Yount v. Midland Funding et al

Filing 63

MEMORANDUM OPINION AND ORDER: Granting in Part and Denying in Part 36 MOTION for Summary Judgment . Granting in Part and Denying in Part 40 MOTION for Partial Summary Judgment filed by Pamela J Yount. The plaintiff is awarded $3,000.00 in statutory damages. A separate judgment shall enter. See Order for details. Signed by District Judge J Ronnie Greer on 2/10/2016. (LMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

PAMELA J. YOUNT,
Plaintiff,
v.
MIDLAND FUNDING, LLC, ET AL.,
Defendants.

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No. 2:14-CV-108

MEMORANDUM OPINION AND ORDER
This Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and
Telephone Consumer Protection Act (“TCPA”), 74 U.S.C. § 227 et seq., case is before the Court
on what are essentially cross motions for summary judgment, [Docs. 36 and 40].1

Defendant

Finkelstein, Kern, Steinberg & Cunningham, P.C. (“FKSC”) assert two main arguments and
several ancillary ones. FKSC argues that the FDCPA claims fail because the collection call
placed to plaintiff’s employer was not a “communication” under the Act. For the reasons below,
this Court agrees with FKSC. Regarding the TCPA allegations, the defendant claims those fail
because the plaintiff was not charged for the collection calls placed to plaintiff’s cellular
telephone. The Court disagrees with this argument. The other arguments are also discussed

1

There is also a pending “Motion to Allow Physical Filing of Exhibit,” [Doc. 39], specifically, the recording of a
telephone conversation. That motion is DENIED AS MOOT, for a transcript of this call is included in the record.
In addition, on January 21, 2015, the plaintiff and Defendant Midland Funding, LLC filed a Stipulation of Dismissal
with Prejudice leaving only Defendants FKSC and Defendant Beth Doe. This Stipulation eliminated claims asserted
in the Complaint which only applied to Midland Funding, LLC. According to the record, Ms. Doe, who is an
alleged agent of FKSC and who the summary judgment motion filings identify as Ms. Keirsey, has never been
served. As such, the case against her is DISMISSED pursuant to Federal Rule of Civil Procedure 4(m).
Accordingly, the plaintiff’s Motion for “Partial” Summary Judgment in actuality addresses all remaining claims
against the only remaining defendant, FKSC. Since FKSC’s motion addresses all claims asserted against it, the
Court is essentially deciding cross motions for summary judgment. This Memorandum Opinion will be organized as
such.

below. For the reasons that follow, both motions will be GRANTED IN PART AND DENIED
IN PART.
I. BACKGROUND
In short, this case involves a message left with plaintiff’s employer and six telephone
calls placed to plaintiff’s cellular telephone from FKSC. The plaintiff consumer defaulted on a
debt, and FKSC, a debt collector, attempted to collect this debt, see 15 U.S.C. §§ 1692a(3), (5)
and (6). In so doing, on December 13, 2013, FKSC placed a call to plaintiff’s employer. The
exchange was as follows:
Yount Employer: (answering call) Hamblen County Schools.
FKSC: Yes, ma’am, I’m trying to reach Pamela Yount, please.
Yount Employer: I don’t have a Pamela Yount here at the central
office.
FKSC: Okay, um, do you know her at all, by any chance?
Yount Employer: I can put you to personnel. Hold on just a
moment.
FKSC: Thank you.
Yount Employer: Personnel, federal programs.
FKSC: Uh, yes sir, um, this is Beth, I’m with Finkelstein Kern
Steinberg &
Cunningham, attorneys in Knoxville.
Yount Employer: Uh huh.
FKSC: On a quality recorded line. I’m trying to reach Pamela
Yount, Y-O-U-N-T.
Yount Employer: Uh huh. Uh, well she is not at this location, and,
but, however, I can, I can, have her, I can, uh, if you leave me your
contact information.
FKSC: I can.
Yount Employer: I can, I can, I can send her a message.
FKSC: Okay, would be great. Let me leave you a number please
sir.
Yount Employer: Alright, let me see here. Alright, what’s, uh.
FKSC: Okay, the number is 1 888 (ok) 200 (ok) 6501.
Yount Employer: 6501. Okay.
FKSC: It’s extension 202 (ok). My name is Beth – B-E-T-H.
Yount Employer: And who are you with again, Beth?
FKSC: Uh, Finkelstein, Kern . . . .
Yount Employer: How do you spell that?

