Daubert v. NRA Grp., LLC

• Decision Date: 27 May 2016
• Docket Number: CIVIL ACTION NO. 3:15-CV-00718
• Citation: 189 F.Supp.3d 442
• Parties: John Daubert, Plaintiff, v. NRA Group, LLC, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

189 F.Supp.3d 442

John Daubert, Plaintiff,

v.NRA Group, LLC, Defendant.

CIVIL ACTION NO. 3:15-CV-00718

United States District Court, M.D. Pennsylvania.

Signed May 27, 2016

Carlo Sabatini, Brett M. Freeman, Sabatini Law Firm, LLC, Dunmore, PA, for Plaintiff.

Richard J. Perr, Eric Corey Rosenberg, Fineman Krekstein & Harris, PC, Philadelphia, PA, for Defendant.

MEMORANDUM

A. Richard Caputo, United States District Judge

Presently before the Court is a Motion for Partial Summary Judgment as to Liability filed by Plaintiff John Daubert ("Plaintiff" or "Daubert"). (Doc. 24.) In his Complaint, Plaintiff alleges that Defendant NRA Group, LLC ("Defendant" or "NRA") violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), when it mailed him a collection letter that displayed on the envelope a barcode which, when scanned, reveals Plaintiff's account number. Because I find that there is a genuine issue of material fact as to whether Defendant is entitled to statutory immunity with respect to Plaintiff's FDCPA claim, Plaintiff's motion for summary judgment on this claim will be denied. Plaintiff also alleges that Defendant violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), when it placed calls to his cellular telephone using an automatic telephone dialing system. Because I find that there is no genuine issue of material fact as to Defendant's violation of the TCPA, Plaintiff's motion for summary judgment on this claim will be granted.

I. Background

The facts presented in the summary judgment record, viewed in the light most favorable to Defendant, are as follows:

On November 8, 2013, Plaintiff received medical services from Radiology Associates of Wyoming Valley ("Radiology Associates"). (Doc. 32-1, Def. Ex. 1, Radiology Associates Screenshot.) Radiology Associates charged Plaintiff Forty-Six Dollars ($46.00) and Plaintiff's radiology report was forwarded to Medical Billing and Management Services ("MBMS") for coding and billing at some time between November 8, 2013 and November 13, 2013. (Doc. 32-2, Def. Ex. 2, MBMS Affidavit, ¶ 9.) MBMS provides billing services to Radiology Associates and is authorized to send billing statements to Radiology Associates' patients and collect unpaid medical bills on their behalf. (Id. ¶¶ 2-3.)

In addition to receiving Plaintiff's billing information, MBMS was also provided with Plaintiff's phone number. (Id. ¶ 10.) MBMS did not conduct any independent research to obtain Plaintiff's phone number. (Id. ¶ 16.) All of the information provided to MBMS was the same as the information that Radiology Associates had in their system. (Id. ¶ 15.)

Plaintiff's health insurance company contributed Twenty-One Dollars ($21.00) towards the medical expenses on November 26, 2013, leaving Plaintiff with an unpaid balance of Twenty-Five Dollars ($25.00). (Doc. 32-1, Def. Ex. 1, Radiology Screenshot.) On November 28, 2013, MBMS billed Plaintiff for this outstanding balance, and subsequently sent a reminder statement to Plaintiff on January 11, 2014. (Doc. 32-2, Def. Ex. 2, MBMS Affidavit, ¶ 12.) Plaintiff failed to pay the Twenty-Five Dollar ($25.00) balance, and on April 5, 2014, Plaintiff's account was transferred to Defendant for collection purposes. (Id. ¶ 13.) MBMS provided Defendant with Plaintiff's name, address, phone number, account number, and outstanding balance. (Id. ¶ 14.) All of the information that MBMS provided to Defendant was exactly the same as the information that it had been provided when it received Plaintiff's account. (Doc. 32-2, Def. Ex. 2, ¶ 15.) In short, Plaintiff's phone number was provided to Defendant when MBMS placed Plaintiff's account with Defendant for collections. (Doc. 24-5, Pl. Ex. D, Anita Schaar Dep., at 44:9-44:12.) Defendant did not conduct any independent investigation to obtain Plaintiff's Phone Number.

