Baemmert, John v. Credit One Bank, N.A.
Filing
43
OPINION & ORDER granting in part and denying in part 9 Motion for Summary Judgment; deferring ruling on 15 Motion for Summary Judgment. Plaintiff must explain by one week from the date of this order why the court should not grant summary judgment in favor of defendant under Federal Rule of Civil Procedure 56(f). Signed by District Judge James D. Peterson on 9/25/2017. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JOHN BAEMMERT,
Plaintiff,
v.
OPINION & ORDER
CREDIT ONE BANK, N.A.,
16-cv-540-jdp
Defendant.
Plaintiff John Baemmert received phone calls attempting to collect credit card debt for
defendant Credit One Bank, N.A. Baemmert did not have a Credit One credit card, and he
repeatedly informed the callers that they reached the wrong person. But the calls continued,
and he received more than 60 collection calls over 12 days. Baemmert sued Credit One,
claiming violations of the anti-robocall provision of the Telephone Consumer Protection Act
of 1991 (TCPA) and invasion of privacy under Wisconsin law.
Both sides move for summary judgment. Dkt. 9 and Dkt. 15. Baemmert has established
that some of the calls were made on Credit One’s behalf using an Automatic Telephone Dialing
System (ATDS). He has also established that the other requirements for a claim under the
TCPA are met, specifically that he incurred charges for the incoming calls. But his evidence
does not establish that all the calls were made by ATDS. The court will therefore grant
summary judgment to Baemmert on his TCPA claim as to liability, leaving the question of
damages, which depends on the number of the ATDS calls, for trial.
As for the state-law invasion of privacy claim, in Keller v. Patterson the Wisconsin Court
of Appeals has held that unwanted phone calls are not a basis for an invasion of privacy claim.
2012 WI App 78, ¶¶ 10-11, 343 Wis. 2d 569. Accordingly, Baemmert’s invasion of privacy
claim fails as a matter of law. Because this is a ground not addressed by the parties, the court
will, pursuant to Federal Rule of Civil Procedure 56(f), give Baemmert a short deadline to
respond to the court’s proposed decision to grant summary judgment to Credit One on the
invasion of privacy claim.
UNDISPUTED FACTS
The parties’ submissions suggest that many facts are in dispute. But for reasons
explained in the analysis section, genuine factual disputes are few. The following facts are not
genuinely disputed, except where noted.
In January and February 2016, Baemmert received calls from individuals attempting to
collect credit card debt for Credit One. Baemmert did not have a Credit One credit card, and
Baemmert asked to be removed from the calling list. Baemmert received over 60 such calls
within 12 days, as documented by Baemmert’s call logs.
Credit One had engaged two vendors, First Contact, LLC, and iEnergizer, to make debt
collection calls on its behalf. Both of these vendors called Baemmert without consent. Credit
One attempts to dispute that its vendors made calls to Baemmert, but for various reasons its
evidence does not raise a genuine dispute that Credit One’s vendors called Baemmert.
At least some of the calls were made using an ATDS. Again, Credit One’s evidence does
not place this fact in genuine dispute. But Baemmert’s evidence establishes only that some of
the calls used an ATDS. The number of ATDS calls is genuinely disputed.
Sometime in 2015, before the calls at issue were made, Baemmert’s cellular service
provider, Cellular One, disconnected Baemmert’s service for his failure to pay outstanding bills.
Dkt. 30 (Baemmert Dep. 37:6-12). So to use his cell phone again, Baemmert downloaded
2
TextMe, a Voice over Internet Protocol (VoIP) application that transmits calls and text
messages through the internet. Id. at 40:11-14. The TextMe app allowed Baemmert to use his
cell phone only when connected by Wi-Fi to the internet. If someone called Baemmert when
he had no internet connection, Baemmert’s cell phone would not ring, and he could see the log
of missed calls on his phone only when he re-established a Wi-Fi connection. Id. at 37:1, 53:1318. Baemmert could, however, use his phone to make 911 calls through the cellular system,
even without an internet connection.
