Rosario Perez Alvarez v. Medicredit, Inc.

Response in Opposition to Motion

W.D. Tex.March 5, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS ROSARIO PEREZ ALVAREZ, ) ) Plaintiff, ) ) vs. ) Case No. 5:17-CV-00195-RCL ) MEDICREDIT, INC., ) ) Defendant. ) DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE Defendant, Medicredit, Inc. (“Medicredit”), through its undersigned counsel, submits the following Response in Opposition to Plaintiff’s Motions in Limine: I. Preliminary Statement Plaintiff has filed the following three motions in limine: (1) seeking to preclude mention of “any facts relating to the character or motives of Plaintiff”; (2) seeking to preclude any dispute that Medicredit called Plaintiff using an ATDS; and (3) seeking to preclude any evidence not produced in discovery. While Medicredit does not intend to argue that it is not liable because Plaintiff owed a valid debt, this Court should deny Plaintiff’s first request to the extent she seeks to prohibit Medicredit from presenting evidence that she owed the debt at issue here. Such evidence is necessary context for the jury as it explains how Medicredit obtained Plaintiff’s consent and why it was calling. Further, cross-examination concerning other debts Plaintiff may have owed during the period of time at issue in this case is relevant to whether Plaintiff may have revoked the consent she provided. That is, if Plaintiff was also receiving calls from other debt collectors, Medicredit is entitled to present such evidence and testimony to show that Plaintiff did not orally Case 5:17-cv-00195-RCL Document 74 Filed 03/05/19 Page 1 of 10 2 SL 3225937.1 revoke her consent that Medicredit possessed; rather, she may have revoked consent that a different debt collector may have had. This Court should also deny Plaintiff’s second request because whether Medicredit called Plaintiff using an ATDS is the subject of Medicredit’s pending Motion for Clarification and/or Reconsideration (Doc. 44). In the event the Court grants that Motion, then the issue of whether Medicredit used an ATDS to call Plaintiff will either be determined as a matter of law by this Court or left for the jury to decide.1 If the Court leaves that issue for the jury, then, because it is indisputably an element of Plaintiff’s TCPA claim to prove that Medicredit used an ATDS, evidence and argument on that element will necessarily be relevant. Finally, while Medicredit’s exhibit list includes only documents produced in this case, this Court should deny Plaintiff’s third request to the extent she seeks to preclude impeachment evidence or documents that she did not request in discovery. II. Argument A. Medicredit should be allowed to present evidence regarding the debt Plaintiff owed to Santa Rosa as well as other debts she may have owed around the time Medicredit called her. Plaintiff argues, in a very general fashion, that Medicredit should be prohibited from making “any statements or inferences relating to the character and motives of Plaintiff.” See Doc. 71 at pp. 3–5. Plaintiff appears most acutely concerned with preventing Medicredit from arguing that, because Plaintiff may have fallen into financial difficulty, she had an improper motive to bring this suit. Medicredit, however, does not intend to argue that the jury should find against Plaintiff merely because she may be in financial difficulty. 1 As Medicredit argued in its Motion in Limine #3 (Doc. 70), if this Court were to completely grant Medicredit’s Motion for Clarification and/or Reconsideration and hold that its system is not an ATDS as a matter of law, then that would resolve all remaining questions in this case such that a jury trial would be unnecessary. Case 5:17-cv-00195-RCL Document 74 Filed 03/05/19 Page 2 of 10 3 SL 3225937.1 That said, Medicredit must be allowed to mention that Medicredit owed a debt to the original creditor—Santa Rosa—to show that Medicredit had Plaintiff’s consent to call her using an ATDS. Indeed, the FCC has stated that “autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible calls made with the ‘prior express consent’ of the called party.” In re Rules Implementing the Telephone Consumer Protections Act of 1991, 23 F.C.C.R. 559, 559 (2008) (“2008 Order”). Further, by providing a cell phone number to a creditor as part of an application, the called party “reasonably evidences prior express consent...to be contacted at that number regarding the debt.” Id. at 564. The FCC has also established that that consent is “valid not only for the calls made by the original creditor, but also for those made by a third party collector acting on behalf of that creditor.” In re Rules Implement the Tel. Consumer Prot. Act of 1991 Am., 30 F.C.C.R. 7961, 8028 (2015) (“2015 Order”). As part of its defense, Medicredit intends to present evidence and argue that Plaintiff provided her cellular telephone number to the original creditor and that the original creditor placed Plaintiff’s account with Medicredit for collection. Medicredit intends to do so to establish that Plaintiff consented to the calls at issue here. In fact, Plaintiff has stipulated that she provided such consent to Santa Rosa and that the consent transferred to Medicredit. See Doc. 61 at ¶¶ 1–2. So, in order to argue the defense of consent, Medicredit must be allowed to present evidence that Plaintiff owed