Summary
outlining the standard of review for report and recommendations (citing Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006) (per curiam))
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CIVIL ACTION FILE NO. 1:18-cv-4356-TCB
2020-02-24
Anthony MERCHANT, Plaintiff, v. NATIONWIDE RECOVERY SERVICE, INC., Defendant.
ORDER
This case comes before the Court on Magistrate Judge J. Clay Fuller's final report and recommendation (the "R&R") [23], which recommends that Defendant Nationwide Recovery Service, Inc.'s motion [17] for summary judgment be granted. Plaintiff Anthony Merchant has filed objections [25].
I. Legal Standard
A. Review of an R&R
A district judge has a duty to conduct a "careful and complete" review of a magistrate judge's R&R. Williams v. Wainwright , 681 F.2d 732, 732 (11th Cir. 1982) (per curiam) (quoting Nettles v. Wainwright , 677 F.2d 404, 408 (5th Cir. Unit B 1982) ). This review may take different forms, however, depending on whether there are objections to the R&R. The district judge must "make a de novo determination of those portions of the [R&R] to which objection is made." 28 U.S.C. § 636(b)(1)(C). In contrast, those portions of the R&R to which no objection is made need only be reviewed for "clear error." Macort v. Prem, Inc. , 208 F. App'x 781, 784 (11th Cir. 2006) (per curiam) (quoting Diamond v. Colonial Life & Accident Ins. , 416 F.3d 310, 315 (4th Cir. 2005) ). "Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles , 677 F.2d at 410 n.8. "This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act." Id. at 410.
Macort dealt only with the standard of review to be applied to a magistrate's factual findings, but the Supreme Court has indicated that there is no reason for the district court to apply a different standard to a magistrate's legal conclusions. Thomas v. Arn , 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Thus, district courts in this circuit have routinely reviewed both legal and factual conclusions for clear error. See Tauber v. Barnhart , 438 F. Supp. 2d 1366, 1373–74 (N.D. Ga. 2006) (collecting cases). This is to be contrasted with the standard of review on appeal, which distinguishes between the two. See Monroe v. Thigpen , 932 F.2d 1437, 1440 (11th Cir. 1991) (holding that when a magistrate's findings of fact are adopted by the district court without objection, they are reviewed on appeal under a "plain error standard" while questions of law always remain subject to de novo review).
After conducting a complete and careful review of the R&R, the district judge "may accept, reject, or modify" the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1)(C) ; Williams , 681 F.2d at 732. The district judge "may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C).
B. Motion for Summary Judgment
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). There is a "genuine" dispute as to a material fact if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." FindWhat Investor Grp. v. FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). In making this determination, however, "a court may not weigh conflicting evidence or make credibility determinations of its own." Id. Instead, the court must "view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor." Id.
"The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact." Id. (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the nonmoving party would have the burden of proof at trial, there are two ways for the moving party to satisfy this initial burden. United States v. Four Parcels of Real Prop. , 941 F.2d 1428, 1437–38 (11th Cir. 1991). The first is to produce "affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." Id. at 1438 (citing Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ). The second is to show that "there is an absence of evidence to support the nonmoving party's case." Id. (quoting Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ).
If the moving party satisfies its burden by either method, the burden shifts to the nonmoving party to show that a genuine issue remains for trial. Id. At this point, the nonmoving party must " ‘go beyond the pleadings,’ and by its own affidavits, or by ‘depositions, answers to interrogatories, and admissions on file,’ designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc. , 64 F.3d 590, 593–94 (11th Cir. 1995) (quoting Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ).
II. Background
The Court provides a summary of the facts but incorporates by reference the fact summary in the R&R.
Nationwide is a debt collector. In spring 2017, an outstanding medical bill to be paid by Merchant was assigned to Nationwide for collection.
During the eight-month period between March 10 and October 5, 2017, Nationwide made eight attempts to speak over the phone with Merchant in order to collect the debt, and successfully spoke with him on four occasions. Each call was made between 11:00 a.m. and 7:00 p.m.
In his deposition, Merchant testified that he received calls approximately once every two weeks, rather than once a month, which would total approximately sixteen calls rather than eight. However, in response to Nationwide's statement of material facts, in which it contended that it called him eight times and spoke with him four times, he merely "denies that [Nationwide] called only eight times, or that [he] only spoke with [a representative] four times." [20] at 1.
This response plainly violates LR 56.1(B), which provides that when a movant for summary judgment files a statement of material facts, those facts are deemed admitted unless the respondent (1) "directly refutes the movant's fact with concise responses supported by specific citations to evidence"; (2) "states a valid objection to the admissibility of the movant's fact"; (3) correctly points out that the movant's record cite does not support the fact; or (4) properly asserts that the fact is immaterial. LR 56.1(B)(2)(a)(2), NDGa. Compliance with this rule is "the only permissible way for [a respondent] to establish a genuine issue of material fact" at the summary judgment stage. Reese v. Herbert , 527 F.3d 1253, 1268 (11th Cir. 2008). Accordingly, the stated number of calls is considered undisputed. See Fed. R. Civ. P. 56(c)(1), (e)(2) ; LR 56.1(B)(2)(a)(2), NDGa.
Moreover, even if Nationwide had called Merchant sixteen times rather than eight, this marginally higher number of calls is far less than the number of calls other courts have found to give rise to harassment under the FDCPA. See Meadows v. Franklin Collection Serv., Inc. , 414 F. App'x 230, 233–34 (11th Cir. 2011) (per curiam) (finding a genuine dispute regarding the defendant's intent to harass where plaintiff received approximately 300 calls over a two-and-a-half month period, sometimes as many as three times a day).