TextMe used a credit system in which use of the app’s various functions depleted a
user’s credits. In Baemmert’s case, he received a limited number of credits for free when he
downloaded the app, and he obtained more credits by purchasing them or by watching
advertisements. Baemmert adduces his own declaration to show that TextMe charged him for
any telephone call, whether inbound or outbound. Credit One adduces a contrary declaration
from a TextMe employee, but that declaration is inadmissible because it was not timely
disclosed, so Credit One has not raised a genuine dispute that Baemmert was charged credits
for the calls at issue.
ANALYSIS
The familiar standards govern the parties’ summary judgment motions. A district court
must grant summary judgment when no genuine issue of any material fact exists and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). When the parties cross-move for summary judgment, as
they do here, the court “look[s] to the burden of proof that each party would bear on an issue
of trial” and “require[s] that party to go beyond the pleadings and affirmatively to establish a
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genuine issue of material fact.” Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir.
1997). The court’s role at summary judgment “is not to sift through the evidence, pondering
the nuances and inconsistencies, and decide whom to believe.” D.Z. v. Buell, 796 F.3d 749,
756 (7th Cir. 2015) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)).
The court’s only task is to decide “whether, based on the evidence of record, there is any
material dispute of fact that requires a trial.” Id.
Baemmert asserts two claims against Credit One: a claim under the TCPA’s antirobocall provision, 47 U.S.C. § 227(b)(1)(A)(iii), and an invasion of privacy claim under
Wisconsin law, Wis. Stat. § 995.50(2)(a). Both sides move for summary judgment on both
claims.
A. TCPA claim
The TCPA prohibits using an ATDS to make a non-emergency call to “any telephone
number assigned to a . . . cellular telephone service . . . or any service for which the called party
is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). A defendant may raise affirmative
defenses, such as consent, but Credit One raises none.
The parties raise four issues as to the TCPA claim: (1) whether Credit One or its vendors
called Baemmert; (2) whether Credit One or its vendors used an ATDS; (3) whether the calls
were placed to a number assigned to a cellular telephone service; and (4) whether Baemmert
incurred charges for the calls.
1. Whether Credit One or its vendors called Baemmert using an ATDS
The court will address the first two issues together. Evidence from both sides shows that
at least one of Credit One’s vendors called Baemmert using an ATDS, so no reasonable jury
could find for Credit One on these issues. Although Credit One insists that neither it nor its
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vendors could find any affirmative record of a call made to Baemmert, Credit One’s evidence
fails to raise a genuine dispute of fact.
Baemmert adduces his own testimony that he received many calls from debt collectors
who attempted to collect debt for Credit One. Dkt. 11, ¶¶ 43-44. Screenshots of the call logs
from Baemmert’s cell phone show that Baemmert received calls from 10 numbers that Credit
One concedes belong to its vendors. Dkt. 11-1, at 1-19; Dkt. 12-3, at 7. Baemmert also points
to a certified transcript of an audio recording from February 3, 2016, when he called one of
the collectors back using his home number after having received numerous collection calls on
his cell phone. The transcript of the audio recording shows that a representative answered
Baemmert’s call on behalf of Credit One. Dkt. 18-11, at 2:1-2 (“MALE REPRESENTATIVE:
Thank you for calling Credit One Bank.”), 4:11-13 (“MR. BAEMMERT: What’s the name of
this company I’m calling? MALE REPRESENTATIVE: You’re calling in Credit One Bank.”).
Credit One’s own evidence shows the representative from the audio recording was an
employee of one of Credit One’s vendors, First Contact, LLC. Credit One adduces the
declaration of Brendan Lee, A Senior Vice President of First Contact, who states that he
searched First Contact’s database for audio recordings associated with Baemmert’s home phone
number and found 13 audio recordings. Dkt. 18-7, ¶ 6. Those 13 recordings include the
February 3, 2016 recording discussed above; Credit One played the February 3, 2016 recording
during Baemmert’s deposition and confirmed that the recording was one of the 13 recordings
identified in Lee’s declaration. Dkt. 30 (Baemmert Dep. 66:24-82:11, 151:8-152:18). So
evidence from both sides shows that at least one of Credit One’s vendors called Baemmert on
Credit One’s behalf.
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Baemmert has also shown that First Contact used an ATDS to call him. During the
February 3, 2016 call, a First Contact representative indicated that First Contact called
Baemmert using a “computerized dialing system.” Dkt. 18-11, at 17:21-24. The representative
also indicated that Baemmert’s number was stored in the system. Id. at 20:13-15. This shows
that the debt collectors used an ATDS, which is an equipment that “makes calls from a stored
list without human intervention.” Sterk v. Path, Inc., 46 F. Supp. 3d 813, 819 (N.D. Ill. 2014).
