Baemmert v. Credit One Bank, N.A.

• Decision Date: 25 September 2017
• Docket Number: 16–cv–540–jdp
• Citation: 271 F.Supp.3d 1043
• Parties: John BAEMMERT, Plaintiff, v. CREDIT ONE BANK, N.A., Defendant.
• Court: U.S. District Court — Western District of Wisconsin

271 F.Supp.3d 1043

John BAEMMERT, Plaintiff,

v.CREDIT ONE BANK, N.A., Defendant.

16–cv–540–jdp

United States District Court, W.D. Wisconsin.

Signed September 25, 2017

Patrick Joseph Helwig, Peter Francis Barry, Barry & Helwig, LLC, Minneapolis, MN, for Plaintiff.

Matthew Philip Kostolnik, Michael S. Poncin, Moss & Barnett, Minneapolis, MN, for Defendant.

OPINION & ORDER

JAMES D. PETERSON, District Judge

Plaintiff John Baemmert received phone calls attempting to collect credit card debt for defendant Credit One Bank, N.A. Baemmert did not have a Credit One credit card, and he repeatedly informed the callers that they reached the wrong person. But the calls continued, and he received more than 60 collection calls over 12 days. Baemmert sued Credit One, claiming violations of the anti-robocall provision of the Telephone Consumer Protection Act of 1991 (TCPA) and invasion of privacy under Wisconsin law.

Both sides move for summary judgment. Dkt. 9 and Dkt. 15. Baemmert has established that some of the calls were made on Credit One's behalf using an Automatic Telephone Dialing System (ATDS). He has also established that the other requirements for a claim under the TCPA are met, specifically that he incurred charges for the incoming calls. But his evidence does not establish that all the calls were made by ATDS. The court will therefore grant summary judgment to Baemmert on his TCPA claim as to liability, leaving the question of damages, which depends on the number of the ATDS calls, for trial.

As for the state-law invasion of privacy claim, in Keller v. Patterson the Wisconsin Court of Appeals has held that unwanted phone calls are not a basis for an invasion of privacy claim. 2012 WI App 78, ¶¶ 10–11, 343 Wis.2d 569, 819 N.W.2d 841. Accordingly, Baemmert's invasion of privacy claim fails as a matter of law. Because this is a ground not addressed by the parties, the court will, pursuant to Federal Rule of Civil Procedure 56(f), give Baemmert a short deadline to respond to the court's proposed decision to grant summary judgment to Credit One on the invasion of privacy claim.

UNDISPUTED FACTS

The parties' submissions suggest that many facts are in dispute. But for reasons explained in the analysis section, genuine factual disputes are few. The following facts are not genuinely disputed, except where noted.

In January and February 2016, Baemmert received calls from individuals attempting to collect credit card debt for Credit One. Baemmert did not have a Credit One credit card, and Baemmert asked to be removed from the calling list. Baemmert received over 60 such calls within 12 days, as documented by Baemmert's call logs.

Credit One had engaged two vendors, First Contact, LLC, and iEnergizer, to make debt collection calls on its behalf. Both of these vendors called Baemmert without consent. Credit One attempts to dispute that its vendors made calls to Baemmert, but for various reasons its evidence does not raise a genuine dispute that Credit One's vendors called Baemmert.

At least some of the calls were made using an ATDS. Again, Credit One's evidence does not place this fact in genuine dispute. But Baemmert's evidence establishes only that some of the calls used an ATDS. The number of ATDS calls is genuinely disputed.

Sometime in 2015, before the calls at issue were made, Baemmert's cellular service provider, Cellular One, disconnected Baemmert's service for his failure to pay outstanding bills. Dkt. 30 (Baemmert Dep. 37:6–12). So to use his cell phone again, Baemmert downloaded TextMe, a Voice over Internet Protocol (VoIP) application that transmits calls and text messages through the internet. Id. at 40:11–14. The TextMe app allowed Baemmert to use his cell phone only when connected by Wi–Fi to the internet. If someone called Baemmert when he had no internet connection, Baemmert's cell phone would not ring, and he could see the log of missed calls on his phone only when he re-established a Wi–Fi connection. Id. at 37:1, 53:13–18. Baemmert could, however, use his phone to make 911 calls through the cellular system, even without an internet connection.

TextMe used a credit system in which use of the app's various functions depleted a user's credits. In Baemmert's case, he received a limited number of credits for free when he downloaded the app, and he obtained more credits by purchasing them or by watching advertisements. Baemmert adduces his own declaration to show that TextMe charged him for any telephone call, whether inbound or outbound. Credit One adduces a contrary declaration from a TextMe employee, but that declaration is inadmissible because it was not timely disclosed, so Credit One has not raised a genuine dispute that Baemmert was charged credits for the calls at issue.

