Abernathy v. NCC Bus. Servs., Inc.
| Decision Date | 18 September 2012 |
| Docket Number | CIVIL ACTION NO.: 2:11-CV-219-SA-SAA |
| Parties | ROGER ABERNATHY PLAINTIFF v. NCC BUSINESS SERVICES, INC. DEFENDANT |
| Court | U.S. District Court — Northern District of Mississippi |
Plaintiff Roger Abernathy commenced this Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., suit against Defendant NCC Business Services, Inc. Before the Court is a Motion to Dismiss, or in the Alternative, for Summary Judgment [10] filed by Defendant NCC. Also before the Court is Defendant's Motion to Strike [40] Plaintiff's Response in Opposition to Summary Judgment, as well as Plaintiff's Motion for Leave to File a Sur-Rebuttal in Opposition to the Motion to Strike [46]. The Court finds as follows:
BACKGROUND FACTS
Plaintiff alleges that beginning in September 2011, Defendant NCC (a third-party debt collection agency) began placing collection calls to Plaintiff's home, work, and cell phone in an attempt to collect a consumer debt. Plaintiff alleges that Defendant left a voicemail1 message on his home answering machine which failed to meaningfully disclose the caller's identity or disclose that it was from a debt collector. The alleged message stated:
Hello, this is an important call for Roger Abernathy. If this is Roger Abernathy, please press 1 now. If this is not Roger Abernathy, please press 2 now. Once again if this is Roger Abernathy, please press 1 now. If this is not Roger Abernathy, please press 2 now. Once again if this is Roger Abernathy, please press 1 now. If this is not Roger Abernathy, please press 2 now. Once again if this is Roger Abernathy,please press 1 now. If this is not Roger Abernathy, please press 2 now. Once again, this is an important call for Roger Abernathy. This is not a telemarketing call. Please ask Roger Abernathy to call us at (866) 227-9324 and reference account number 2691941. Thank you. Goodbye.
Plaintiff's Complaint contains a single count asserting that Defendant's conduct has violated §§ 1692(d), 1692(d)(6), 1692(e), 1692(e)(10), and 1692(e)(11) of the FDCPA.
NCC, by way of an affidavit from its Vice-President, Irv Pollan, asserts that NCC employs an auto-dialing system which recognizes answering machines. If an answering machine is detected, their system automatically hangs up without leaving a message. If a person answers the phone, the call recipient receives the recorded message transcribed in Abernathy's Complaint. Pollan states that "this is a reliable commercially available system which performs its intended functions and has no history of significant malfunctions."
After the recipient of the message presses either one or two, he or she is connected to a live operator who ascertains the identity of the person on the telephone. If the person on the telephone is the debtor, he or she is given a "mini-Miranda" warning containing certain disclosures required by the FDCPA. If the person on the phone is not the debtor, the NCC collector merely requests that the recipient ask the debtor to call NCC without revealing that the purpose of the call is debt collection. NCC utilizes this system in an attempt to simultaneously comply with the FDCPA mandate that certain disclosures be given to the debtor and the FDCPA prohibition of communicating with third parties regarding a debt.
Pollan asserts that in order for the Plaintiff to have recorded the transcribed message, he, or someone else at the house, would have to have actually answered the phone to trigger the system to play the recorded message, and then stay on the line without pressing either one or two. Abernathy denies ever picking up the phone.
Defendant has filed a Motion to Strike Plaintiff's Response in Opposition to its pending Motion for Summary Judgment because, according to NCC, it contains an affidavit which contradicts a purported Rule 36 admission by the Plaintiff. Defendant seeks to strike not only the affidavit but also Plaintiff's response in its entirety.
As noted above, NCC's Motion for Summary Judgment includes an affidavit from Irv Pollan. This affidavit is clearly marked as Exhibit "A." The affidavit itself includes two exhibits, including a copy of a collection letter clearly marked as Exhibit "A-1." Defendant propounded, inter alia, the following request for admission to the Plaintiff:
Defendant premises its motion to strike, as well as the majority of its summary judgment reply brief, on the erroneous belief that Plaintiff admitted the facts in Exhibit "A" (Pollan's affidavit) rather than "A-1" (the letter). Consequently, the Motion to Strike [40] is DENIED. Plaintiff's Motion for Leave to File a Sur-Reply to the Motion to Strike [46] is DENIED as MOOT.
NCC seeks dismissal of Plaintiff's claims, pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting that the Plaintiff has failed to allege an injury in fact sufficient to confer Article III standing. Alternatively, NCC seeks summary judgment pursuant to Federal Rule of Procedure 56.
NCC firsts seeks to dismiss Abernathy's claims pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting that Abernathy has failed to allege an injury in fact. In his request for relief, Abernathy seeks statutory damages, attorney's fees, and any other relief the Court deems appropriate. NCC argues that because Abernathy seeks only statutory damages and not "actual" damages, he has failed to allege an injury in fact sufficient to confer Article III standing.
Article III of the Constitution confines the federal courts to adjudicating actual "cases" and "controversies." Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). In order to satisfy Article III's standing requirements, a plaintiff must show (1) he has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). However, "the actual or threatened injury required by Art. III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing.'" Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973)).
The FDCPA was enacted to "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. The FDCPA provides that, inaddition to actual damages, "any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to . . . such additional damages as the court may allow, but not exceeding $1,000." 15 U.S.C. § 1692k(a). A prevailing plaintiff may also be entitled to recover costs and reasonable attorney's fees. 15 U.S.C. § 1692k(a)(3).
As Defendant admits, several Courts of Appeal have considered this issue and concluded that consumers may recover statutory damages for violations of the FDCPA even in the absence of any "actual" damages. See Federal Home Loan Mortg. Corp v. Lamar, 503 F.3d 504, 513 (6th Cir. 2007) (); Robey v. Shapiro, Marianos, & Cejda, LLC, 434 F.3d 1208, 1212 (10th Cir. 2006) (); Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 307 (2d Cir. 2003) ( ); Keele v. Wexler, 149 F.3d 589, 593 (7th Cir. 1998) (); Baker v. G.C. Servs. Corp., 677 F.2d 775, 780-81 (9th Cir. 1982) (same). The Court has been presented with no contrary authority.2
Turning to the facts of the instant case, the Court finds that Abernathy has alleged an "injuryin fact" sufficient to maintain Article III standing. In particular, he maintains that NCC violated his rights under the FDCPA by "engag[ing] in . . . conduct the natural consequence of which is to harass, oppress, or abuse" in violation of §1692d, and by using a "false, deceptive, or misleading representation or means in connection with the collection of any debt" in violation of §1692e. The alleged violation of these statutory rights is a sufficient injury in fact to confer standing in this litigation. Warth, 422 U.S. at 500, 95 S. Ct. 2197; Robey, 434 F.3d at 1212. Accordingly, the Court denies NCC's Motion to Dismiss based on Abernathy's purported lack of standing.
Defendant also asserts that, in the alternative, it is entitled to summary judgment under Rule 56. In particular, NCC, relying on the Pollan affidavit, disputes that any message was left on Abernathy's answering machine in the manner alleged by Abernathy.
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