So Baemmert has established that First Contact called him using an ATDS on behalf of Credit
One. No reasonable jury could find for Credit One on these issues.
Credit One insists that neither it nor its vendors could locate any record of calling
Baemmert. Credit One adduces the following: (1) a declaration of Ryan Hunt, a manager at
Credit One, Dkt. 20; (2) its own responses to Baemmert’s interrogatories, sworn to by Gary
Harwood, a vice president of Portfolio Services at Credit One, Dkt. 12-3; (3) a declaration of
Duke Christopher, a vice president of operations at iEnergizer, Holdings, Ltd., one of Credit
One’s vendors, Dkt. 18-6; and (4) the declaration of Brendan Lee of First Contact, Dkt. 18-7,
which is discussed above. But none of this evidence establishes that Credit One’s vendors did
not call Baemmert.
Hunt states that he searched Credit One’s records but found no record of Credit One
calling Baemmert directly. Dkt. 20. Hunt’s declaration does not address Credit One’s vendors,
so it does not raise a genuine dispute of fact whether First Contact or iEngergizer called
Baemmert using an ATDS.
As for the interrogatory answers prepared by Harwood, one of them says, “Defendant
has been advised by its vendors that there is no record of calling [Baemmert’s number] in 2016
on behalf of Credit One.” Dkt. 12-3, at 3. This statement is inadmissible hearsay. A party can
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rely on its own sworn interrogatory response, but the normal rules of evidence apply. See Duff
v. Lobdell-Emery Mfg. Co., 926 F. Supp. 799, 802 (N.D. Ind. 1996); James W. Moore, 11-56
Moore’s Federal Practice § 56.93 (3d ed. 2016) (“If the answers are submitted by the asking
party, they may be admissible as an admission of a party opponent. If they are submitted by
the answering party, there must be some other basis for admissibility.”). What Credit One’s
vendors told Harwood is inadmissible hearsay.
Another Credit One interrogatory response says, “Defendant has no record of hiring
any vendor to dial [Baemmert’s number].” Dkt. 12-3, at 3. This one, too, is inadmissible. The
statement is conclusory. See Bordelon v. Bd. of Educ. of the City of Chicago, 811 F.3d 984, 989 (7th
Cir. 2016) (“Rule 56 demands something more specific than the bald assertion of the general
truth of a particular matter, rather it requires affidavits that cite specific concrete facts
establishing the existence of the truth of the matter asserted.” (quoting Gabrielle M. v. Park
Forest–Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 822 (7th Cir.2003))). And Credit One
fails to lay proper foundation, see Lucas v. Chi. Transit Auth., 367 F.3d 714, 726 (7th Cir. 2004)
(no abuse of discretion for striking an affidavit for lack of foundation). Harwood, who signed
the interrogatory responses, does not explain how he knows that Credit One did not hire any
vendor to dial Baemmert’s number. And, of course, it’s not surprising that Credit One did not
hire anyone to call Baemmert’s number. He never had a Credit One card, so he was apparently
called in error by the vendors.
The declarations from Christopher and Lee have similar problems. Christopher’s
declaration says, “iEnergizer has searched for Plaintiff’s cellular phone number in its call history
database and Plaintiff’s number does not appear in the database.” Dkt. 18-6, ¶ 10. Lee’s
declaration says, “I had a search performed for the Plaintiff’s telephone number . . . in First
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Contact’s call records and determined that First Contact does not have any record of making
calls to the telephone number . . . .” Dkt. 18-7, ¶ 5. These statements, too, are conclusory and
fail to establish that the declarant has a foundation of personal knowledge. See Bordelon, 811
F.3d at 989; Lucas, 367 F.3d at 726. Christopher’s declaration also states that iEnergizer asked
its vendor to search for Baemmert’s phone number, and according to Christopher, the vendor
reported that Baemmert’s “number could not be found in its records.” Dkt. 18-6, ¶ 10. What
iEnergizer’s vendor reported is again inadmissible hearsay. Without a full explanation of the
vendors’ record-keeping systems and a demonstrated diligent search of those records, this
evidence does not raise a genuine dispute of fact, particularly because Baemmert has
documentary evidence that he did receive the calls.