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FKSC: It’s F-I-N-K (F-I-N) K-E-L (E-L) S-T-E-I-N (ok). Kern, KE-R-N. Just
Finklestein, Kern’s fine.
Yount Employer: Okay.
FKSC: Okay, and may I ask who I’m leaving the message with?
Yount Employer: This is Scott Bolton.
FKSC: Okay, Mr. Bolton, I thank you so much. If you would just
pass this message on to her, please sir.
Yount Employer: I sure will.
FKSC: Thank you. You have a great day.
Yount Employer: You too.
FKSC: Bye, bye.
Yount Employer: Bye.
Also, FKSC used a “pre-recorded dialer” to call plaintiff’s cellular telephone on December 17,
19, 26, and 31 and January 2 and 7. The record does not specify how FKSC obtained plaintiff’s
cellular telephone number.
On April 1, 2014, the plaintiff filed this lawsuit. She amended her Complaint on May 14,
2014, and alleges violations of the FDCPA and TCPA and “invasion of privacy by revelation of
private financial information to third parties and by intrusion upon seclusion.” Specifically, the
plaintiff alleges that FKSC violated sections 1692b(1) and (3), 1692c(b), 1692e, 1692e(10),
1692d and 1692f of the FDCPA. The plaintiff further alleges that FKSC violated sections
227(b)(1)(A) and (b)(1)(A)(iii) of the TCPA.
II. STANDARD OF REVEW
The summary judgment standard is well settled. Summary judgment is proper where
Athe pleadings, the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue of material fact and that the movant is entitled to judgment as a matter of
law.@ Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must view
the facts contained in the record and all inferences that can be drawn from those facts in the light
most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

3

U.S. 574, 587 (1986); Nat=l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir.
2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the
truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a
showing, the non-moving party must present some significant, probative evidence indicating the
necessity of a trial for resolving a material factual dispute. Id. at 322.

A mere scintilla of

evidence is not enough. Anderson, 477 U.S. at 252; McClain v. Ontario, Ltd., 244 F.3d 797, 800
(6th Cir. 2000). This Court=s role is limited to determining whether the case contains sufficient
evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S.
at 248-49; Nat=l Satellite Sports, 253 F.3d at 907. If the non-moving party fails to make a
sufficient showing on an essential element of its case with respect to which it has the burden of
proof, the moving party is entitled to summary judgment.

Celotex, 477 U.S. at 323. If this

Court concludes that a fair-minded jury could not return a verdict in favor of the non-moving
party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at
251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
The party opposing a Rule 56 motion may not simply rest on the mere allegations or
denials contained in the party=s pleadings. Anderson, 477 U.S. at 256. Instead, an opposing
party must affirmatively present competent evidence sufficient to establish a genuine issue of
material fact necessitating the trial of that issue. Id. Merely alleging that a factual dispute exists
cannot defeat a properly supported motion for summary judgment. Id. A genuine issue for trial
is not established by evidence that is Amerely colorable,@ or by factual disputes that are
irrelevant or unnecessary. Id. at 248-52.