In his deposition, Merchant testified that he received one call before 10:00 a.m. In response to Nationwide's statement of material facts, however, he admits that the calls were all made between 11:00 a.m. and 7:00 p.m. Accordingly, there is no genuine issue of material fact as to the time of the calls.
The telephone calls in which Nationwide successfully spoke with Merchant occurred on April 26, August 18, September 19, and October 5. Each of these phone calls was recorded, per Nationwide policy regarding phone calls to debtors.
Nationwide argues that Merchant never asked its representatives to stop calling him. Merchant does not dispute what was said during the calls, but argues that what he said during the calls was sufficient to communicate to Nationwide that the calls were unwanted.
In the first call, Merchant learned that he was speaking to a Nationwide representative and stated that he was at work before hanging up. In the second call, he told the representative that he could not pay and directed the representative to call the Department of Veterans' Affairs for payment. When the representative told him that it could not stop collection efforts to await payment from the VA, he responded "Yeah, that's fine." [17] at Exh. D. In the third call, he told a representative that he would converse only with the business to which he owed the debt, not a collection agency. Then he hung up. Finally, in the fourth call, he said that he did not accept calls from collection agencies and hung up.
On October 9, counsel for Merchant sent a letter to Nationwide requesting that it no longer contact him regarding the debt. Nationwide complied with this request.
On September 17, 2018, Merchant filed this suit, seeking relief pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. He argues that Nationwide violated §§ 1692d and 1692d(5) of the FDCPA when it repeatedly called him to collect the debt, despite his repeated requests that the calls cease. III. Discussion
The R&R notes that there is no question that Merchant was the subject of Nationwide's debt collection activity. Nevertheless, the R&R concludes that Nationwide did not violate §§ 1692d or 1692d(5). For the reasons enumerated below, the Court agrees.
Section 1692d of the FDCPA prohibits a debt collector from "engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. " ‘[A]ctionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls.’ " Brown v. Credit Mgmt. , 131 F. Supp. 3d 1322, 1340 (N.D. Ga. 2015) (quoting Brandt v. I.C. Sys., Inc. , No. 8:09-cv-126, 2010 WL 582051, at *2 (M.D. Fla. Feb. 19, 2010) (citations omitted)).
Furthermore, "[i]t is not enough that a debt collector's actions caused the consumer ‘embarrassment, inconvenience, and further expense,’ but rather those actions must ‘manifest a tone of intimidation.’ " Middlebrooks v. Sacor Fin., Inc. , 775 F. App'x 594, 597 (11th Cir. 2019) (quoting Miljkovic v. Shafritz & Dinkin, P.A. , 791 F.3d 1291, 1305 (11th Cir. 2015) ).
Under § 1692d(5), a debt collector violates the FDCPA if it "caus[es] a telephone to ring or engag[es] any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." 15 U.S.C. § 1692d(5). Thus, while the FDCPA is generally a strict liability statute, "Congress took care to require an element of knowledge or intent" in § 1692d(5). Clark v. Capital Credit & Collection Servs., Inc. , 460 F.3d 1162, 1176 (9th Cir. 2006) (internal quotations and citation omitted).
"[I]ntent may be inferred by evidence that the debt collector continued to call the debtor after the debtor had asked not to be called and had repeatedly refused to pay the alleged debt, or during a time of day which the debtor had informed the debt collector was inconvenient." Brown v. Credit Management, LP , 131 F. Supp. 3d 1332, 1340 (N.D. Ga. 2015) (quoting Brandt , 2010 WL 582051 at *2 ).
Merchant contends that the evidence shows that Nationwide intended to harass him because it continued to contact him even after he told its representatives that the VA was responsible for the bill; told its representatives that he would not speak with a collection agency; and hung up the telephone.
However, the Court, like the magistrate judge, is unpersuaded that any one of these communications constitutes a request to cease calling of the type that triggers liability under the FDCPA. See Druschel v. CBB Credit Servs., Inc. , No. 8:10-cv-838-T-33TBM, 2011 WL 2681637, at *5 (M.D. Fla. June 14, 2011) (finding that the plaintiff did not request that the defendant stop calling him when he explained to the defendant's representative that his financial situation and disabled status prevented him from making the payment because "even if Plaintiff's circumstances left him more susceptible to harassment or annoyance than the typical consumer, ... the conduct of Defendant in this instance is not of the type conduct precluded by the FDCPA").
Such a finding is consistent with the purpose of the FDCPA, which "was passed in response to ‘[collection abuse [in the form of] obscene or profane language, threats of violence, telephone calls at unreasonable hours, misrepresentation of a consumer's legal rights, disclosing a consumer's personal affairs to friends, neighbors, or an employer,’ and other threatening and intimidating tactics." Isaac v. RMB, Inc. , No. 2:12-cv-2030-TMP, 2014 WL 1278096, at *7 (N.D. Ala. Mar. 27, 2014) (citing S. REP. No. 95–382, at 5 (1977)).
Moreover, even if Merchant did in fact request that the calls cease, this alone would not automatically indicate that Nationwide intended to harass him. Instead, courts examining FDCPA claims consider the totality of the circumstances surrounding the call. See Reddin v. Rash Curtis & Assocs. , No. 2:15-01305 WBS CKD, 2016 WL 3743148, at *4 (E.D. Cal. July 13, 2016) (finding that there was some evidence "weighing slightly in favor of plaintiff's claim" because she had instructed the defendant not to call her again, but concluding based on the number of calls and the nature of the communications that summary judgment was owed as to both §§ 1692d and 1692d(5) ); see also Carman v. CBE Grp., Inc. , 782 F. Supp. 2d 1223, 1232 (D. Kan. 2011) (noting that a genuine issue of material fact requires consideration of whether there was a high call volume and other indicia of "egregious conduct"); Katz v. Capital One , No. 1:09CV1059(LMB/TRJ), 2010 WL 1039850, at *3 (E.D. Va. Mar. 18, 2010) (granting summary judgment to defendant who contacted plaintiff 15 times after plaintiff's attorney contacted defendant to dispute the debt and instructed the defendant not to contact the plaintiff, because "[w]ithout any indicia of an unacceptable pattern of calls, this does not constitute harassment").
