Griffiths v. Sentry Credit, Inc.
Filing
26
Opinion & Order: Defendant Sentry Credit's Motion for Summary Judgment 17 is granted and defendant's motion to strike plaintiff's allegations is denied as moot. This case is dismissed and all pending motions are denied as moot. Signed on 8/11/11 by Chief Judge Ann L. Aiken. (ljb)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Gina Griff
hs,
Civil No. 10 6338-AA
OPINION AND ORDER
Plaintiff,
vs.
Sentry
t,
Inc.,
Defendant.
Joshua
gsted
Trigsted Law Group, P.C.
5200 SW Meadows Rd., Ste. 150
Lake Oswego, Oregon 97035
Attorney for plaintiff
Kirnberlee Walker Olsen
Luke, Casteel, & Olsen, PSC
3400 188th St. SW, Ste. 484
Lynnwood, Washington 98037
Jeffery I. Hasson, Esq.
Davenport & Hasson, LLP
12707 NE Halsey Street
Portland, Oregon 97230
Att
for defendant
AIKEN, Chief Judge:
Plaintiff,
Gina
Griffiths,
PAGE 1 - OPINION AND ORDER
asserts
that
Defendant,
Sentry
Credit,
Inc.
("Sentry"),
violated
the
Fair
Debt
Collection
Practices Act ("FDCPA"), 15 U.S.C. § 1692d(5), by placing telephone
calls to plaintiff with the intent to harass, annoy, or abuse her.
For the reasons set forth
Defendant moves for summary judgment.
below,
fendant's summary judgment motion is granted.
BACKGROUND
This action arises from two telephone conversations between
the
s and ten to twelve unanswered telephone calls
defendant to plaintiff's residence.
defined by 15 U.S.C. § 16
col
"
as
defined
Plaintiff is a "consumer" as
a(6) of the FDCPA.
in
15
by
U.S.C.
§
Defendant is a "debt
1692a(6)
and
contacts
individuals using the mail or telephone to collect unpaid debts.
Compl.
~
2.
On August 4, 2010, defendant was assigned plaintiff's
debt from Household Beneficial Finance in the amount of $8,033.55.
Olsen Decl. Ex. 2 at 5.
On August 5, 2010, defendant's
a call to plaintiff's home.
CompI.
oyee, R.J. McBride, placed
~
10.
The following is the
transcript of the phone call:
Mr. McBride: "
Credit.
I'm calling from Hal
It is in re
from Sentry
to a Household Beneficial
matter which was assigned to us
sterday and there's a
lance of $8,033.55 and this call is being recorded
and/or monitored for
at
ity assurance.
This is an
to collect a debt by a debt collector and any
information obtained will
PAGE 2 - OPINION AND ORDER
for that purpose.
And,
Gina,
I would most certainly like to help you get the
matter resolved here, today, if at all possible.
looking at the file here.
I'm
It looks like this account
was opened in May of 2005 and it looks like something
happened here towards the beginning of 2009 when the
payments ceas
na
What happened Gina?"
ffiths: "Actually, that account is passed its
statute so I'm not able to discuss it with you."
Mr. McBride: "When you say statute, you mean
na
ffiths:
"
"Yes. So I'm sorry. I'm not able to
discuss help you with that."
Mr. McBride: "Oh."
Gina
ffiths:
"Thank you."
Mr. McBride: "You bet.
Thank you."
Olsen Decl. Ex. 1 at 2 3.
Defendant reviewed plaintiff's account and dete
ned that
the statute of limitations period for that account expires in
November 2013.
Joint Pret
1 Order 3(e), July 13, 2011.
Between August 6, and September 1, 2010, defendant called
intiff's residence ten to twelve more times.
Order 3(f).
~
14.
Joint Pretrial
Plaintiff did not answer any of these calls.
During this time,
fendant did not leave any messages or
attempt to contact plaintiff using any other means.
Ex. 2 at 6-7.
PAGE 3
OPINION AND ORDER
Compl.
Olsen Decl.
On September 1, 2010, plaintiff placed a call to defendant
and asked the representative who answered whether the number she
was calling
longed to defendant.
Olsen Decl. Ex. 1 at 5.
After the representative confirmed that
number
longed to
defendant, plaintiff thanked him and hung up without identifying
herself.
Id.
STANDARDS
judgment
Summary
depositions,
is
appropriate
"if
the
pleadings,
answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any mat
to
a
judgment
as
al fact and that t
a
matter
of
moving party is entitled
law."
R.
Civ.
P.
56(a).
Substantive law on an issue determines the materiality of a fact.
T. W.
Electrical Service,
Inc.
v.
Pacific Electrical Contractors
Assoc., 809 F.2d 626, 630 (9 th Cir. 1987).
such
that
a
reasonable
nonmoving party
jury
could
rmines the authent
Whether the evidence is
return
a
verdict
i ty of a
spute.
v. Liberty Lobby, Inc., 477 U.S. 242, 248
for
the
Anderson
(1986).
The moving party has the burden of establishing the absence of
a genuine issue of material fact.
U.S. 317, 323 (1986).
Celotex Corp. v. Catrett,
477
If the moving party shows the absence of a
genuine issue of material fact, the nonmoving party must go beyond
the pleadings and identify facts which show a genuine issue for
trial.
at 324.