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III. ANALYSIS
A. Whether defendant violated various sections of the FDCPA?
The defendant moves for summary judgment regarding causes of action under several
FDCPA sections. Congress passed the FDCPA to eliminate “abusive, deceptive, and unfair debt
collection practices.” Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting 15
U.S.C. § 1692(a)). The Sixth Circuit has noted that the act is “extraordinarily broad” and must be
enforced as written, even when eminently sensible exceptions are proposed in the face of an
innocent and/or de minimis violation. See Frey v. Gangwish, 970 F.2d 1516, 1521 (6th Cir.
1992). While § 1692e lists a number of examples of false or misleading representations, the text
of the statute itself indicates that the examples are not meant to limit its prohibition on the use of
false, deceptive or misleading representations in connection with the collection of a debt. 15
U.S.C. § 1692e. Likewise, § 1692f contains the same language, making clear that the examples
set forth therein do not “limit[ ] the general application” of its prohibition on the use of unfair or
unconscionable means to collect or attempt to collect any debt. 15 U.S.C. § 1692f. The Seventh
Circuit recently observed that the phrase “unfair or unconscionable” used in § 1692f “is as vague
as they come.” Beler v. Blatt, Hasenmiller, Leibsker & Moore, 480 F.3d 470, 474 (7th Cir.
2007).
In assessing whether particular conduct violates the FDCPA, courts apply “the least
sophisticated consumer” test to objectively determine whether that consumer would be misled.
Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir. 2006); Smith v. Transworld
Systems, Inc., 953 F.2d 1025, 1029 (6th Cir. 1992). The least sophisticated consumer test is
designed “to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd.”
Kistner v. Law Offices of Michael P. Margelefsky, LLC, 518 F.3d 433, 438 (6th Cir. 2008)

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(quotations and citation omitted). In addition, “false but non-material representations are not
likely to mislead the least sophisticated consumer and therefore are not actionable under §§
1692e or 1692f.” Clark v. Lender Processing Svs., -- Fed. App. --, 2014 WL 1408891, at *6 (6th
Cir. Ap. 14, 2014) (citing Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir. 2010)).
The issues below are addressed applying this standard. This is an objective test that
asks whether there is a reasonable likelihood that an unsophisticated consumer who is willing to
consider carefully the contents of a communication might yet be misled by them. Grden v. Leikin
Ingber & Winters PC, 643 F.3d 169, 172 (6th Cir. 2011). The least sophisticated consumer “can
be presumed to possess a rudimentary amount of information about the world and a willingness
to read a collection notice with some care.” Colomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir.
1993).
1. Sections 1692b(1), (3) and 1692c(b)
The plaintiff alleges that FKSC violated sections 1692b(1) and (3) and 1692c(b) when
FKSC placed the telephone call to plaintiff’s employer on December 13, 2013. Section 1692b
states in pertinent part:
Any debt collector communicating with any person other than the
consumer for the purpose of acquiring location information about
the consumer shall—
(1) identify himself, state that he is confirming or correcting
location information concerning the consumer, and, only if
expressly requested, identify his employer;
....
(3) not communicate with any such person more than once unless
requested to do so by such person or unless the debt collector
reasonably believes that the earlier response of such person is
erroneous or incomplete and that such person now has correct or
complete location information[.]

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15 U.S.C. § 1692b (2016). In addition, section 1692c(b) states:
(b) Communication with third parties
Except as provided in section 1692b of this title, without the prior
consent of the consumer given directly to the debt collector, or the
express permission of a court of competent jurisdiction, or as
reasonably necessary to effectuate a postjudgment judicial remedy,
a debt collector may not communicate, in connection with the
collection of any debt, with any person other than the consumer,
his attorney, a consumer reporting agency if otherwise permitted
by law, the creditor, the attorney of the creditor, or the attorney of
the debt collector.
§ 1692c(b).
FKSC argues that it is entitled to summary judgment for these alleged violations because
the call does not qualify as a “communication” under the Act.