Here, the Court finds based on the totality of the circumstances that no reasonable jury could find that Nationwide's intent was to harass, oppress, or abuse Merchant. It contacted him, on average, once a month about a debt that he admitted that he owed. It did not call him in the middle of the night, contact his relatives, or use profane language to threaten him. Instead, Merchant admits that he confirmed to Nationwide that he owed the debt, its representatives called him only a few times over a period of months, and when a representative told him that the calls would continue even if the VA was ultimately going to pay the debt, he said "Yea, that's fine...." [17] at D.
This is not a case where the plaintiff received approximately 300 calls over a two-and-a-half-month period (sometimes three times a day) from an automated dialer regarding debts she did not owe, even after she informed the collection agency that she did not live with or know the debtors. See Meadows , 414 F. App'x at 233–34. Nor is this a case in which the debt collector immediately called the plaintiff back five times in a row after the plaintiff hung up on the collector, see Chiverton v. Fed. Fin. Grp., Inc. , 399 F. Supp. 2d 96, 100 (D. Conn. 2005), or where the debt collector "was intimidating or threatening in her phone communications," Fox v. Citicorp Credit Servs., Inc. , 15 F.3d 1507, 1516 (9th Cir. 1994).
Accordingly, the Court agrees with the conclusion of the magistrate judge that Nationwide did not violate § 1692d(5) because the evidence does not demonstrate an intent to harass. For the same reasons, no reasonable jury could find that the "natural consequence" of Nationwide's calls were to harass, oppress, or abuse Merchant, as required for an FDCPA claim based solely on § 1692d.
IV. Conclusion
For the foregoing reasons, the Court agrees with the findings of the R&R [23] and concludes that, because no reasonable jury could find that Nationwide's calls constituted harassment or abuse or were intended to do so, summary judgment is appropriate as to both claims. Accordingly, the Court adopts as its Order the R&R [23] and overrules Merchant's objections [25]. The motion [17] for summary judgment is granted, and the Clerk is directed to close this case.
IT IS SO ORDERED this 24th day of February, 2020.
FINAL REPORT AND RECOMMENDATION
J. Clay Fuller, United States Magistrate Judge
This case is before the Court on the Defendant's Motion for Summary Judgment. (Doc. 17). For the reasons discussed below, it is RECOMMENDED that Defendant's motion be GRANTED .
PROCEDURAL BACKGROUND
On September 17, 2018, Anthony Merchant ("Plaintiff") filed a complaint alleging that Nationwide Recovery Service, Inc. ("Defendant") violated the Fair Debt Collection Practices Act ("FDCPA") by "call[ing] Plaintiff repeatedly" to collect a consumer debt despite "knowing that its calls were unwanted." (Doc. 1 ¶ 22). Defendant filed an answer on October 16, 2018. (Doc. 5). Discovery commenced thirty days later and ended on March 15, 2019. (Doc. 9 at 2). On May 14, 2019, Defendant filed a motion for summary judgment (Doc. 17) along with a supporting brief (Doc. 17-1), an affidavit (Doc. 17-2), one deposition (Doc. 17-3), four recordings (Docs. 17-4 through 17-7), and a statement of material facts (Doc. 17-8). On June 4, 2019, Plaintiff filed a response to Defendant's motion (Doc. 19) and a response to Defendant's statement of material facts. (Doc. 20). On June 19, 2019, Plaintiff filed a reply to Plaintiff's response. (Doc. 21). With briefing on this motion complete, the undersigned now considers its merits.
FACTUAL BACKGROUND
The facts, for summary judgment purposes only, are derived from Defendant's Statement of Undisputed Material Facts (Doc. 17-8 ("Def. SMF")), Plaintiff's Responses to Defendant's Statement of Undisputed Facts (Doc. 20), and uncontroverted record evidence. The undersigned has reviewed the record, including the parties' filings, to determine whether genuine issues of material fact exist to be tried. Yet the court need not "scour the record" to make that determination. Tomasini v. Mt. Sinai Med. Ctr. Of Fla. , 315 F. Supp. 2d. 1252, 1260 n.11 (S.D. Fla. 2004) (internal quotation omitted). In ruling on the parties' respective summary judgment motions, the facts are construed in the light most favorable to the non-movant. See Frederick v. Sprint/United Mgmt. Co. , 246 F.3d 1305, 1309 (11th Cir. 2001).
I. Plaintiff's Debt
Defendant is a "debt collector" as that term is defined in 15 U.S.C. § 1692a(6). (Doc. 1 ¶ 8; Doc. 5 ¶ 8). From March 10, 2017 through October 5, 2017, Defendant attempted to collect a debt from Plaintiff. (Def. SMF ¶ 4; Doc. 17-2 ("Hines Aff.") ¶ 8; Doc. 20 ¶ 4). Defendant does not own the debt in question (Def. SMF ¶ 1; Hines Aff. ¶ 5; Doc. 20 ¶ 1), but was attempting to collect the debt on behalf of its client, Lawrenceville Family Practice. (Def. SMF ¶ 2; Hines Aff. ¶ 6; Doc. 20 ¶ 2).