Credit One contends that Baemmert did not allege agency theory or vicarious liability
in the complaint so the court should disregard Baemmert’s theory that Credit One’s vendors
called Baemmert. But plaintiffs need not “plead specific legal theories” in their complaints.
Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir. 2015). And “[c]alls placed by a third
party collector on behalf of that creditor are treated as if the creditor itself placed the call.” See
In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 565
(2007). So Baemmert’s failure to plead an agency theory or vicarious liability in his complaint
is no basis for summary judgment.
Whether First Contact called Baemmert on behalf of Credit One and whether First
Contact did so using an ATDS are not genuinely disputed.
2. A number assigned to a cellular telephone service
It is not enough for Baemmert to show that he received unconsented ATDS calls. Under
the TCPA, he must also show either (a) that the call was made to a number “assigned to a . . .
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cellular telephone service,” or (b) that he incurred a charge for the call. 47 U.S.C.
§ 227(b)(1)(A)(iii); see Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999, 1009
(N.D. Ill. 2010). He does not have to show both.
The underlying facts are not disputed, and the court concludes that Baemmert’s number
was not assigned to a cellular telephone service. Baemmert testified that the phone number he
used was a number assigned to his TextMe account when he downloaded the app on his
smartphone. Dkt. 30 (Baemmert Dep. 36:16-18). When he downloaded the app and when he
received the collection calls, his smartphone had no cellular service because Cellular One had
disconnected his service for his failure to pay outstanding bills. See id. at 40:11-14 (“[Q] So
was Cellular One cutting off service the reason why you then went to the TextMe app so you
could have functionality of the phone? A Yes.”). Baemmert could make 911 calls, but by rule
cellular service providers must relay all 911 calls—even from phones with no cellular service—
to emergency dispatchers. See 47 C.F.R. § 20.18. So Baemmert’s ability to make 911 calls does
not show that he had cellular service. Baemmert’s smartphone was a device capable of receiving
cellular service, but the calls were not made to a number assigned to a cellular service.
Baemmert contends that TextMe itself is a cellular telephone service in a notice of
supplemental authority. Dkt. 39, at 1-2. The supplemental authority is not new: it is a footnote
in a 2015 FCC order. Because Baemmert could have raised this argument in his summary
judgment briefs but failed to do so, the argument is waived. Besides, Baemmert’s authority is
dubious: the footnote has nothing to do with VoIP. See In re Rules & Regulations Implementing
the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7988 n.174 (2015). Indeed, no court,
as far as this court is aware, has held that a VoIP service constitutes a cellular telephone service,
and Baemmert cites no authority other than the FCC footnote. Baemmert adduces no evidence
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that TextMe actually uses any cellular technology. The court concludes that the calls at issue
were not made to a number assigned to a cellular service.
3. Charges for the collection calls
As an alternative, Baemmert contends that the service he received from TextMe was a
“service for which the called party is charged for the call” under 47 U.S.C. § 227(b)(1)(A)(iii).
The Seventh Circuit has not decided whether this call-charged provision applies to VoIP apps,
and the text of the TCPA (enacted in 1991 before the development of VoIP technology) does
not address the issue. But several courts outside the Seventh Circuit have weighed in,
concluding that the call-charged provision applies to VoIP apps. “Except where there is no
evidence that the called party was charged for the call, courts generally” recognize that, when
a plaintiff pays for services on a per-call basis, like paying for minutes on a cell phone, the
plaintiff has a viable claim under 47 U.S.C. § 227(b)(1)(A)(iii). See Jones v. Experian Info. Sols.,
No. 14-cv-10218, 2016 WL 3945094, at *7 (D. Mass. July 19, 2016) (collecting cases).1 This
court agrees. If a VoIP service charges on a per-call basis, that service falls under the broad
statutory language, “any service for which the called party is charged for the call.” 47 U.S.C.
§ 227(b)(1)(A)(iii). So Baemmert can prevail by showing that he incurred charges for the
collection calls.
1
Accord Klein v. Commerce Energy, Inc., No. 14-cv-1050, 2017 WL 2672290, at *12 (W.D. Pa.
