Opinion
CIV. NO. 2:15-01305 WBS CKD
07-11-2016
DONNA REDDIN, Plaintiff, v. RASH CURTIS & ASSOCIATES, Defendant.
MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
Plaintiff brought this action under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692p, and California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code §§ 1788-1788.32, based on two phone calls she received from defendant Rash Curtis & Associates. Pursuant to Federal Rule of Civil Procedure 56, defendant now moves for summary judgment on all of plaintiff's claims.
I. Factual and Procedural Background
The limited facts giving rise to plaintiff's FDCPA and RFDCPA claims are essentially undisputed. Defendant is a debt collection agency and was assigned to collect a number of debts owed by plaintiff's son. (Keith Decl. ¶ 3 (Docket No. 10-4).) At approximately 10:00 a.m. on February 25, 2015, defendant placed an automated call to plaintiff's home number regarding that debt. (Id.) After the call, plaintiff called defendant and informed it that she did not want it to call her home number again. (Id. ¶ 5.) She also obtained defendant's email address and sent an email to defendant instructing it not to call her home again. (Id.; Reddin Decl. Ex. A (Docket No. 12-1).) Defendant received the email request and informed plaintiff that it would process her request. (Reddin Decl. Ex. A.) Although defendant removed plaintiff's home number from its collection account after receiving her email, the number had already been loaded into a dialer campaign through defendant's vendor, Global Connect, and Global Connect did not update its system to remove plaintiff's number until that night. (Keith Decl. ¶ 6.) At 6:00 p.m. that same day, defendant autodialed plaintiff's home number a second time before it had been removed from the dialer campaign. (Id. ¶¶ 3, 6.)
In her response to defendant's statement of undisputed facts, plaintiff indicates that she does not have "sufficient information" about Global Connect's procedures. (Pl.'s Sep. Stmt. of Undisputed Facts Nos. 13-14 (Docket No. 13).) Discovery in this case closed on April 1, 2016, (see Docket No. 8), and plaintiff did not seek to re-open discovery or make any showing suggesting she would be entitled to additional time under Rule 56(d). Moreover, the court cannot imagine how any additional evidence about Global Connect's procedures could establish a genuine issue for trial on plaintiff's claims.
Plaintiff initiated this action against defendant in state court, and defendant removed it to this court on the basis of federal question jurisdiction. In her Complaint, plaintiff alleges claims for violations of the FDCPA and RFDCPA. She specifically alleges that defendant violated subsections 1692c(a)(1), 1692d, 1692d(5), 1692e(2)(A), 1692e(10), 1692f, and 1692f(1) of the FDCPA and subsections 1788.11(d) and 1788.11(e) of the RFDCPA. (Compl. ¶ 11.) Defendant now moves for summary judgment on all of plaintiff's claims pursuant to Rule 56.
II. Analysis
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 material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.
Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.
In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . ." Id.
1. FDCPA Claim
In 1977, Congress enacted the FDCPA "to eliminate abusive debt collection practices by debt collectors, to insure 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." 15 U.S.C. § 1692(e). The Act establishes a nonexclusive list of unlawful debt collection practices and provides for public and private remedies. Id. §§ 1692-1692p.
a. Subsection 1692c(a)(1)
Subsection 1692c(a)(1) generally prohibits a debt collector from communicating with a "consumer in connection with the collection of any debt . . . at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer." Id. § 1692c(a)(1). FDCPA defines "consumer" as "any natural person obligated or allegedly obligated to pay any debt." Id. § 1692a(3). For purposes of § 1692c, "the term 'consumer' includes the consumer's spouse, parent (if the consumer is a minor), guardian, executor, or administrator." Id. § 1692c(d).
Here, it is undisputed that plaintiff was not obligated to pay any debt and that defendant telephoned her home only in an effort to collect debts her son owed, and plaintiff conceded at oral argument that her son was not a minor. Although plaintiff cites several cases recognizing FDCPA claims by non-debtors, those claims were for violations of other subsections of the FDCPA that are not limited to "consumers." (See Pl.'s Opp'n at 5 (Docket No. 13) (citing cases addressing § 1692d and § 1692e, which are not limited to "consumers").) Plaintiff relies heavily on the Sixth Circuit's recognition in Montgomery v. Huntington Bank that a non-debtor may bring claims under § 1692d and § 1692e. 346 F.3d 693, 696 (6th Cir. 2003). In that case, however, the Sixth Circuit expressly distinguished those subsections from § 1692c: "[R]elief is limited to 'consumers' only under § 1692c, [and] . . . . only a 'consumer' has standing to sue for violations under 15 U.S.C. § 1692c." Id. at 696-97 (internal quotation marks and citation omitted).