II. Defendant's Telephone Calls to Plaintiff
From March 10, 2017 through October 5, 2017, Defendant asserts that it made eight attempts to speak over the phone with Plaintiff regarding the debt. (Def. SMF ¶ 4; Hines Aff. ¶ 8). Defendant spoke with Plaintiff on four of those occasions. (Def. SMF ¶ 4; Hines Aff. ¶ 8). Plaintiff denies that Defendant called him only eight times and spoke with him only four times during that time frame. (Doc. 20 ¶ 4). Plaintiff cites no evidence to support that denial. Therefore, the Court may consider Defendant's stated number of calls undisputed. FED. R. CIV. P. 56(c)(1), (e)(2) ; LR 56.1(B)(2)(a)(2), NDGa. Furthermore, it is undisputed that Defendant keeps records of all telephone calls placed to debtors and keeps recordings of all telephone conversations. (Def. SMF ¶ 3; Hines Aff. ¶ 7). Since Defendant's records indicate it only called Plaintiff eight times, and it is undisputed that Defendant keeps records of all phone calls it makes to debtors, the Court concludes that Defendant only made eight calls to Defendant during the relevant time period.
The Court notes Plaintiff's deposition testimony that he believed he received about one call every two weeks over the course of several months from Defendant. (Doc. 17-3 (Pl. Depo. at 16). However, Plaintiff does not assert that estimate anywhere in his response to Defendant's SMF or his Statement of Material Facts. (See Docs. 19, 20). Therefore, that testimony does not create an issue of fact on the number of calls made to Plaintiff.
Plaintiff denies this statement, basing his denial on a lack of sufficient information to admit or deny. (Doc. 20 ¶ 3). That is an improper basis upon which to deny a fact at the summary judgment stage. LR 56.1(B)(2)(a)(4), NDGa. Therefore, this fact is admitted. LR 56.1(B)(2)(a)(2), NDGa.
Defendant's records show that every call it made to Plaintiff was between 11:00 a.m. and 7:00 p.m. (Def. SMF ¶ 5; Hines Aff. ¶ 9). Plaintiff denies this statement as an attempt to "characterize" Defendant's records, but cites no evidence to support his denial. (Doc. 20 ¶ 5). Therefore, the Court considers this fact undisputed. Fed. R. Civ. P. 56(c)(1), (e)(2) ; LR 56.1(B)(2)(a)(2), NDGa.
The Court notes Plaintiff's deposition testimony stating that he received at least one call before 10:00 a.m. (Pl. Depo. at 17). For reasons explained below, it is immaterial that Defendant called Plaintiff before 10:00 a.m.
Defendant tried unsuccessfully to speak over the phone with Plaintiff on March 10, 2017, March 21, 2017, June 28, 2017, and July 21, 2017. (Hines Aff. ¶ 12). Defendant's representatives had telephone conversations with Plaintiff on April 26, 2017, August 18, 2017, September 19, 2017, and October 5, 2017. (Id. ¶ 13). Defendant submitted recordings of each of those conversations. (Def. Exhibits C-F).
Defendant did not list these dates in its statement of material facts. However, Plaintiff did not deny the accuracy of these dates when presented with them during his deposition (Pl. Depo. at 27) or anywhere else in his filings. Therefore, the Court will accept these dates as accurate for purposes of this motion.
Defendant did not list these dates in its statement of material facts. However, in his deposition, Plaintiff did not deny that he talked to Defendant on these dates. (Pl. Depo. at 23-26). Additionally, in his response to Defendant's SMF, Plaintiff acknowledges these dates without denying their accuracy. (Doc. 20 ¶ 10). Therefore, the Court will accept these dates as accurate for purposes of this motion.
Defendant asserts that Plaintiff never orally requested Defendant cease calling him in the four recorded conversations. (Def. SMF ¶¶ 10, 13). Plaintiff testified that he did ask Defendant to stop calling him during at least one of those conversations. (Doc. 20 ¶¶ 10, 12, 13; Pl. Depo. at 20, 32-33). During the first recorded phone conversation between Defendant and Plaintiff, on April 26, 2017, after learning that he was speaking to Defendant's representative, Plaintiff stated that he was at work and immediately ended the call. (Def. Exhibit C). Plaintiff did not ask Defendant to cease calling him during that conversation. (Id. ). During the second conversation, on August 18, 2017, Plaintiff told Defendant that he was in the process of attempting to have the Veterans Administration (the "VA") pay the debt. (Def. Exhibit D). Defendant's representative informed Plaintiff she could not stop further collection efforts until the VA paid, to which Plaintiff responded, "Yea, that's fine." (Id. ). Plaintiff also stated during this call that he could not pay the debt himself, and the only way Defendant would get paid would be through the VA. (Id. ). Plaintiff did not ask Defendant to cease calling him during that conversation. (Id. ). During the third conversation, on September 19, 2017, once Plaintiff realized he was speaking with Defendant, he stated that he only deals directly with businesses to whom he owes money, not with recovery services, then immediately terminated the call. (Def. Exhibit E). During the fourth conversation, on October 5, 2017, once Plaintiff realized he was speaking with Defendant, he stated that he appreciated Defendant's call but did not accept calls from collection agencies before immediately ending the call. (Def. Exhibit F).
Plaintiff has no documentary or recorded evidence to support this statement and could not say on which call he told Defendant to stop calling him. (Pl. Depo. at 32-33).
Plaintiff's counsel sent a letter to Defendant dated October 9, 2017 requesting that Defendant cease calling Plaintiff regarding the debt. (Def. SMF ¶ 6; Hines Aff. ¶ 10; Doc. 20 ¶ 6). Defendant did not call Plaintiff again regarding the debt after receiving that letter. (Def. SMF ¶ 7; Hines Aff. ¶ 11; Doc. 20 ¶ 7).