ANALYSIS

The familiar standards govern the parties' summary judgment motions. A district court must grant summary judgment when no genuine issue of any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the parties cross-move for summary judgment, as they do here, the court "look[s] to the burden of proof that each party would bear on an issue of trial" and "require[s] that party to go beyond the pleadings and affirmatively to establish a genuine issue of material fact." Santaella v. Metro. Life Ins. Co. , 123 F.3d 456, 461 (7th Cir. 1997). The court's role at summary judgment "is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe." D.Z. v. Buell , 796 F.3d 749, 756 (7th Cir. 2015) (quoting Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 920 (7th Cir. 1994) ). The court's only task is to decide "whether, based on the evidence of record, there is any material dispute of fact that requires a trial." Id.

Baemmert asserts two claims against Credit One: a claim under the TCPA's anti-robocall provision, 47 U.S.C. § 227(b)(1)(A)(iii), and an invasion of privacy claim under Wisconsin law, Wis. Stat. § 995.50(2)(a). Both sides move for summary judgment on both claims.

A. TCPA claim

The TCPA prohibits using an ATDS to make a non-emergency call to "any telephone number assigned to a ... cellular telephone service ... or any service for which the called party is charged for the call." 47 U.S.C. § 227(b)(1)(A)(iii). A defendant may raise affirmative defenses, such as consent, but Credit One raises none.

The parties raise four issues as to the TCPA claim: (1) whether Credit One or its vendors called Baemmert; (2) whether Credit One or its vendors used an ATDS; (3) whether the calls were placed to a number assigned to a cellular telephone service; and (4) whether Baemmert incurred charges for the calls.

1. Whether Credit One or its vendors called Baemmert using an ATDS

The court will address the first two issues together. Evidence from both sides shows that at least one of Credit One's vendors called Baemmert using an ATDS, so no reasonable jury could find for Credit One on these issues. Although Credit One insists that neither it nor its vendors could find any affirmative record of a call made to Baemmert, Credit One's evidence fails to raise a genuine dispute of fact.

Baemmert adduces his own testimony that he received many calls from debt collectors who attempted to collect debt for Credit One. Dkt. 11, ¶¶ 43–44. Screenshots of the call logs from Baemmert's cell phone show that Baemmert received calls from 10 numbers that Credit One concedes belong to its vendors. Dkt. 11–1, at 1–19; Dkt. 12–3, at 7. Baemmert also points to a certified transcript of an audio recording from February 3, 2016, when he called one of the collectors back using his home number after having received numerous collection calls on his cell phone. The transcript of the audio recording shows that a representative answered Baemmert's call on behalf of Credit One. Dkt. 18–11, at 2:1–2 ("MALE REPRESENTATIVE: Thank you for calling Credit One Bank."), 4:11–13 ("MR. BAEMMERT: What's the name of this company I'm calling? MALE REPRESENTATIVE: You're calling in Credit One Bank.").

Credit One's own evidence shows the representative from the audio recording was an employee of one of Credit One's vendors, First Contact, LLC. Credit One adduces the declaration of Brendan Lee, A Senior Vice President of First Contact, who states that he searched First Contact's database for audio recordings associated with Baemmert's home phone number and found 13 audio recordings. Dkt. 18–7, ¶ 6. Those 13 recordings include the February 3, 2016 recording discussed above; Credit One played the February 3, 2016 recording during Baemmert's deposition and confirmed that the recording was one of the 13 recordings identified in Lee's declaration. Dkt. 30 (Baemmert Dep. 66:24–82:11, 151:8–152:18). So evidence from both sides shows that at least one of Credit One's vendors called Baemmert on Credit One's behalf.

Baemmert has also shown that First Contact used an ATDS to call him. During the February 3, 2016 call, a First Contact representative indicated that First Contact called Baemmert using a "computerized dialing system." Dkt. 18–11, at 17:21–24. The representative also indicated that Baemmert's number was stored in the system. Id. at 20:13–15. This shows that the debt collectors used an ATDS, which is an equipment that "makes calls from a stored list without human intervention." Sterk v. Path, Inc. , 46 F.Supp.3d 813, 819 (N.D. Ill. 2014). So Baemmert has established that First Contact called him using an ATDS on behalf of Credit One. No reasonable jury could find for Credit One on these issues.

Credit One insists that neither it nor its vendors could locate any record of calling Baemmert. Credit One adduces the following: (1) a declaration of Ryan Hunt, a manager at Credit One, Dkt. 20; (2) its own responses to Baemmert's interrogatories, sworn to by Gary Harwood, a vice president of Portfolio Services at Credit One, Dkt. 12–3; (3)...