Plaintiff has also failed to put forth evidence from which a reasonable jury could find that telephone calls to a home at 10:00 a.m. or 6:00 p.m. are "at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer." 15 U.S.C. § 1692c(a)(1). Subsection 1692c(a)(1) in fact contemplates calls at those times, providing that "a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antemeridian and before 9 o'clock postmeridian, local time at the consumer's location." Id. § 1692c(a)(1).
Accordingly, because § 1692c is limited to "consumers," the court must grant defendant's motion for summary judgment on plaintiff's FDCPA claim based on § 1692c(a)(1).
Under § 1692c(c), "[i]f a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt," subject to limited exceptions. Plaintiff has not alleged a violation of § 1692c(c) in her Complaint and, even if she had, such a claim would fail because she is not a "consumer" under § 1692c(c). --------
b. Subsections 1692d and 1692d(5)
Subsection 1692d generally 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," and subsection 1692d(5) specifically provides that "[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" violates § 1692d. Id. § 1692d(5).
While the FDCPA is generally a strict liability statute, "Congress took care to require an element of knowledge or intent in certain portions of the FDCPA where it deemed such a requirement necessary," such as § 1692d(5). Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1176 (9th Cir. 2006) (internal quotation marks and citation omitted); accord Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 594 (2010) (citing § 1692d(5) as a provision of the FDCPA "applying to acts taken with particular intent").
Even pretending that a reasonable jury could find that two telephone calls are sufficiently repetitive and continuous so as to annoy, abuse, or harass a person, the undisputed evidence is that defendant removed plaintiff's number from its file after she requested it to cease calling her and the second call was inadvertently placed before the automated dialer system was updated that night. Based on this evidence, a reasonable jury could not find that defendant placed the second phone call "with intent to annoy, abuse, or harass," 15 U.S.C. § 1692d(5).
Nor could a reasonable jury find that the "natural consequence" of the two telephone calls in this case "is to harass, oppress, or abuse any person" as required for an FDCPA claim based solely on the general prohibition of § 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." Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1226 (E.D. Cal. 2010) (quoting Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985)). This objective standard is "similar to that of the 'least sophisticated debtor,' which the Ninth Circuit applies to other sections of the FDCPA." Id. (citing Clark, 460 F.3d at 1171). "Whether there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls." Joseph v. J.J. Mac Intyre Cos., L.L.C., 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002).
It is undisputed that defendant placed only two calls to plaintiff that were eight hours apart. The only evidence even weighing slightly in favor of plaintiff's claim is that she had instructed defendant not to call her again between the two calls. After plaintiff sent defendant the email requesting it not to call her again, defendant responded nine minutes later with a professional email that was responsive to her request: "Good Morning, Your request will be processed accordingly, have a great day. Thank you, Client Services." (Reddin Decl. Ex. A.) As the evidence reveals, the request required an overnight update of the automated dialer system to "process" plaintiff's request. When plaintiff informed the representative on the second call that she had already instructed defendant to cease calling her, plaintiff does not indicate that the representative did anything but honor her request and terminate the call. There is simply no evidence from which a reasonable jury could find that defendant was anything but professional in its communications with plaintiff or that it threatened or attempted to force plaintiff to remain on a call.
In arguing that defendant's conduct is sufficient to create a triable issue of fact as to harassment under § 1692d, plaintiff relies primarily on Meadows v. Franklin Collection Servive, Inc., 414 F. App'x 230, 2011 WL 479997 (11th Cir. Feb. 11, 2011), and Bingham v. Collection Bureau, Inc., 505 F. Supp. 864 (N.D. 1981). In Meadows, the defendant repeatedly called the plaintiff at home in an attempt to collect debts owed by other individuals who did not live at the plaintiff's residence. 2011 WL 479997, at *1. In May 2006, the plaintiff informed the defendant that "she did not know or wish to provide location information for the debtors" and requested that the defendant cease calling her. Id. Despite this request, the defendant continued to call the plaintiff multiple times a week for two-and-a-half years, with a total of about 300 calls. Id. at *1-2. Under those facts, the Eleventh Circuit held that the district court erred in granting summary judgment in favor of the defendant on the plaintiff's § 1692d claim. Id. at *2.
In Bingham, the defendant called the plaintiff at her home approximately fourteen times, with a call placed about every other day over a period of one month. 505 F. Supp. at 873. After the plaintiff hung up once the defendant had identified itself, the defendant immediately called the plaintiff a second time. Id. During the calls, representatives used alias, inquired about the plaintiff's wedding ring, and told the plaintiff something to the effect that she "should not have children if she could not afford them." Id. at 873-74. After conducting a bench trial and finding the plaintiff's testimony about the conduct credible, the court found harassment under § 1692d. Id. at 874-75.