DISCUSSION
I. Summary Judgment Standard
Summary judgment is proper "if the movant shows that 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). "A party asserting that a fact cannot be or is genuinely disputed must support that assertion by[ ] ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1). The moving party has an initial burden of informing the court of the basis for the motion and showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see also Arnold v. Litton Loan Servicing, LP , No. 1:08-CV-2623-WSD, 2009 WL 5200292, at *4 (N.D.) ("The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact.") (citing Herzog v. Castle Rock Entm't , 193 F.3d 1241, 1246 (11th Cir. 1999) ). If the non-moving party will bear the burden of proving the material issue at trial, then in order to defeat summary judgment, that party must respond by going beyond the pleadings, and by the party's own affidavits, or by the discovery on file, identify facts sufficient to establish the existence of a genuine issue for trial. See Celotex , 477 U.S. at 322, 324, 106 S.Ct. 2548. "No genuine issue of material fact exists if a party has failed to ‘make a showing sufficient to establish the existence of an element ... on which that party will bear the burden of proof at trial.’ " AFL-CIO v. City of Miami , 637 F.3d 1178, 1186-87 (11th Cir. 2011) (quoting Celotex , 477 U.S. at 322, 106 S.Ct. 2548 ).
Furthermore, "[a] nonmoving party, opposing a motion for summary judgment supported by affidavits[,] cannot meet the burden of coming forth with relevant competent evidence by simply relying on legal conclusions or evidence which would be inadmissible at trial." Avirgan v. Hull , 932 F.2d 1572, 1577 (11th Cir. 1991), cert. denied , 506 U.S. 952, 113 S.Ct. 405, 121 L.Ed.2d 330 (1992) ; see also FED. R. CIV. P. 56(c)(1)(B), (c)(4). The evidence "cannot consist of conclusory allegations or legal conclusions." Avirgan , 932 F.2d at 1577. Unsupported self-serving statements by the party opposing summary judgment are insufficient to avoid summary judgment. See Midwestern Waffles, Inc. v. Waffle House, Inc. , 734 F.2d 705, 714 (11th Cir. 1984).
For a dispute about a material fact to be "genuine," the evidence must be such that "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted). It is not the court's function at the summary judgment stage to determine credibility or decide the truth of the matter. Id. at 249, 255, 106 S.Ct. 2505. Rather, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [the nonmovant's] favor." Id. at 255, 106 S.Ct. 2505.
II. Plaintiff's Claim
In his Complaint, Plaintiff alleged that Defendant violated §§ 1692d and 1692d(5) of the FDCPA "when it called Plaintiff repeatedly within the one year period preceding the filing of this Complaint knowing that its calls were unwanted." (Doc. 1 ¶ 22). Plaintiff alleged Defendant called him repeatedly from "June or July 2017" "through October 2018" in order to collect on a medical debt. (Id. ¶¶ 11, 14). Plaintiff also alleged that he "repeatedly told Defendant to stop calling" to collect the debt (Id. ¶ 15), but "Defendant ignored [his] repeated requests ... and continued to call." (Id. ¶ 16). According to Plaintiff, Defendant's "continued calls could only have been placed for the purpose of harassing Plaintiff." (Id. ¶ 18).
III. FDCPA Framework
"In enacting the FDCPA, Congress sought ‘to eliminate abusive debt collection practices by debt collectors, to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.’ " LeBlanc v. Unifund CCR Partners , 601 F.3d 1185, 1190 (11th Cir. 2010) (quoting 15 U.S.C. § 1692(e) ). To prevail on an FDCPA claim, a plaintiff must establish that:
(1) [he has] been the object of collection activity arising from a consumer debt; (2) the defendant attempting to collect the debt qualifies as a ‘debt collector’ under the Act; and (3) the defendant has engaged in a prohibited act or has failed to perform a requirement imposed by the FDCPA.
Buckley v. Bayrock Mortg. Corp. , No. 1:09-CV-1387-TWT-RGV, 2010 WL 9476172, at *6, 2010 U.S. Dist. LEXIS 10636 (N.D. Jan. 12, 2010) (quotation omitted), adopted by 2010 WL 476673, 2010 U.S. Dist. LEXIS 10632 (N.D. Ga. Feb. 5, 2010). In this case, there is no dispute over whether Plaintiff has been the object of collection activity arising from a consumer debt. (Def. SMF ¶ 2; Hines Aff. ¶ 6; Doc. 20 ¶ 2). There is also no dispute over whether Defendant is a debt collector. (Doc. 1 ¶ 8; Doc. 5 ¶ 8). The issue in this case is whether Defendant violated §§ 1692d or 1692d(5) of the FDCPA.
Section 1692d prevents debt collectors from "engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. "[C]laims under § 1692d should be viewed from the perspective of a consumer whose circumstances makes him relatively more susceptible to harassment, oppression, or abuse." Jeter v. Credit Bureau, Inc. , 760 F.2d 1168, 1179 (11th Cir. 1985). "It is not enough that a debt collector's actions caused the consumer ‘embarrassment, inconvenience, and further expense,’ but rather those actions must ‘manifest a tone of intimidation’ to fall under the ambit of § 1692d." Middlebrooks v. Sacor Fin., Inc. , 775 F. App'x. 594, 597 (11th Cir. 2019) (quoting Miljkovic v. Shafritz and Dinkin, P.A. , 791 F.3d 1291, 1305 (11th Cir. 2015) (quotation marks omitted)) (unpublished opinion). "Ordinarily, whether conduct harasses, oppresses, or abuses will be a question for the jury. Nevertheless, Congress has indicated its desire for the courts to structure the confines of § 1692d." Jeter , 760 F.2d at 1179 (citing S. Rep. No. 95-832, 95th Cong., 1st Sess., reprinted in 1977 U.S. Code Cong. & Ad. News 1695, 1698).
