Bien v. Stellar Recovery, Inc. et al
Filing
21
MEMORANDUM AND ORDER granting 11 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 9/21/15. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
ANDREA BIEN,
)
Plaintiff,
)
)
v.
)
C.A. No. 14-366 S
)
STELLAR RECOVERY, INC.;
)
J. DOE #1; and J. DOE #2,
)
Defendants.
)
______________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Plaintiff, Andrea Bien (“Bien”), has brought suit against
Defendant,
Stellar
Stellar
violated
(“FDCPA”).
Recovery,
the
Fair
Inc.
(“Stellar”),
alleging
that
Debt
Collection
Practices
Act
Now pending before this Court is Stellar’s motion
for summary judgment.
(ECF No. 11.)
For the reasons set forth
below, Stellar’s motion is GRANTED.
I.
Background 1
Bien’s grievance with Stellar began after her identity was
stolen sometime before June 2013.
(Pl.’s Resp. to Def.’s 1st
Set of Interrogs. ¶ 3, ECF No. 13-6.)
proceeded
identity.
1
to
fraudulently
open
several
The unknown perpetrator
accounts
using
Bien’s
(Def.’s Statement of Undisputed Facts (“Def.’s SUF”)
The Court reviews the record in the light most favorable
to Bien, the non-moving party, drawing all reasonable inferences
in her favor. See Mellen v. Trs. of Boston Univ., 504 F.3d 21,
24 (1st Cir. 2007).
¶ 1, ECF No. 13.)
When the debt that accrued on one of these
accounts went unpaid, Stellar was enlisted to collect the debt.
(Id. at ¶ 2.) 2
To this end, in January 2014, Stellar called Bien on two
separate occasions at her Rhode Island home.
(Pl.’s Statement
of Additional Undisputed Facts (“Pl.’s SUF”) ¶ 6, ECF No. 19-1.)
Although
Island,
Stellar
the
did
Rhode
not
have
offices
Island
area
code
of
or
employees
401
preceded
different numbers that Stellar used to contact Bien.
SUF ¶¶ 8, 11.) 3
in
Rhode
the
two
(Def.’s
Prior to placing the calls, Stellar contracted
with Livevox to provide its dialing services; pursuant to this
arrangement, the calls to Bien originated from Livevox’s data
center outside of Rhode Island.
(Def.’s SUF ¶ 5.)
Under its
contract with Livevox, Stellar owned the use of the two phone
numbers that were used by Livevox to dial Bien, and, if Bien
called
the
numbers
back,
she
would
have
reached
Stellar.
(Def.’s SUF ¶¶ 8–13.) 4
2
Both parties acknowledge that Bien did not incur the debt
at issue. (Def.’s Statement of Undisputed Facts (“Def.’s SUF”)
¶ 23, ECF No. 13.)
3
Stellar was, however, registered to do business in Rhode
Island as a foreign corporation. (Def.’s SUF ¶ 4.)
4
In fact, Bien did call the two 401-based numbers back and
was answered by a recorded message that indicated that she had
“reached Stellar Recovery.”
(Pl.’s Resp. to Def.’s 1st Set of
Interrogs. ¶ 10, ECF No,. 13-6.)
2
Bien
did
not
answer
either
of
Stellar’s
phone
calls
because, as she explained, she does not answer incoming calls
from
unknown
Def.’s
1st
parties
Set
of
or
telephone
Interrogs.
¶
numbers.
13.)
(Pl.’s
After
each
Resp.
call
to
went
unanswered, Stellar left a voicemail message indicating that the
purpose of the call was debt collection.
(Pl.’s SUF ¶ 9.)
Bien
listened to the voicemails, each of which identified Stellar by
name, and reviewed her telephone’s caller-ID log, which also
displayed Stellar’s name as the caller associated with the phone
numbers.
(See Def.’s SUF ¶¶ 17, 21; Pl.’s Resp. to Def.’s 1st
Set of Interrogs. ¶ 10.)
Aggrieved by Stellar’s phone calls, Bien brought this suit
in state court, alleging that Stellar’s practice of causing a
Rhode Island area code to be displayed on her caller-ID when the
call was not actually initiated within Rhode Island constituted
a false, misleading, or deceptive representation or means in
violation of the FDCPA, see 15 U.S.C. § 1692e(10).
Opp’n 7-8, ECF No. 19.)
(See Pl.’s
Stellar removed the case to this Court
and now moves for summary judgment on the grounds that Bien
cannot prove that the debt at issue was a consumer debt within
the
meaning
of
the
FDCPA.
(Def.’s
Mot.
2,
ECF
No.
12.)
Additionally, Stellar argues that the use of the Rhode Island
phone numbers was not a false, deceptive, or misleading means to
collect the debt.
(Id.)
3
II.
Legal Standard
Stellar
brings
this
motion
pursuant
to
Rule
56
of
the
Federal Rules of Civil Procedure, which provides that summary
judgment is appropriate when “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).
When analyzing a motion
for summary judgment the court must view the evidence in the
light
most
favorable
to
the
non-moving
party
and
draw
all
reasonable inferences in the non-moving party’s favor.
DeLia v.
Verizon Commc'ns Inc., 656 F.3d 1, 3 (1st Cir. 2011).
However,
“[e]ven in cases where elusive concepts such as motive or intent
are
at
issue,
nonmoving
summary
party
judgment
rests
merely
may
upon
be
appropriate
conclusory
if
the
allegations,
improbable inferences, and unsupported speculation.”