a debt to Santa Rosa. Medicredit must also be allowed to present evidence and testimony that Plaintiff may have owed other debts and that other debt collectors may have been attempting to collect at the same time as Medicredit. Plaintiff appears to intend to attempt to establish that she orally Case 5:17-cv-00195-RCL Document 74 Filed 03/05/19 Page 3 of 10 4 SL 3225937.1 revoked her consent prior to May 31, 2016.2 It is thus relevant whether Plaintiff was receiving calls from other debt collectors around that time. This evidence would be relevant to defeat her claimed revocation of consent in that it may show that Plaintiff told another debt collector, and not Medicredit, to stop calling her. If that is the case, then Plaintiff did not revoke the prior express consent Medicredit possessed. Thus, such evidence is relevant as it makes a fact of consequence (whether Plaintiff revoked her consent) less likely. See F.R.E. 401 & 402. This evidence is not unduly prejudicial and any prejudice that may result will also be alleviated by the parties’ stipulated jury instructions. Notably, the parties stipulated that the jury shall be instructed that “Whether the consumer in fact owed money is not material to this case and must not be weighed in your deliberation.” See Doc. 57 at p. 12. In other words, the jury will be told not to hold the fact that Plaintiff may have owed a debt or debts against her and thus no prejudice will result from any evidence concerning Plaintiff’s debts. That instruction is therefore sufficient to cure any supposed prejudice. See DataTreasury Corp. v. Wells Fargo & Co., 2011 WL 13140661, at *3 (E.D.Tex. Jan 12, 2011) (citing several cases for the proposition that district courts are to presume that a jury follows the instructions); see also Hollis v. Provident Life and Acc. Ins. Co., 259 F.3d 410, 417 (5th Cir. 2001) (citing Richardson v. Marsh, 481 U.S. 200, 206 (1987) for the proposition that “[j]uries are presumed to follow the instructions of the court.”). Plaintiff has stipulated to this instruction and cannot now argue that at any reference to Plaintiff’s debt or debts is not relevant. Therefore, to the extent that Plaintiff seeks to prohibit Medicredit from introducing evidence concerning the debt at issue in this case or from introducing evidence that Plaintiff may 2 As Medicredit argues in its Motion in Limine #1 (Doc. 68), Plaintiff is foreclosed from doing so because of this Court’s Order granting its Motion for Partial Summary Judgment. Case 5:17-cv-00195-RCL Document 74 Filed 03/05/19 Page 4 of 10 5 SL 3225937.1 have been receiving calls from other debt collectors, this Court should deny Plaintiff’s first Motion in Limine. B. This Court should allow evidence and argument that Medicredit did not use an ATDS to call Plaintiff because Plaintiff must prove that fact as an element of her claim. Plaintiff claims, in conclusory fashion, that “the question of whether Defendant used an ATDS is not within the purview of the jury.” Plaintiff ignores, however, that Medicredit has filed a Motion for Clarification and/or Reconsideration that remains pending. See Doc. 44. In that Motion for Clarification and/or Reconsideration, Medicredit asked this Court to clarify whether it has, in fact, determined Medicredit’s telephone system to constitute an ATDS. Medicredit has also asked this Court to reconsider that determination, to the extent it has found Medicredit’s telephone system to be an ATDS, in light of the D.C. Circuit’s ruling in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), which was released after the parties’ cross-motions for partial summary judgment were fully briefed. In particular, Medicredit argued that the D.C. Circuit invalidated the definition of ATDS on which Plaintiff relied exclusively in arguing that Medicredit’s telephone system is an ATDS. See Doc. 44 at pp. 5–8. Of the options before the Court in ruling on the Motion for Clarification and/or Reconsideration, there are at least two possibilities that could leave the question of whether Medicredit used an ATDS to call Plaintiff to the jury. One such option is that the Court could rule that it has not definitively held that Medicredit used an ATDS. Another option is that the Court rules that it did already make that decision but is vacating it based on the ACA Int’l opinion and leaving this question for the jury.3 In either of those scenarios, then the jury will 3 As noted in Footnote 1 above and as argued in Medicredit’s Motion in Limine #3 (Doc. 70), if this Court grants Medicredit’s Motion for Clarification and/or Reconsideration, no issues would remain for trial. Case 5:17-cv-00195-RCL Document 74 Filed 03/05/19 Page 5 of 10 6 SL 3225937.1 necessarily have to decide that issue. As Plaintiff herself concedes, whether Medicredit used an ATDS is an essential element of her TCPA claim. See Doc. 71 at p. 5. Thus, this Court, at a minimum, should defer ruling on Plaintiff’s second Motion in Limine until it has ruled on Medicredit’s Motion for Clarification and/or Reconsideration. Further, if this Court rules in response to that Motion that it either has not decided the question of whether Medicredit used an ATDS or that it is vacating any determination that it used an ATDS and is leaving that question to the jury, then it should deny Plaintiff’s second Motion in Limine. C. Medicredit