The FDCPA defines

“communication” as “the conveying of information regarding a debt directly or indirectly to any
person through any medium.” § 1692a(2). The Sixth Circuit elaborated on this definition in
Brown v. Van Ru Credit Corporation, 804 F.3d 704, 742 (6th Cir. 2015). The court stated, “To
convey information regarding a debt, a communication must at a minimum imply the existence
of a debt. Otherwise, whatever information is conveyed cannot be understood as ‘regarding a
debt.’” Id.
Here, similar to the case in Brown, the caller does nothing to reveal, either directly or
indirectly, the existence of a debt. The caller merely reveals generic information. Id.; see Brody
v. Genpact Serv., LLC, 980 F.Supp.2d 817, 819-21 (E.D. Mich. 2013); Stewart v. Nathan &
Nathan, No. 2:12-cv-361, 2014 WL 977979, at *3 (E.D. Tenn. March 12, 2014). But see Lee v.
Robinson, Reagan & Young, PLLC, No. 3:14-CV-0748, 2015 WL 328323, at *6-7 (M.D. Tenn.
Jan. 26, 2015).2 The caller identifies her employer and leaves a message for the plaintiff to return

2

The plaintiff cited multiple cases in support. None were controlling authority. This Court has reviewed those
cases and finds that they are distinguishable on their facts. The defendant provided an accurate summary in its

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her call. She does state that her employer is a law firm and that the phone call is on a recorded
line. Even still, this information does not indirectly imply the existence of a debt. Law firms
handle many matters, so there is no indication that the call regards the collection of a debt. As
such, FKSC’s motion is GRANTED in this regard, and the plaintiff’s motion is DENIED.
2. Section 1692d
The plaintiff also alleges that FKSC violated section 1692d based on the December 13,
2013 telephone call. Section 1692d states:
A debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any person in
connection with the collection of a debt. Without limiting the
general application of the foregoing, the following conduct is a
violation of this section:
(1) The use or threat of use of violence or other criminal means to
harm the physical person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural
consequence of which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to
pay debts, except to a consumer reporting agency or to persons
meeting the requirements of section 1681a(f) or 1681b(3) of this
title.
(4) The advertisement for sale of any debt to coerce payment of the
debt.
(5) Causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with intent to
annoy, abuse, or harass any person at the called number.
(6) Except as provided in section 1692b of this title, the placement
of telephone calls without meaningful disclosure of the caller's
identity.

footnote, and the Court agrees with defendant’s analysis on why they are factually distinguishable. See [Doc. 44,
pg. 2-3 n. 1].

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§ 1692d. The plaintiff does not specify a particular subsection. Thus, the Court must determine
if the phone call was made in a harassing manner.
To determine whether the phone call was made in a harassing manner, the Court will use
the “least sophisticated consumer” standard. Barany–Snyder v. Weiner, 539 F.3d 327, 333 (6th
Cir. 2008) (citing Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir.2006)). As
such, the Court must determine whether there is a genuine issue of material fact regarding
whether the “least sophisticated consumer” would view the phone call as harassing, oppressive,
or abusive.
To prevail under § 1692d, the consumer must establish that the content of the call was
oppressive, and that the debt collector intended it to be. See Juras v. Aman Collection Serv., Inc.,
829 F.2d 739, 741 (9th Cir. 1987), cert denied, 488 U.S. 875, (1988). To determine whether the
debt collector intended to harass the consumer, courts consider the frequency, persistence, and
volume of the telephone calls. See Martin v. Select Portfolio Serving Holding Corp., No. 1:05cv-273, 2008 WL 618788, at *6 (S.D. Ohio March 3, 2008).
Here, there was only one call. The call did not indicate, directly or indirectly, that it
regarded the collection of a debt. Therefore, there is no genuine issue of material fact whether
the least sophisticated consumer would view this one phone call that only revealed generic
information as harassing, oppressive, or abusive.

Accordingly, the defendant’s motion is

GRANTED in this regard.
3. Section 1692e
The plaintiff alleges that FKSC violated section 1692e based on the December 13, 2013
telephone call. Section 1692e states in pertinent part:
A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any
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debt. Without limiting the general application of the foregoing, the
following conduct is a violation of this section:
....
(10) The use of any false representation or deceptive means to
collect or attempt to collect any debt or to obtain information
concerning a consumer[.]
§ 1692e. The plaintiff alleges that the defendant violated this section in general and in specific
subsection ten.
To determine whether defendant made false, deceptive, or misleading representations, the
Court must use the “least sophisticated consumer” standard. Barany–Snyder, 539 F.3d at 33.
Thus, the Court must decide whether the least sophisticated consumer would view the telephone
call as false, deceptive or misleading. Again, there was only one phone call, and it only revealed
generic information. There are no specific allegations that the contents of this phone call were
false in any way. This generic information cannot be deceptive or misleading. As such,
summary judgment is appropriate. Defendant’s motion is GRANTED in this regard.
4. Section 1692f
The plaintiff alleges that FKSC violated section 1692f based on the December 13, 2013
telephone call. Section 1692f states:
A debt collector may not use unfair or unconscionable means to
collect or attempt to collect any debt. Without limiting the general
application of the foregoing, the following conduct is a violation of
this section . . . .
§ 1692f. Again, the plaintiff only makes a general allegation and does not refer to a specific
subsection.
To determine whether defendant used unfair or unconscionable means to collect a debt,
the Court must use the “least sophisticated consumer” standard. Barany–Snyder, 539 F.3d at 33.

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Whether defendant engaged in “unfair or unconscionable means” depends upon the nature of the
call. Again, there was just one call, and it was generic in nature. No specific or debt related
information was disclosed. As such, summary judgment is proper. The defendant’s motion is
granted as to this claim.
B. Whether defendant violated various sections of the TCPA?
The defendant moves for summary judgment regarding causes of action under two
sections of the TCPA, namely sections 227(b)(1)(A) and (b)(1)(A)(iii). These sections state:
(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States,
or any person outside the United States if the recipient is within the
United States—
(A) to make any call (other than a call made for
emergency purposes or made with the prior express consent
of the called party) using any automatic telephone dialing
system or an artificial or prerecorded voice—
(i) to any emergency telephone line (including any
“911” line and any emergency line of a hospital, medical
physician or service office, health care facility, poison
control center, or fire protection or law enforcement
agency);
(ii) to the telephone line of any guest room or
patient room of a hospital, health care facility, elderly
home, or similar establishment; or
(iii) to any telephone number assigned to a paging
service, cellular telephone service, specialized mobile radio
service, or other radio common carrier service, or any
service for which the called party is charged for the call,
unless such call is made solely to collect a debt owed to or
guaranteed by the United States[.]
47 U.S.C. §§ 227(b)(1)(A), (b)(1)(A)(iii).

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There is no dispute of fact that FKSC made the six telephone calls to plaintiff’s cellular
telephone via an automatic telephone system.3 The parties dispute whether the plaintiff was
charged for these calls. In addition, the defendant argues that there can be no violation because
plaintiff did not actually “receive” or “answer” these calls. The Court will address each issue in
turn.
The Sixth Circuit has not definitively ruled on whether the last phrase, “or any service for
which the called party is charged for the call,” requires that the recipient of an automated call to
a cellular telephone be “charged” for that call in order to state a claim under the TCPA when
read with the rest of the statute. The defendant urges the Court to follow the United States
District Court for the Western District of Michigan’s ruling in Miller v. Timothy E. Baxter &
Associates, P.C., No. 1:14-CV-1117, 2015 WL 4922441, at *2 (W.D. Mich. Aug. 18, 2015).
That court held that “[t]o state a claim for violation of the TCPA resulting from a telephone call
made to a cellular phone, a plaintiff must allege: (1) the defendant placed the call; (2) the
plaintiff was charged for the call; and (3) the call was placed using “an automatic telephone
dialing system or an artificial prerecorded voice.” Id. (citing Patton v. Corinthian Colleges, Inc.,
No. 13-14814, 2014 WL 1118467, at *2 (E.D. Mich. Mar. 20, 2014)). However, the plaintiff
argues that the Court should follow the Eleventh Circuit’s reasoning in Osorio v. State Farm
Bank, F.S.B., 746 F.3d 1242, 1256-1258 (11th Cir. 214). That court held that “charged for the
call” modifies “any service” and not the entire list included in the subsection. Id.
The Court has reviewed all the cases cited by the parties. The Court finds the reasoning
in Osorio more persuasive. Osorio actually analyzed this particular issue in great detail. The
reasoning is thorough and sound. Miller, however, did not analyze the issue. It merely stated
3