One specific way a debt collector can violate that section is by "[c]ausing 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." 15 U.S.C. § 1692d(5). Plaintiff points out in his brief that the FDCPA is a strict liability statute that does not require proof of intentional conduct by a debt collector for a plaintiff to collect damages. (Doc. 19 at 5 (citing Russell v. Equifax A.R.S. , 74 F.3d 30 (2d Cir. 1996) )). However, "Congress took care to require an element of knowledge or intent in certain portions of the FDCPA where it deemed such a requirement necessary." Kaplan v. Assetcare, Inc. , 88 F. Supp. 2d 1355, 1362 (S.D. Fl. 2000) (citing 15 U.S.C. § 1692d(5) ). Consequently, Plaintiff is required to prove Defendant's intent to annoy, abuse, or harass with its phone calls in order to succeed on his § 1692d(5) claim.
In deciding whether a debt collector has violated § 1692d(5), courts look at a variety of factors. "Courts have held that ‘[w]eather there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls.’ " Brown v. Credit Mgmt. , 131 F. Supp. 3d 1322, 1340 (N.D. Ga. 2015) (quoting Brandt v. I.C. Sys., Inc. , No. 8:09-CV-126, 2010 WL 582051, at *2 (M.D. Fla. Feb. 19, 2010) (citations omitted)). Additionally, "[i]ntent to annoy, abuse, or harass may be inferred from the frequency of phone calls, the substance of the phone calls, or the place to which phone calls are made." Hair v. Lazega & Johanson LLC , No. 1:13-CV-01762-AT-AJB, 2014 WL 12571424, at *7 (N.D. Ga. July 7, 2014) (citing Kerwin v. Remittance Assistance Corp. , 559 F. Supp. 2d 1117, 1124 (D. Nev. 2008) ), adopted by No. 1:13-CV-01762-AT, 2014 WL 12575746 (N.D. Ga. Aug. 6, 2014). Moreover, "intent may be inferred by evidence that the debt collector continued to call the debtor after the debtor had asked not to be called and had repeatedly refused to pay the alleged debt, or during a time of day which the debtor had informed the debt collector was inconvenient." Brown , 131 F. Supp. 3d at 1340 (quoting Brandt , 2010 WL 582051, at *2 (citation omitted)).
With those legal frameworks in mind, the undersigned considers the parties arguments. IV. Analysis of Defendant's Motion
Defendant does not raise the issue of whether Plaintiff can bring claims under §§ 1692d and 1692d(5) on the same set of facts. See Stirling v. Genpact Servs., LLC , No. 2:11-CV-06369-JHN-MANx, 2012 WL 952310, at *3 (C.D. Cal. Feb. 27, 2017) (holding that the plaintiff there could not proceed under § 1692d and § 1692d(5) on the same set of facts, without more, because if would "effectively eviscerate the requisite intent contemplated in situations governed by § 1692d(5)" and "render that entire subsection superfluous.") The Court will not reach that issue, because it appears Defendant is entitled to summary judgment under each provision.
Here, Defendant argues that it is entitled to summary judgment on Plaintiff's §§ 1692d and 1692d(5) claims, because (1) Plaintiff never requested Defendant stop calling him to collect the debt (Doc. 17-1 at 9) and (2) "[n]othing about the pattern or timing of the telephone calls made to the Plaintiff can be construed as harassing." (Id. at 10). For the reasons stated below, the Court agrees that Defendant is entitled to summary judgment under §§ 1692d and 1692d(5).
a. Statute of Limitations
Before addressing the merits, Defendant argues that the statute of limitations for violations of the FDCPA prevents six of the calls made to Plaintiff from being considered in deciding this motion. (Doc. 17-1 at 7). Plaintiff does not respond to this argument. (See Doc. 19). Even if the Court considers all eight of Defendant's calls to Plaintiff, Defendant is entitled to summary judgment on both of Plaintiff's claims. Therefore, the Court need not decide the statute of limitations issue.
b. Whether Plaintiff told Defendant to Cease Calling
Defendant argues that it is entitled to summary judgment, because Plaintiff cannot prove that he ever orally asked Defendant to cease calling him. (Doc. 17-1 at 8-10). Plaintiff claims that "the recordings Defendant attached as exhibits to its motion demonstrate beyond doubt that Plaintiff instructed Defendant to stop calling on numerous occasions." (Doc. 19 at 3). Plaintiff also testifies in his deposition that he requested Defendant stop calling him multiple times. (Doc. 20 ¶ 12; Pl. Depo. 20, 32-33). Plaintiff does not claim anywhere in the record that such a request took place outside of the four recorded phone conversations provided by Defendant. (See Pl. Depo. and Doc. 19). In fact, Plaintiff confirmed that his claim is based on his belief that he told Defendant, in at least one of the recorded conversations provided by Defendant, to stop calling him. (Def. SMF ¶ 12; Pl. Depo. 23). After reviewing the recorded conversations, it is clear to the Court that Plaintiff never specifically asked Defendant's representatives to cease calling him. (Def. Exhibits C-F; See supra at 1377–78 (detailing what Plaintiff actually said in each call)). Plaintiff admits as much elsewhere in the record. (Doc. 20 ¶ 13). Since Plaintiff did not orally request that Defendant stop calling him in the recorded conversations provided, and since he is not arguing that he did so in any separate conversations, the Court finds it is an undisputed fact that Plaintiff did not orally request Defendant cease calling him. With that issue of fact resolved, the Court analyzes whether Defendant violated §§ 1692d or 1692d(5).
c. Whether Defendant violated §§ 1692d or 1692d(5)
No jury could find that the natural consequence of Defendant's phone calls to Plaintiff was to harass, oppress, or abuse Plaintiff in violation of § 1692d or that Defendant intended to annoy, abuse, or harass Plaintiff in violation of § 1692d(5), because Defendant's calls were infrequent, Plaintiff never orally requested that Defendant cease calling him, and Defendant did not call Plaintiff at inconvenient times. Therefore, Defendant is entitled to summary judgment on both of Plaintiff's claims.