The remaining cases plaintiff relies on are just as easily distinguished from the two calls placed in this case. See Kavalin v. Glob. Credit & Collection Corp., No. 10-CV-314 JTC, 2011 WL 1260210, at *4 (W.D.N.Y. Mar. 31, 2011) (denying the defendant's motion to dismiss the plaintiff's § 1692d claim based on allegations that the defendant had left "scores" of messages that contained deceptive and false statements); Pratt v. CMRE Fin. Servs., Inc., No. 4:10-CV-2332 CEJ, 2012 WL 86957, at *1-2, 4 (E.D. Mo. Jan. 11, 2012) (denying the defendant's motion for summary judgment on the plaintiff's § 1692d(5) claim after the plaintiff put forth evidence from which a jury could find that he received approximately sixty-five automated telephone calls after he had informed the defendant on the first call that it had the wrong number and that he did not owe the debt); Penny v. Williams & Fudge, Inc., 840 F. Supp. 2d 1314, 1322 (M.D. Fla. 2012) (denying the defendant's motion for judgment as a matter of law or, alternatively, a new trial after a jury returned a verdict in favor of the plaintiff on his § 1692d claim based on the defendant having called fifty to seventy times to collect a debt the plaintiff did not owe and leaving threatening or inappropriately suggestive messages); Rucker v. Nationwide Credit, Inc., No. 2:09-CV-2420 GEB EFB, 2011 WL 25300, at *2 (E.D. Cal. Jan. 5, 2011) (finding a triable issue of fact on the plaintiff's § 1692d and § 1692d(5) claims based on the defendant having called the plaintiff approximately 80 times); Bassett v. I.C. Sys., Inc., 715 F. Supp. 2d 803, 810 (N.D. Ill. 2010) (denying the defendant's motion for summary judgment on the plaintiff's § 1692d(5) claim when the undisputed evidence was that the defendant called the plaintiff thirty-one times over twelve days).
Because no reasonable jury could find that the "natural consequence" of the two non-threatening phone calls in this case would be to "harass, oppress, or abuse any person" or that defendant placed the calls with the intent to "annoy, abuse, or harass" plaintiff, the court must grant defendant's motion for summary judgment on her FDCPA claim based on § 1692d and § 1692d(5).
c. Subsections 1692e(2)(A) and 1692e(10)
Section 1692e prohibits a debt collector from "us[ing] any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. A debt collector can violate this subsection by falsely representing "the character, amount, or legal status of any debt," id. § 1692e(2)(A), or using "any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer," id. § 1692e(10).
In her affidavit, plaintiff states that the first call was "automated" and was "seeking to collect a debt from someone else." (Reddin Decl. ¶ 4.) As to the second call, she states only that it was from a "live person," but does not even suggest that the caller sought to collect a debt from her or made any false representations about the debt her son owed. (Id. ¶ 7.) She neither advances an argument nor submits any evidence suggesting a violation of § 1692e(2)(A) or § 1692e(10)in opposition to defendant's motion for summary judgment. The court must therefore grant defendant's motion for summary judgment on plaintiff's FDCPA claim premised on any violation of § 1692e(2)(A) or § 1692e(10).
d. Subsections 1692f and 1692f(1)
Section 1692f prohibits a debt collector from using "unfair or unconscionable means to collect or attempt to collect any debt," which includes "[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law." 15 U.S.C. § 1692f(1).
Similar to the alleged violations of § 1692e, plaintiff neither explains nor offers evidence supporting such violations in her opposition to defendant's motion for summary judgment. The undisputed evidence is that defendant was attempting to collect a debt from plaintiff's son and never attempted to or actually collected any debt or fee from plaintiff. The court must therefore grant defendant's motion for summary judgment on plaintiff's FDCPA claims based on violations of § 1692f and § 1692f(1).
2. RFDCPA Claim
Under the RFDCPA, "every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code." Cal. Civ. Code § 1788.17. The parties agree that plaintiff's RFDCPA claim survives summary judgment only if the court finds a disputed issue of material fact on her FDCPA claim. (See Def.'s Mem. at 10:14-16; Pl.'s Opp'n at 13:16-14:15.) Because the court finds that defendant is entitled to summary judgment as a matter of law on plaintiff's FDCPA claim, the court must also grant defendant's motion for summary judgment on her RFDCPA claim.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment be, and the same hereby is, GRANTED. Dated: July 11, 2016
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE