist

with respect to the plaintiff’s invasion of privacy claim only.

Oklahoma recognizes the

common-law tort of invasion of privacy by intrusion upon a person’s seclusion. Gilmore v.
Enogex, Inc., 878 P.2d 360, 366 (Okla. 1994). To prevail on his claim, the plaintiff must show a
nonconsensual intrusion that a reasonable person would find highly offensive. Id.
The defendant quotes Humphrey v. U.S. Bank, N.A., No. 11-CV-272-GKF-PJC, 2012 WL
3686272, at *6 (N.D. Okla. Aug. 24, 2012), which itself quotes Restatement (Second) of Torts §
652B (1977), as follows: “It is only when the telephone calls are repeated with such persistence
and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial
burden to his existence, that his privacy is invaded.” “The undisputed facts show,” the defendant
continues, “that, in addition to sending letters, DISH made four unsuccessful attempts to contact
Plaintiff by phone in one day.” (Doc. 81 at 23). The plaintiff disputes these undisputed facts,
calling the calls “incessant.” (Doc. 86 at 13). The persistence and frequency of the calls, as well
as the burden they placed on the plaintiff’s existence, are material issues of fact for the jury to
resolve.
CONCLUSION
Without a doubt, the defendant’s actions, as alleged by the plaintiff, are aggravating. To
the extent that these allegations are true, he has every right to be frustrated. Other than the
purportedly incessant phone calls made to the defendant’s home, however, the defendant’s

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alleged actions have not caused the plaintiff the type of harm necessary to support a cause of
action.
IT IS THEREFORE ORDERED that defendant DISH Network, LLC’s Motion for
Summary Judgment (Doc. 81) is granted in part in accordance with this Opinion and Order.
IT IS FURTHER ORDERED that defendant DISH Network, LLC’s Fourth Motion in
Limine (Doc. 80) is rendered moot.
SO ORDERED this 30th day of October, 2015.

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