June 21, 2017) (“The court does not disagree that a call charge on the ‘front end’ might qualify
for purposes of the charged call provision under the TCPA.”). One court has held that when a
VoIP app requires a flat, monthly fee without incurring charges for each call, that VoIP service
is not “service for which the called party is charged for the call.” Karle v. Sw. Credit Sys., No.
14-cv-30058, 2015 WL 5025449, at *6 (D. Mass. June 22, 2015). But that case is inapplicable
here because TextMe did not charge a flat fee; the account holders used their credits on a peruse basis.
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The court is not persuaded by Baemmert’s argument that any unwanted call imposes a
cost. Baemmert argues that “[e]very call uses some of the phone owner’s time and mental
energy, both of which are precious,” quoting Patriotic Veterans, Inc. v. Zoeller, 845 F.3d 303,
305-06 (7th Cir. 2017). Dkt. 13, at 7. The question in Patriotic Veterans was whether Indiana’s
anti-robocall statute, Ind. Code § 24–5–14–5, violated the First Amendment to the
Constitution. The case had nothing to do with the TCPA. Baemmert’s argument, if adopted,
would essentially read the requirements of § 227(b)(1)(A)(iii) out of the TCPA.
But the court is persuaded by Baemmert’s argument based on the actual operation of
the TextMe app, because he adduces evidence that he actually incurred charges for the
collection calls. Baemmert testified during his deposition that TextMe gave him only a limited
amount of credits when he downloaded the app and that he had to pay money to get more
credits. Dkt. 30 (Baemmert Dep. 43:8-25, 154:4-5, 160:11-161:22). He testified that he had
to pay for the credits he spent on the phone calls he received from Credit One’s vendors. Id. at
161:19-22 (“Q And did you have to use any of those paid credits to make or receive the phone
calls that you had with Credit One? A Yes.”). He also testified that he incurred charges for
inbound calls in 2015 and 2016. Id. at 150:8-23, 170:1-4; see also Dkt. 11, ¶ 68. So Baemmert
has presented admissible evidence to show that he incurred charges for the collection calls made
for Credit One.
Credit One tries to dispute this fact, but its evidence does not raise a genuine dispute.
Credit One points to an FCC order where the FCC noted that TextMe “users may also receive
calls from any telephone number and place calls within the United States without charge.” In
re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 2015
WL 4387780, ¶ 36 (2015). Credit One does not explain how facts recited in an FCC order
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would be admissible in this case. They are not: “[A] court may not take judicial notice of
proceedings or records in another case so as to supply, without formal introduction of evidence,
facts essential to support a contention in a case then before it.” Physicians Healthsource, Inc. v.
Allscripts Health Sols., Inc., No. 12-cv-3233, 2017 WL 1093163, at *3 (N.D. Ill. Mar. 23, 2017)
(citations omitted). And the FCC order is dated July 10, 2015, so it does not establish that the
calls Baemmert received in January and February 2016 incurred no charge. See Happel v. WalMart Stores, Inc., No. 02-cv-7771, 2007 WL 495277, at *3 (N.D. Ill. Feb. 9, 2007), aff’d in part
sub nom., 602 F.3d 820 (7th Cir. 2010) (denying motion to take judicial notice of past financial
information noted in a FCC order because past information is irrelevant).
Credit One also adduces the declaration of Amy Hernandez, the CFO of TextMe, who
states that TextMe did not charge for inbound calls in 2015 and 2016. Dkt. 19, ¶¶ 3, 6.
Hernandez’s declaration would raise a genuine dispute, but Credit One disclosed it too late.
Credit One did not disclose Hernandez as a witness in its initial Rule 26 disclosures, and it did
not update those disclosures. Credit One presented her declaration for the first time after
Baemmert moved for summary judgment. See Dkt. 19 and Dkt. 30 (Baemmert Dep. 172:19173:2). So Credit One’s disclosure of Hernandez’s declaration was untimely under Rules
26(a)(1)(A)(i) and (e)(1)(A). Under Rule 37(c)(1), the sanction of exclusion for violating Rule
26 is “automatic and mandatory . . . unless [the] non-disclosure was justified or harmless.”
Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004). Credit One has no
explanation for the untimely disclosure of the Hernandez declaration, and it is certainly not
harmless because the untimely disclosure deprived Baemmert of the opportunity to impeach
this evidence before summary judgment. The court will not consider the Hernandez declaration
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at summary judgment. Credit One thus has no admissible evidence to raise a genuine dispute
that Baemmert incurred charges for the calls made on behalf of Credit One.
In sum, Baemmert has established the facts necessary to establish Credit One’s liability
under the TCPA.
4. Damages for TCPA claim
Baemmert also moves for summary judgment on the issue of damages for his TCPA
claim.
Under the TCPA, a plaintiff may recover either his actual monetary loss or $500 for
each violation, whichever is greater. 47 U.S.C. § 227(b)(3)(B). If the court finds that the
defendant’s violation was willful or knowing, “the court may, in its discretion, increase the
amount of the award to an amount equal to [but] not more than 3 times” the amount.
§ 227(b)(3). Baemmert does not contend that he suffered any actual damages; he pursues the
statutory amount of $500 for each call. He also contends that Credit One willfully and
knowingly violated the TCPA, making the proposed total $1,500 per call.
The number of calls that violated the TCPA will be determined at trial. Baemmert
contends that he received at least 63 collection calls on behalf of Credit One. Baemmert
adduces screenshots from his cell phone showing his call log, and that call log shows calls
Baemmert received from 12 different numbers. Dkt. 11-1, at 1-19. Credit One concedes in an
interrogatory answer that, out of those 12 numbers, nine belonged to First Contact and one
belonged to iEnergizer. Dkt. 12-3, at 7. Baemmert does not contend that the other two
numbers are associated with Credit One or its vendors, so Baemmert’s claims are limited to
collection calls that came from these 10 numbers. First Contact’s nine numbers account for 61
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calls shown on the call log; iEnergizer’s number accounts for 3 calls. Dkt. 11-1. So the total
number of unconsented collection calls is 64.
But Baemmert has not shown that Credit One’s vendors used an ATDS for all 64 calls.
Baemmert’s affidavit says, “Upon answering some of Defendant’s calls, I would say ‘hello’ and
there would be a noticeable period of dead air with no live person on the other end of the call.”
Dkt. 11, ¶ 58 (emphasis added). The transcript of the February 3, 2016 audio recording, which
shows Baemmert’s conversation with First Contact, says, “MR. BAEMMERT: Why are you
calling from different area codes too? Explain that. FEMALE REPRESENTATIVE: That’s a
computerized dialing system.” Dkt. Dkt. 18-11, at 17:21-24. And a First Contact
representative indicated that Baemmert’s number was stored in the system. Id. at 20:13-15.
These materials can show that First Contact placed at least some calls using an ATDS, but it
falls short of establishing that First Contact used an ATDS for every one of the collection calls.
As for the three collection from iEnergizer, Baemmert has not established that any call placed
by iEnergizer was through an ATDS.
Baemmert contends that Credit One and its vendors have used ATDSs to make
collection calls in the past. He points to a deposition transcript from another case involving
Credit One, Dkt. 33, ¶ 15, where Harwood, a vice president of Portfolio Services at Credit
One, testified that Credit One had employed vendors who used ATDSs to collect debt.
Baemmert also points to another court’s opinion noting that Credit One requires its customers
to sign an agreement allowing Credit One and its vendors to use ATDSs for collection calls.
A.D. v. Credit One Bank, N.A., No. 14-cv-10106, 2016 WL 4417077, at *1 (N.D. Ill. Aug. 19,
2016). The Harwood deposition is admissible, but the court will not take judicial notice of the
facts in the district court opinion. In any case, this evidence shows only that Credit One
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employs vendors who use ATDSs. It does not establish beyond dispute that Credit One’s
vendors used an ATDS every time they called Baemmert.
Credit One does not respond to Baemmert’s argument that Credit One’s violations of
the TCPA were willful and knowing. The court will deem the point to have been conceded.
Credit One was aware of its obligations under the TCPA, as it has been sued over a dozen times
in the past for TCPA violations. The initial calls might have been made in error, but Baemmert
repeatedly informed the collectors to stop calling, and yet the calls continued. Because the
violations were willful and knowing, the court has the discretion to increase the damages up to
$1,500 per call. The court will exercise its discretion and set a damages amount after trial.