should be allowed to introduce evidence that was not produced in discovery to the extent Plaintiff did not request it or to the extent used only for impeachment. As an initial matter, Medicredit has not listed any exhibits in its Exhibit List that it did not disclose in discovery during this case. Further, Plaintiff has not identified any exhibits on Medicredit’s Exhibit List which were not properly disclosed or produced in discovery. As such, Plaintiff’s third Motion in Limine is ill-founded. Addressing the merits of Plaintiff’s third Motion in Limine, while Plaintiff correctly points out that, generally, a party should not be allowed to introduce evidence at trial that it did not produce in discovery, Plaintiff ignores that such information must be requested during discovery and information that will be used only for impeachment is not subject to disclosure. That is, F.R.C.P. 37(c) prohibits the use at trial of information or a witness not disclosed “as required by Rule 26(a) or (e). Rule 26(a) requires disclosure, as is relevant here, of the name, address, and telephone numbers of all individuals likely to have discoverable information and a “copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession...” See Fed.R.Civ.P. 26(a)(1) (emphasis added). Further, documents or witnesses who would be used Case 5:17-cv-00195-RCL Document 74 Filed 03/05/19 Page 6 of 10 7 SL 3225937.1 “solely for impeachment” are not subject to disclosure under Rule 26(a). See Fed.R.Civ.P. 26(a)(1)(A)(i) & (ii). Rule 26(e) requires supplementation of those disclosures and responses to discovery requests. See Fed.R.Civ.P. 26(e) (“A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response...”). So, Rule 37(c) prohibits use of information at trial that was not disclosed under Rule 26(a) or which the party failed to disclose in response to a specific discovery request, except information that would be used only for impeachment. Here, Plaintiff has not stated any particular documents or information that Medicredit failed to provide in response to particular discovery requests. Plaintiff’s third request is, therefore, moot as there is no pending controversy. Thus, to the extent Plaintiff seeks to exclude particular exhibits, this Court should deny that request for failure to identify both the piece of evidence sought to be disclosed and the particular discovery request in response to which that information should have been disclosed. This Court should also deny Plaintiff’s third Motion in Limine as to evidence to be used only for impeachment. III. Conclusion This Court should deny, at least in part, each of Plaintiff’s three Motions in Limine. As to Plaintiff’s first Motion in Limine, this Court should deny that request to the extent that Plaintiff seeks to exclude evidence of the particular debt in this case or to the extent she seeks to exclude evidence of calls from other debt collectors she may have been receiving at the same timeframe at issue in this case. Such evidence is relevant to establish that Plaintiff consented to the calls Medicredit placed to her and did not revoke that consent. Case 5:17-cv-00195-RCL Document 74 Filed 03/05/19 Page 7 of 10 8 SL 3225937.1 This Court should also deny Plaintiff’s second Motion in Limine, or at the very minimum, defer ruling until it has ruled on Medicredit’s Motion for Clarification and/or Reconsideration because Medicredit has specifically requested that this Court clarify and/or reconsider whether it has determined that Medicredit used an ATDS to call Plaintiff. Thus, to the extent that Court rules that it either has not decided whether Medicredit used an ATDS or vacates any such prior determination, this Court should also deny Plaintiff’s second Motion in Limine. Finally, this Court should deny Plaintiff’s third Motion in Limine to the extent that Plaintiff seeks to exclude evidence she did not request in discovery or evidence that will be used only for impeachment purposes. WHEREFORE Defendant Medicredit, Inc. requests this Court deny Plaintiff’s Motions in Limine for the reasons set forth in the proposed order submitted herewith and any additional relief the Court deems appropriate. Dated this 5th day of March, 2019. Respectfully submitted, By: s/ Jacob F. Hollars Jamie N. Cotter (admitted pro hac vice) Colorado Bar No. 40309 Jacob F. Hollars (admitted pro hac vice) Colorado Bar No. 50352 jcotter@spencerfane.com jhollars@spencerfane.com SPENCER FANE LLP 1700 Lincoln Street, Suite 2000 Denver, Colorado 80203 Tel: 303.839-3707 Fax: 303.839.3838 Tara Moriarty Kumpf Texas Bar No. 24092652 Tara.kumpf@ogletreedeakins.com Case 5:17-cv-00195-RCL Document 74 Filed 03/05/19 Page 8 of 10 9 SL 3225937.1 Shafeeqa W. Giarratani Texas Bar No. 24051493 Shafeeqa.giarratani@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 301 Congress Avenue, Suite 1150 Austin, Texas 78701 Tel: 512.344.4700 Fax: 512.344.4701 Case 5:17-cv-00195-RCL Document 74 Filed 03/05/19 Page 9 of 10 10 SL 3225937.1 CERTIFICATE OF SERVICE I hereby certify that a copy of the above pleading was served by the Court’s CM/ECF system on the following counsel, this 5th day of March, 2019: Amy Lynn Bennecoff Ginsburg Joseph “Jake” C. Hoeffel Kimmel & Silverman, P.C. 30 E Butler Pike Ambler, PA 19002 s/ Jacob F. Hollars Jacob F. Hollars Case 5:17-cv-00195-RCL Document 74 Filed 03/05/19 Page 10 of 10