Meuser v.
Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009) (quoting
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir. 1990)).
III. Discussion
Congress
enacted
the
FDCPA
“to
eliminate
abusive
debt
collection practices by debt collectors, to insure that those
debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote
consistent
State
action
collection abuses.”
to
protect
consumers
15 U.S.C. § 1692(e).
4
against
debt
In accordance with
these
purposes,
representation
collect
any
the
or
FDCPA
deceptive
debt.”
deceptiveness
of
prohibits
a
means
Id.
debt
§
the
of
“any
collect
to
use
or
attempt
1692e(10).
collector’s
In
false
assessing
representation
or
to
the
means,
courts in this circuit employ an objective test to determine
whether
the
communication
would
have
disabled
an
“unsophisticated consumer” from knowingly deciding how to handle
the debt collection call.
See Pollard v. Law Office of Mandy L.
Spaulding, 766 F.3d 98, 103 (1st Cir. 2014). 5
Assuming, without deciding, that there is enough evidence
to create a genuine issue of material fact as to whether the
debt involved was a consumer debt, Stellar is still entitled to
summary judgment.
juror
could
Bien has failed to explain how a reasonable
conclude
that
the
use
false, deceptive, or misleading.
of
the
phone
numbers
was
The undisputed facts show that
Stellar owned the use of the numbers and that Stellar’s name
appeared on Bien’s caller-ID.
(See Def.’s SUF ¶¶ 5, 8–13; Pl.’s
Resp. to Def.’s 1st Set of Interrogs. ¶ 10.)
5
Therefore, Stellar
Bien accurately noted in her memoranda that a majority of
the circuits apply a “least sophisticated consumer” standard.
See e.g., Lesher v. Law Offices of Mitchell N. Kay, PC, 650 F.3d
993, 1005 (3d Cir. 2011); Clomon v. Jackson, 988 F.2d 1314, 1318
(2d Cir. 1993). The First Circuit in Pollard, however, chose to
adopt the “unsophisticated consumer formulation to avoid any
appearance of wedding the standard to the ‘very last rung on the
sophistication ladder.’”
Pollard v. Law Office of Mandy L.
Spaulding, 766 F.3d 98, 103 n.4 (1st Cir. 2014) (quoting Gammon
v. GC Servs. Ltd. P'ship, 27 F.3d 1254, 1257 (7th Cir. 1994)).
5
did not employ any false representation or means.
See Scheffler
v. Integrity Fin. Partners, Inc., Civ. No. 12-188(DWF/TNL), 2013
WL
9768539,
at
*4
(D.
Minn.
Oct.
28,
2013);
Elliott
v.
GC
Servs., LP, No. 8:10–cv-1976-T-24-TBM, 2011 WL 5975671, at *3
(M.D. Fla. Nov. 28, 2011) (granting summary judgment motion for
defendant
on
violation
when
number
appear
to
§
1692e(10)
debt
on
claim
collector
because
allowed
consumer's
there
was
accurate
caller-ID);
no
FDCPA
“800”
phone
Glover
v.
Client
Servs., Inc., No. 1:07–CV-81, 2007 WL 2902209, at *3 (W.D. Mich.
Oct. 2, 2007) (granting defendant’s motion for judgment on the
pleadings
because
plaintiff
was
there
accurately
was
no
informed
FDCPA
that
violation
the
where
identity
the
of
the
caller was “unavailable”).
Similarly, Stellar’s use of the phone numbers was in no way
deceptive or misleading.
Notably, Stellar did not display a
fictitious name or a name familiar to Bien in an attempt to
trick
Bien
Interstate,
into
Inc.,
answering
502
F.
the
Supp.
call.
2d
943,
See
947
Knoll
(D.
v.
Allied
Minn.
2007)
(denying defendant’s motion to dismiss § 1692e claim where the
defendant displayed an alias on the caller-ID); see also Sohns
v. Bramacint, LLC, Civil No. 09–1225(JNE/FLN), 2010 WL 3926264,
at *3 (D. Minn. Oct. 1, 2010) (granting plaintiff’s motion for
partial summary judgment on FDCPA liability where the defendant
caused the plaintiff’s mother-in-law’s phone number to appear on
6
the plaintiff’s caller-ID).
facts
reveal
that
Stellar
To the contrary, the undisputed
was
entirely
upfront
about
its
identity, as evidenced by the fact that Stellar’s name appeared
on Bien’s caller-ID.
Therefore, Stellar’s practice would not
render an unsophisticated consumer unable to make an informed
decision as to whether to answer the call.
See Scheffler, 2013
WL 9768539, at *4 (granting defendant’s summary judgment motion
because
it
was
not
deceptive
to
display
on
the
plaintiff’s
caller-ID a local telephone number that the defendant owned and
if called would reach the defendant).
IV.
Conclusion
Ultimately,
genuine
issue
communication
FDCPA
Bien
of
was
framework.
has
failed
material
false,
to
fact
deceptive,
Accordingly,
show
as
or
to
the
existence
whether
misleading
Stellar’s
motion
of
a
Stellar’s
within
for
the
summary
judgment is GRANTED. 6
IT IS SO ORDERED:
William E. Smith
Chief Judge
Date: September 21, 2015
6
Stellar also argues that, assuming there was a false,
deceptive, or misleading representation or means, Bien has
failed to establish a genuine issue of material fact as to
materiality. This Court need not address this issue.
7
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