The Amended Complaint alleges FKSC made “at least four (4) telephone calls.” [Doc. 7, ¶ 56]. The summary
judgment motion filings establish six calls. The defendant even lists the exact dates of those calls in its filings.
Thus, the Court will use six calls instead of four.

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three elements (which included the “charged for” language) and quoted another Eastern District
of Michigan case, Patton v. Corinthian Colleges, Inc., No. 13-14814, 2014 WL 1118467, at *2
(E.D. Mich. Mar. 20, 2014). The Patton case likewise did not provide specific analysis of the
exact statutory language at issue either. Moreover, the Sixth Circuit may have telegraphed how
it would rule on this issue in Hill v. Homeward Residential, Inc., 799 F.3d 544, 548 (6th Cir.
2015). Although Hill did not address the specific issue at hand, it stated generally:
Congress passed the Telephone Consumer Protection Act in
response to “[v]oluminous consumer complaints about abuses of
telephone technology—for example, computerized calls dispatched
to private homes.” Mims v. Arrow Fin. Servs., LLC, ––– U.S. ––––
, 132 S.Ct. 740, 744, 181 L.Ed.2d 881 (2012). The Act accordingly
“restricts certain kinds of telephonic and electronic”
communications. Sandusky Wellness Ctr., LLC v. Medco Health
Solutions, Inc., 788 F.3d 218, 221 (6th Cir. 2015). For example,
the Act prohibits any person from making “any call” to someone's
cellphone “(other than a call made for emergency purposes or
made with the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or prerecorded
voice.” 47 U.S.C. § 227(b)(1)(A)(iii).
Id. The court in Hill used section 227(b)(1)(A)(iii) as an example and did not mention the
“charged for” phrase as part of the analysis as relating automatic telephone dialing system calls
to personal cellular telephones.
To be sure, the Court finds the analysis in Osorio persuasive and adopts that same
reasoning as to analyzing this exact issue before it. As such, the Court holds that the “charged
for” language does not apply to calls made via automatic telephone dialing systems to a personal
cellular telephone.
Next, the Court must analyze whether the plaintiff must have received or answered the
calls in order for defendant to have violated the Act. The Court finds the reasoning in Fillichio v.
M.R.S. Associates, Inc., No. 09-61629-CIV, 2010 WL 4261442, at *3 (S.D. Fl. Oct. 19, 2010),

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persuasive of this issue, and the Court adopts that reasoning. Accordingly, this Court holds that
the intended recipient need not have answered the calls. The act of placing the calls triggers the
statute. Id.
In sum, there is no genuine issue of material fact that FKSC placed six calls via an
automatic telephone dialing system to the plaintiff’s cellular telephone, for which she was the
intended recipient.4

It matters not that she never actually received these calls.

Defendant FKSC has violated the TCPA six times.

As such,

The plaintiff’s motion for summary

judgment is GRANTED in this regard.
The TCPA provides that a plaintiff who has received more than one telephone call within
any 12-month period by or on behalf of the same entity in violation of the regulations prescribed
under this section may bring an action for statutory damages “for each such violation.” 47
U.S.C. § 227(b)(3). The plaintiff is entitled to $500.00 for each violation. § 227(b)(3); see
Charvat v. GVN Michigan, Inc., 561 F.3d 623, 630-632 (6th Cir. 2009) (defining “each such
violation”). Here, the plaintiff does not seek treble damages. Because there were six calls, the
plaintiff is awarded $500.00 for each call for a total of $3,000.00.
C. Whether defendant invaded the plaintiff’s privacy?
The defendant moves for summary judgment regarding plaintiff’s cause of action that
defendant allegedly invaded the plaintiff’s privacy. The tort of “invasion of privacy” has been
divided into four separate causes of action: (1) the unreasonable intrusion upon a plaintiff's
seclusion; (2) the public disclosure of private facts; (3) false light; and (4) the appropriation of
another's name or likeness for advertising or other business purposes. The Tennessee Supreme
Court has only expressly recognized that a cause of action exists for false light and the

