O'Dell v. USAA Federal Savings Bank

Filing 62

ORDER denying Defendant's 35 MOTION in Limine to Exclude Evidence of or Reference to Plaintiff's Alleged Actual Damages. Signed by Judge Robert C. Chambers on 4/30/2018. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CHRISTOPHER O’DELL,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-1427

USAA FEDERAL SAVINGS BANK
aka USAA,
Defendant.

ORDER
Pending before the Court is USAA’s Motion in Limine to Exclude Evidence of or
Reference to Plaintiff’s Alleged Actual Damages (ECF No. 35). After USAA had filed that motion,
and Plaintiff had responded, the Court held a Pretrial Conference during which the Court heard
argument regarding this and other motions. In the midst of that April 23rd Pretrial Conference, the
Court instructed the parties to provide supplemental briefing with West Virginia case law relevant
to the allowance of Plaintiff’s claims for actual damages in this case. Omnibus Order, ECF No.
56, at 2. The parties complied with the Court’s direction, and filed the subsequent briefings on
West Virginia case law. USAA’s Reply, ECF No. 57; Pl.’s Surreply, ECF No. 60.
After review of the parties’ filings, and upon consideration of the parties’ argument at the
Pretrial Conference, the Court finds that Plaintiff has provided sufficient evidence to permit him
to seek actual damages at trial. In Clements v. HSBC Auto Fin., Inc., Judge Berger permitted the
plaintiff to receive actual damages despite the recognition that “the evidence of stress resulting
from [the calls] was minimal.” No. 5:09-cv-00086, 2011 WL 2976558, at *6 (S.D.W. Va. July 21,

2011) (Berger, J.). Similar to the relatively minimal evidence in Clements, the Plaintiff admits that
his own actual damages “are moderate.” Pl.’s Surreply, at 3. However, his “moderate” showing
satisfies the requisite evidence for a request for actual damages for claims arising under West
Virginia Consumer Credit Protection Action (“WVCCPA”).
Although “moderate,” Plaintiff has demonstrated evidence of actual damages from
annoyance, stress, inconvenience, and the like. Not only did he testify to the stress caused by the
calls during his deposition, but he even allegedly notified USAA that the calls made him nervous.
Ex. 1 to Pl.’s Surreply, ECF No. 60-1, at 10. Additionally, Plaintiff has asserted that he felt
harassed by what he describes as “incessant” calls. Id. at 10, 14. In fact, according to Plaintiff, the
continuous calls affected not only him, but also his immediate family, which compounded the
distress. Id. at 10; Pl.’s Reply, at 3. The Court finds that this “moderate” showing adequately
supports permitting the question of actual damages to go to trial. Ultimately, the jury will have to
determine whether Plaintiff’s evidence entitles him to those damages.
Accordingly, the Court DENIES USAA’s Motion in Limine to Exclude Evidence of or
Reference to Plaintiff’s Alleged Actual Damages (ECF No. 35).
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.
ENTER:

April 30, 2018

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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