In sum, Baemmert is not entitled to summary judgment on the amount of damages for
his TCPA claim. The number of calls that violated the TCPA will be determined at trial. The
violations were willful and knowing. The court will determine whether to enhance damages,
and how much, after trial.
B. Invasion of privacy claim
The parties also move for summary judgment on Baemmert’s invasion of privacy claim.
Wisconsin law prohibits “[i]ntrusion upon the privacy of another of a nature highly offensive
to a reasonable person, in a place that a reasonable person would consider private or in a
manner which is actionable for trespass.” Wis. Stat. § 995.50(2)(a). The parties dispute
whether the collection calls were “highly offensive to a reasonable person” and whether
Baemmert received collection calls at a private place.
Neither side raises this issue, but a threshold question here is whether unwanted phone
calls would constitute an invasion of privacy under § 995.50. The Wisconsin Court of Appeals
has rejected an invasion of privacy claim based on phone calls. In Keller v. Patterson, a neighbor
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of a sex offender had distributed flyers about the sex offender, which in turn prompted other
individuals to call the sex offender’s home. 2012 WI App 78, ¶ 10, 343 Wis. 2d 569. When
the sex offender’s brother and parents sued the neighbor, the Court of Appeals rejected their
invasion of privacy claim. The court explained, “The Kellers argue that the hang-up calls,
letters, and cars honking their horns in front of their house amounted to an invasion of their
home. We disagree. There was no physical intrusion of the Kellers’ home by Patterson or even
at Patterson’s direction.” Id. The court also rejected plaintiffs’ argument that phone calls were
recognized as an invasion of privacy under the Restatement of Torts. Id.; see also Restatement
(Second) of Torts § 652B cmt. b (1977). The bottom line is that the Wisconsin Court of
Appeals has held that unwanted phone calls do not constitute an invasion of privacy under
Wisconsin’s statute.
Baemmert relies exclusively on federal cases, and at least one federal court within this
Circuit apparently assumed that unwanted phone calls could support an invasion of privacy
claim. But no federal court has squarely decided the question. The court is not aware of any
decision by a Wisconsin court contrary to Keller’s holding that unwanted phone calls do not
support a claim under § 995.50. A federal court cannot disagree with a state court on an issue
of state law. Barger v. State of Ind., 991 F.2d 394, 396 (7th Cir. 1993) (“State courts are the
final arbiters of state law.”); Foxworthy v. Buetow, 492 F. Supp. 2d 974, 987 (S.D. Ind. 2007)
(“When considering pendent state claims, the Court is bound by the law as described by the
state courts.”). Whether unwanted phone calls could constitute an invasion of privacy is not
an issue raised by Credit One. (Credit One argued that phone calls placed to a TextMe number
do not make out an invasion of privacy claim because TextMe is not a private place, but that
is a different question.)
16
When a court contemplates granting summary judgment on an issue not raised by the
parties, the court should give the adverse party notice and reasonable opportunity to respond
under Rule 56(f). Hotel 71 Mezz Lender LLC v. Nat’l Ret. Fund, 778 F.3d 593, 603 (7th Cir.
2015); Lynch v. Ne. Reg’l Commuter R.R. Corp., 700 F.3d 906, 910-11 (7th Cir. 2012). The issue
here is purely legal question; it does not require any factual development. Accordingly, the
court will give Baemmert one week to address the issue whether Wisconsin law would recognize
an invasion of privacy claim based on unwanted phone calls.
CONCLUSION
The court will grant summary judgment to Baemmert that Credit One has willfully and
knowingly violated the TCPA. The number of calls that violate the TCPA will be determined
at trial. And after trial, the court will exercise its discretion to determine enhanced damages, if
any.
Baemmert has one week to explain why the court should not grant summary judgment
on his invasion of privacy claim.
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ORDER
IT IS ORDERED that:
1. Plaintiff John Baemmert’s motion for summary judgment, Dkt. 9, is GRANTED in
part and DENIED in part.
2. The court’s decision on defendant Credit One Bank, N.A.’s motion for summary
judgment, Dkt. 15, is DEFERRED.
3. Plaintiff must explain by one week from the date of this order why the court should
not grant summary judgment in favor of defendant under Federal Rule of Civil
Procedure 56(f).
Entered September 25, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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