Courts have held that a debt collector is entitled to summary judgment on §§ 1692d and 1692d(5) claims where debt collectors called debtors more frequently over shorter times frames than Defendant did here, because there was no proof of additional harassing, oppressive, annoying, or abusive conduct, such as repeated calls after a plaintiff's oral request that the defendant cease calling. In Tucker v. CBE Group, Inc. , 710 F. Supp. 2d 1301 (M.D. Fla. 2010), a court granted a debt collector summary judgment on a § 1692d(5) claim, even though the defendant called the plaintiff fifty-seven times, including as many as seven times in a single day, and left six voicemail messages. Tucker , 710 F. Supp. 2d at 1305. The court there supported its decision by noting there was no evidence the defendant was ever asked to cease calling or ever spoke with the plaintiff. Id . In Valle v. Nat'l Recovery Agency , No. 8:10-CV-2775-T-23MAP, 2012 WL 1831156 (M.D. Fla. May 18, 2012), a court granted summary judgment to a defendant on a § 1692d claim, even though the defendant had called the plaintiff debtor eighty-two times in a 252-day span, a rate of once every three days. Valle , 2012 WL 1831156, at *2. The Valle court reasoned that the calls did not violate § 1692d because there was not any evidence of additional harassing conduct such as, among other things, the defendant calling after a request that it cease doing so. Id. In Hair , this Court granted a defendant's motion for summary judgment on a § 1692d(5) claim, because the plaintiff there presented no authority that nineteen debt collection phone calls in five months, without more, could be considered harassment under the statute. Hair , 2014 WL 12571424, at *7. In Grimsley v. Palm Beach Credit Adjusters, Inc. , 691 F. App'x. 576, 580 (11th Cir. 2017) (unpublished opinion), the Eleventh Circuit held that a debt collector's four calls in two weeks created no genuine issue of material fact as to whether the debt collector harassed that plaintiff under § 1692d. Grimsley , 691 F. App'x. at 580. The Grimsley court upheld summary judgment for the debt collector. Furthermore, this court has stated, in dicta, that a lack of evidence that a plaintiff debtor requested a debt collector cease calling can be an indication that the debt collector's phone calls were not intended to be harassing under § 1692d(5). Maddox v. CBE Group, Inc. , No. 1:17-CV-1909-SCJ, 2018 WL 2327037, at *6 (N.D. Ga. June 25, 2018) (citing Arteaga v. Asset Acceptance, LLC , 733 F. Supp. 2d 1218, 1229 (E.D. Cal. 2010) (granting summary judgment to debt collector on § 1692d(5) claim, even assuming the defendant had called the plaintiff "daily" or "nearly daily", because there was no evidence of other harassing or oppressive behavior, such as continued calls after a request by the plaintiff that the debt collector cease calling)).
Here, Defendant's eight calls to Plaintiff is a significantly lower volume of calls than the fifty-seven calls made in Tucker or the eighty-two calls made in Valle . Additionally, the rate which Defendant called Plaintiff, averaging about one call per month, was substantially lower than the rate at which the debt collectors called the plaintiffs in Valle (once every three days), Hair (averaging one call per week), or Grimsley (two calls per week). Without evidence of other harassing circumstances, as a matter of law, the volume and pattern of Defendant's calls to Plaintiff do not establish a claim under §§ 1692d or 1692d(5). As established above, there is no evidence of one particular type of harassing conduct, continued calls after an oral request for the debt collector to cease calling. (See supra at 1381–82). Just as in Tucker and Valle , the absence of that fact weighs against a finding that Defendant's calls were by nature harassing or intended to be harassing.
Courts have held that a debtor's oral request that a debt collector cease calling to collect a debt may preclude summary judgment for the debt collector. In Brandt , the Middle District of Florida denied a debt collector's motion for summary judgment on the plaintiff's § 1692d(5) claim because the debt collector there called the plaintiff 101 times over two months after the plaintiff had told the debt collector to stop calling him, that the calls were upsetting him, and that he had already paid off the debt. Brandt , 2010 WL 582051, at *2-3. In Meadows v. Franklin Collection Servs., Inc. , 414 F. App'x. 230 (11th Cir. 2011), the Eleventh Circuit reversed a district court's granting of summary judgment to a debt collector on a § 1692d claim. There, the defendant called the plaintiff 300 times over two and one-half-year period about a debt even after she told the defendant she was not the debtor, she did not know where the debtor was, and asked the defendant to cease calling her. Id. at 232-34.
The facts here are distinguishable from those in Brandt or Meadows . Unlike in Brandt and Meadows , where the defendants called the plaintiffs 101 times in two months and 300 times over two and one-half years, respectively, after being asked to cease calling, Defendant in this case called Plaintiff much less frequently. Here, after Defendant's first conversation with Plaintiff on April 26, 2017, Defendant only called Plaintiff back five more times over the next five months. (Hines Aff. ¶¶12-13). Five calls in a little more than five months is drastically less intrusive than the 101 calls over the same amount of time in Brandt or the 300 calls in Meadows . The volume and frequency of Defendant's calls in this case does not "represent[ ] the type of coercion and delving into the personal lives of debtors that the FDCPA in general, and § 1692d in particular, was designed to address." Middlebrooks , 775 F. App'x. at 597 (citing Miljkovic, 791 F.3d at 1305 ). Therefore, even if Plaintiff could prove to have orally requested that Defendant stop calling him, the low frequency of calls between Defendant and Plaintiff suggests that their natural consequences was not to harass, oppress, or abuse and that Defendant's intent was not to annoy, abuse, or harass Plaintiff.