Special rules of construction apply when evaluating summary
PAGE 4
OPINION AND ORDER
judgment motions:
(1) all reasonable doubts as to the existence of
genuine issues of mat
al
moving
all
party;
and
(2)
fact
in
rences
resol ved against the
should
to
be
drawn
from
the
underlying facts must be viewed in the light most favorable to the
nonmoving party.
T.W. Electrical, 809 F.2d at 630.
DISCUSSION
Plaintiff alleges that
§
fendant violated 15 U.S.C.
1692d(5) by placing ten to twelve calls to her residence between
August 6, 2010, and September 1, 2010.
prohibits
a
debt
collector
from
Section 1692d of the FDCPA
"causing
a
telephone
to
ring ... repeatedly or continuously with intent to annoy, abuse, or
harass any person at the called number."
Defendant
has
provided
between plaintiff
Michael
Mathis,
establish that
the
transcripts
and defendant,
an
employee
for
as
well
15 U.S.C.
of
both
as
defendant.
§
16
d(5).
conversations
the
testimony
The
of
transcripts
fendant was attempting to contact pIa
iff in
order to inform her of the correct statute of limitations period
and not to harass f
abuse,
or annoy her.
Therefore,
defendant
satisfied its burden by showing an absence of a genuine issue of
mater
I fact.
Plaintiff
provided
no
evidence
whatsoever
disputing
fendant's assertions or setting out facts that show defendant's
debt collection act
statute.
Therefore,
ities constitute harassment or abuse under the
plaintiff has failed to identify specif
facts to support her claim.
PAGE 5 - OPINION AND ORDER
Instead, plaintiff requests that the Court consider only the
call volume to determine that a genuine issue of material fact
exists for trial.
Although plaintiff correctly identifies some
disagreement among district courts as to the specific volume and
pattern of calls that allows a plaintiff to raise a triable issue
of fact regarding the defendant's intent to annoy or harass,
plaintiff fails to note that district courts generally require a
high call volume coupled with egregious conduct in order for the
court to find harassment.
Inc., 505 F. Supp. 864
See Bingham v. Collection Bureau,
(D. N.D. 1981) (fourteen calls in a one
month period is not harassment but when calls were coupled with
the immediate recalling of a debtor a
er the debtor hung up, the
calls were harassment); Chiverton v. Fed. Fin. Group, Inc., 399
F. Supp. 2d 96, 101 (D. Conn. 2005) (using abusive language is a
violation of FDCPA);
Kuhn v. Account Control Technology, Inc.,
865 F. Supp. 1443, 1453 (D.Nev. 1994)
(six phone calls in twenty-
four minutes, including immediately recalling the debtor after
she hung up on the collector, was harassment).
However, merely
placing calls, without any other abusive conduct, is not
harassment.
See Shand-Pistilli v. Prof'l Account Servs., 2011
U.S. Dist. LEXIS 64446 (E.D. Pa. June 16, 2011)
(ten calls over
seventy-three days was not sufficient by itself to raise a
genuine issue of material
ct as to defendant's intent
making
the phone calls); Waite v. Fin. Recovery Servs., 2010 U.S. Dist.
LEXIS 133438 (M.D. Fla. Dec. 16, 2010)
PAGE 6 - OPINION AND ORDER
(placing four calls within
a single day without other oppressive conduct did not constitute
harassment under § 1692d(5)); Tucker v. CBE Group, Inc., 710 F.
Supp. 2d 1301, 1305-1306 (M.D. Fla. 2010)
seven calls
a s
(making no more than
e day and not calling back after leaving a
message demonstrated that defendant made calls to reach
intiff
rather than to harass her).
Although defendant placed between ten and twelve calls to
plaintiff's residence during the
riod of August 6, 2010, to
September 1, 2010, defendant did nothing else to indicate that
intended to annoy, abuse, or harass plaintiff.
The Court finds
no evidence of an unacceptable volume or pattern of calls and the
record is lacking any indication that the defendant engaged in
the type of egregious conduct that would raise an issue of
triable fact.
Plaintiff offered no evidence to show that
defendant called at an unreasonable hour or that more than one
phone call was made per day.
intiff also alleges that she suffered emotional
stress
as a result of defendant's phone calls; however, her opinion as
to whether the
Is were harassing is not evidence of
defendant's intent.
Instead, the evidence suggests that
defendant intended to contact plaintiff to inform her of her
mistake, rather than to harass her.
shows that plaintiff
In
tion, the evidence
led defendant on September 1, 2010, after
fendant had placed the ten to twelve telephone calls.
During
this call, plaintiff inquired whether she was speaking with
PAGE 7 - OPINION AND ORDER
defendant.
This exchange demonstrates
who had attempt
plaintiff was unsure
to contact her previously.
inferences drawn from the underlying
light most
Even when all
s are viewed in the
e to plaintiff, no reasonable juror could find
for plaintiff.
Therefore, defendant's motion for summary
judgment is granted.
CONCLUSION
Defendant Sentry Credit's summary judgment motion (doc. 17)
is granted and
fendant's motion to st
allegations is
as moot.
plaintiff's
This case is dismissed and all
pending motions are denied as moot.
IT IS SO ORDERED.
Dated
s
/1 ---Ih
day
of
Ann Aiken
United States
st ct Judge
PAGE 8 - OPINION AND ORDER
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