Tucker et al v. Navy Federal Credit Union

Filing 101

ORDER Denying Plaintiffs' Pretrial Motions: denying 96 Motion to Strike ; denying 97 Motion in Limine; denying 99 Motion to Continue. Signed by Chief Judge John Preston Bailey on 1/3/2012. (cmd)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

CECIL L. TUCKER, JR., and
SHANNON R. TUCKER,
Plaintiffs,
v.

Civil Action No. 3:10-CV-59
(BAILEY)

NAVY FEDERAL CREDIT UNION,
Defendant.
ORDER DENYING PLAINTIFFS’ PRETRIAL MOTIONS
Pending before this Court are the plaintiffs’ Motion to Strike [Doc. 96], Motion in
Limine No. 1 to Preclude Evidence [Doc. 97], and Motion to Continue Trial Date [Doc. 99].
To date, defendant Navy Federal Credit Union (“Navy Federal”) has filed no response.
Having carefully considered the plaintiffs’ motions, this Court finds that the same should be
DENIED.
The instant motions are commonly based upon the plaintiffs’ disagreement with this
Court’s ruling at the pretrial conference permitting Navy Federal to amend its Answer to
assert a defense under § 46A-5-101(8) of the West Virginia Consumer Credit and
Protection Act (“WVCCPA”), commonly referred to as the “bona fide error” defense.
Specifically, the plaintiffs ask this Court to strike the defense and preclude evidence from
being offered in support thereof because, they contend, discovery shows that Navy Federal
does not maintain procedures reasonably adapted to prevent violations of the WVCCPA,
citing Stover v. Fingerhut Direct Marketing, Inc., 2010 WL 1507182 (S.D. W.Va. Mar. 19,
2010) (Berger). ([Doc. 96] at 2; [Doc. 97] at 2). Alternatively, the plaintiffs ask for a
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continuance of the January 10, 2012, trial date for up to 45 days to prepare a response to
the defense. ([Doc. 99] at 3). For the reasons that follow, this Court will deny each of the
plaintiffs’ requests for relief.
First, this Court will neither strike the bona fide error defense nor preclude Navy
Federal from introducing evidence that it applies in this case. Instead, this Courts find it
more appropriate to hear the evidence at the bench trial before determining the applicability
of the defense. In this regard, this Court also notes that it is not bound by the decision in
Stover, concerning whether the procedures maintained must be adapted specifically to
avoid violations of the WVCCPA.
In addition, this Court finds that the plaintiffs have failed to show good cause for a
continuance of the trial. After the summary judgment stage, the plaintiffs have two claims
remaining, both arising under the WVCCPA. As relevant here, one of those claims arises
under § 46A-2-125(d), which prohibits a debt collector from “[c]ausing a telephone to ring
or engaging any person in telephone conversation repeatedly or continuously, or at unusual
times or at times known to be inconvenient, with intent to annoy, abuse, oppress or
threaten any person at the called number.” (Emphasis added). The bona fide error
defense applies if Navy Federal “establishes by a preponderance of evidence that a
violation is unintentional or the result of a bona fide error of fact notwithstanding the
maintenance of procedures reasonably adapted to avoid any such violation or error . . ..”
W.Va. Code § 46A-5-101(8) (emphasis added). As the italics show, the plaintiffs’ § 46A-2125(d) claim requires that they prove intent, whereas § 46A-1-101(8) requires Navy Federal
to prove that the telephone calls supporting a violation of § 46A-2-125(d) were
unintentional. Perhaps more pertinently, the plaintiffs have known (or should have known)
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since the filing of their Complaint over one-and-one-half years ago that they would be
required to prove the intentional nature of the phone calls to succeed on their § 46A-2125(d) claim. As such, this Court is unpersuaded that its recent ruling permitting Navy
Federal to assert the bona fide error defense creates the sea change in the evidence the
plaintiffs now claim they will be required to present.
For the reasons above, this Court hereby DENIES the plaintiffs’ Motion to Strike
[Doc. 96], Motion in LImine No. 1 to Preclude Evidence [Doc. 97], and Motion to Continue
Trial Date [Doc. 99].
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: January 3, 2012.

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