Alternatively, Plaintiff seems to argue that Defendant's calls constituted harassment, even though he never orally requested that Defendant cease future calls, because Defendant should have known that its calls were "unwanted" based on what Plaintiff actually said in his conversations with Defendant's representatives. (Doc. 19 at 3). According to Plaintiff, it was harassment for Defendant to call him back after he told Defendant that he was unable to pay the debt, that the Defendant needed to collect this debt from the VA, and that Plaintiff, as a personal rule, does not speak to debt collectors. (Doc. 19 at 3-4). Plaintiff cites Meadows for the notion that a debt collector violates § 1692d by continuing to call a debtor after being "put on notice" that the debt collector's calls are unwanted. (Doc. 19 at 7). However, as stated above, the Meadows plaintiff conveyed that the calls were unwanted by telling that debt collector she was not the debtor, that the debt collector was calling an incorrect number, and by specifically asking that the calls cease. Meadows , 414 F. App'x. at 232-35. Here, Plaintiff has not argued that he is not the debtor and did not orally request that Defendant's calls cease. Plaintiff presents no other authority to support his arguments that Defendant violated §§ 1692d or 1692d(5) by calling him less than a handful of times after he terminated multiple calls, told Defendant he could not pay the debt, and told Defendant that he did not speak to debt collectors.
The most analogous case the Court could find to support Plaintiff's argument is Brown , where this Court refused to grant summary judgment to a defendant debt collector on a § 1692d claim because the debt collector called the plaintiff four times in one day: three times after the defendant had identified itself and the plaintiff had hung up immediately, two times after the plaintiff had hung up again, and one more time after the plaintiff stated that she was unable to pay the debt but would contact the debt collector when she found a way to pay, that she felt harassed, and hung up a third time. Brown , 131 F. Supp. 3d at 1341. Similarly, here, Defendant continued calling Plaintiff even after being hung up on multiple times and after Plaintiff said he could not pay the debt. (Def. Exhibits C-F). However, unlike in Brown , where all the defendant's calls in question took place on one particular day, Defendant's five calls after Plaintiff terminated the April 26, 2017 conversation, which would have been the earliest indication that Defendant's calls were unwanted, were spread out over approximately five months, with no two calls being less than 16 days apart. (Hines Aff. ¶¶ 12-13). Five calls over five months would not generate the feelings of harassment, oppression, abuse, or annoyance that four calls in one day might. Furthermore, unlike in Brown , where the plaintiff specifically told the defendant that she felt harassed, Plaintiff here never indicated to Defendant that he felt harassed. In fact, Plaintiff expressed understanding during the second recorded conversation when Defendant's representative said she could not cease calling him simply because he claimed the VA was responsible for paying the debt. In response to that statement, Plaintiff said, "Yea, that's fine...." (Def. Exhibit D). Given these facts, no reasonable jury could conclude that the natural consequences of Defendant's conduct was to harass, oppress, or abuse, or that "Defendant knew or should have known that its continued calls would be annoying, abusive, or harassing." Brown , 131 F. Supp. 3d at 1341.
Finally, the fact that Defendant did not call Plaintiff during inconvenient hours provides further support for a conclusion that its calls were not harassing under § 1692d nor intended to be harassing under § 1692d(5). In Grimsley , while affirming summary judgment for a defendant debt collector on a § 1692d claim, the Eleventh Circuit noted that the defendant there had not made any calls or left any voicemails before 8:00 a.m. or after 9:00 p.m., hours that are assumed to be inconvenient under the FDCPA. Grimsley , 691 F. App'x. at 580 (citing 15 U.S.C. § 1692c(a)(1) ). One reason the Grimsley court affirmed summary judgment for that defendant was the absence of calls at inconvenient times. Similarly, here, Defendant's records show that all its calls were between the hours of 11:00 a.m. and 7:00 p.m. (Def. SMF ¶ 5; Hines Aff. ¶ 9). Plaintiff testified that at least one of Defendant's calls was before 10:00 a.m. (Pl. Depo. at 17), but that time frame falls within the FDCPA's range of acceptable hours. That lack of evidence weighs against a jury being able to find that Defendant violated §§ 1692d or 1692d(5) here.
CONCLUSION
In conclusion, based on the undisputed facts presented, no reasonable jury could find that Defendant's calls to Plaintiff were harassing, oppressive, or abusive under § 1692d or that Defendant intended its calls to annoy abuse, or harass Plaintiff under § 1692d(5). Defendant's calls were too infrequent to constitute a violation of either provision. Furthermore, there was a lack of additional harassing conduct, such as continued calls after an oral request from Plaintiff that Defendant cease calling or Defendant calling at inconvenient times. Additionally, Plaintiff did not present authority that it was harassment for Defendant to call him after Plaintiff declared he could not pay the debt or after he told Defendant that he does not speak to debt collection services. As a result, nothing about Defendant's calls "represent[ ] the type of coercion and delving into the personal lives of debtors that the FDCPA in general, and § 1692d in particular, was designed to address." Middlebrooks , 775 F. App'x. at 597 (citing Miljkovic, 791 F.3d at 1305 ).
SUMMARY
It is RECOMMENDED that Defendant Nationwide Recovery Service's motion for summary judgment (Doc. 17) be GRANTED.
IT IS SO REPORTED AND RECOMMENDED this 16th day of December, 2019.