4

The defendant does not argue on summary judgment or in response to the plaintiff’s motion that the plaintiff gave
her “prior express consent” to receive calls. Therefore, the Court will not address that issue.

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unreasonable intrusion into a plaintiff's seclusion. Givens v. Mullikin ex rel. Estate of
McElwaney, 75 S.W.2d 383, 411–12 (Tenn.2002). The Amended Complaint appears to assert
two types of invasion of privacy claims from the heading entitled “INVASION OF PRIVACY
BY REVELATION OF PRIVATE FINANCIAL INFORMATION TO THIRD PARTIES AND
BY INTRUSION UPON SECLUSION.” [Doc. 7, pg. 15]. However, neither the Amended
Complaint nor filings related to the summary judgment motion assert a claim for public
disclosure. Instead, they focus on intrusion upon seclusion. As such, that is the only claim
properly asserted, and the Court will only address that claim.
The Tennessee Supreme Court adopted the Restatement (Second) of Torts (1977),
Section 652B, to define “unreasonable intrusion of seclusion of another.” Givens, 75 S.W.3d at
41. It states:
One who intentionally intrudes, physically or otherwise upon the
solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person.
Id. Comment D to Section 652B states:
There is likewise no liability unless the interference with the
plaintiff's seclusion is a substantial one, of a kind that would be
highly offensive to the ordinary reasonable man, as the result of the
conduct to which the reasonable man would strongly object. Thus
there is no liability for knocking at the plaintiff's door, or calling
him to the telephone on one occasion or even two or three, to
demand payment of a debt. 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.
Restatement (Second) of Torts (1977), Section 652B, Comment D. Accordingly, a plaintiff may
have an actionable claim for intrusion upon her seclusion if she can demonstrate that phone calls
made by debt collectors were made with “such persistence and frequency as to amount to a

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course of hounding the plaintiff . . . .” This requires much of the same analysis that the court
employed in determining whether there was a genuine issue of material fact regarding whether
defendants made phone calls in a “harassing” manner in violation of 15 U.S.C. § 1692d. It is
somewhat different, however, in regards to the number of calls. The plaintiff only alleged a
section 1692d violation in regards to one phone call placed to the plaintiff’s employer. Here, the
allegation, the Court assumes, applies to that phone call and the six placed to the plaintiff’s
cellular telephone. However, the Amended Complaint does not specify which calls. It merely
“incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.”
[Doc. 7, ¶ 74]. Notwithstanding, this Court will analyze the claim as to all telephone calls.
Here, there is no genuine issue of material fact that the mere seven calls were made with
such persistence and frequency as to amount to hounding. These calls were placed in December
2013, and January 2014. There are no allegations as to other calls. The plaintiff did not file suit
until April 1, 2014. Thus, the record does not create an issue of fact as to the persistence and
frequency of the calls, for there are only seven in two months and then none for three months
thereafter. Summary judgment is GRANTED in the defendant’s favor on this issue.
IV. CONCLUSION
For the reasons set forth above, defendants’ Motion for Summary Judgment, [Doc. 36], is
GRANTED IN PART AND DENIED IN PART. Similarly, the plaintiff’s Motion for Partial
Summary Judgment, [Doc. 40], is GRANTED IN PART AND DENIED IN PART. As stated
above, the plaintiff is awarded $3,000.00 in statutory damages. A separate judgment shall enter.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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