On or about April 9, 2014, Defendant's independent letter vendor, Renkim Corporation, mailed Plaintiff a collection letter with a barcode ("the Barcode") printed near Plaintiff's name and address. (Doc. 25, Plaintiff's Statement of Undisputed Material Facts ("PSUMF"), ¶¶ 6-8, 13 (admitted in Doc. 33); see also Doc. 24-2, Pl. Ex. A, Redacted Letter dated April 9, 2014.) This letter, which was an attempt to collect a debt, was based on a template that had been approved by Defendant. (Doc. 25, PSUMF, ¶¶ 9-10 (admitted in Doc. 33).) The Barcode was visible through a glassine window in the front of the envelope at the time the letter was mailed and delivered. (Doc. 25, PSUMF, ¶ 16 (admitted in Doc. 33); see also Doc. 24-3, Pl. Ex. B, Letter in Envelope.) The Barcode contains no words or phrases, and has an irregular pattern of black and white markings. (Doc. 24-2, Pl. Ex. A.) When viewed with the naked eye, the Barcode does not reveal any information. (Id. ) However, when scanned with a barcode reader specifically designed to read "three of nine" barcodes, Plaintiff's account number is revealed. (Doc. 33, Def. Resp. to PSUMF, ¶ 14; Doc. 24-5, Pl. Ex. D, Anita Schaar Dep., at 26:16-20; 39:16-20.)

As part of its collection efforts, Defendant also placed sixty-nine (69) phone calls to Plaintiff's cellular telephone number. (Doc. 25, PSUMF, ¶¶ 17-19 (admitted in Doc. 33); Doc. 32-3, Def. Ex. 3, NRA Account Notes.) Only one (1) of these sixty-nine (69) phone calls was answered by Plaintiff. (Doc. 33, Def. Resp. to PSUMF, ¶ 48.) All telephone calls originated in the United States. (Doc. 25, PSUMF ¶ 46 (admitted in Doc. 33).) Plaintiff never directly gave Defendant his telephone number, nor did he directly give Defendant consent to receive calls. (Doc. 25, PSUMF ¶¶ 24-25 (admitted in Doc. 33).)

Every phone call to Plaintiff was made using Defendant's Mercury Predictive Dialer (the "Dialer"). (Doc. 25, PSUMF ¶ 29 (admitted in Doc. 33).) The Dialer does not have the capacity to store phone numbers. (Doc. 24-5, Pl. Ex. D, Anita Schaar Dep. Tr., at 78:4-10.) Phone calls are placed by the Dialer through the use of campaigns, which have criteria that will select which accounts, and thus what phone numbers, the Dialer can access. (Doc. 25, PSUMF ¶¶ 32-33 (admitted in Doc. 33).) The creation of these campaigns requires human involvement, namely, they are created by Charlene Sarver, Defendant's Director of Collections. (Doc. 24-5, Pl. Ex. D, Anita Schaar Dep. Tr., at 57:1-3; see also Doc. 32-4, Def. Ex. 4, Charlene Sarver Affidavit [hereinafter "Sarver Affidavit"], ¶ 1.)

On March 13, 2015, Plaintiff initiated the instant action by filing a Complaint asserting violations of the FDCPA against Defendant in the Commonwealth of Pennsylvania, Court of Common Pleas of Luzerne County, Civil Action, Case No. 2015-01734. (Doc. 2.) On April 13, 2015, Defendant removed this case to federal court. (Doc. 1.) On October 2, 2015, Plaintiff filed an Amended Complaint, adding a claim for a violation of the TCPA. (Doc. 22.) On October 8, 2015, Defendant filed an Answer, which included a "prior express consent" affirmative defense to Plaintiff's TCPA claim. (Doc. 23.) On April 6, 2016, Defendant filed an Amended Answer, which added an affirmative defense of statutory immunity to Plaintiff's FDCPA claim. (Doc. 44.) On December 2, 2015, Plaintiff moved for partial summary judgment as to liability on both his FDCPA and TCPA claims. (Doc. 24.) This motion has been fully briefed and is now ripe for disposition.

II. Discussion

A. Legal Standard

Summary judgment shall be granted "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). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wright v. Corning , 679 F.3d 101, 103 (3d Cir.2012) (quoting Orsatti v. N.J. State Police , 71 F.3d 480, 482 (3d Cir.1995) ). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. See Edelman v. Comm'r of Soc. Sec. , 83 F.3d 68, 70 (3d Cir.1996). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See Howard Hess Dental Labs., Inc. v. Dentsply Int'l, Inc. , 602 F.3d 237, 251 (3d Cir.2010). The moving party may present its own evidence or, where the non-moving party has the burden of proof, simply point out to the court that "the nonmoving party has failed to make a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

When considering whether there are genuine issues of material fact, the court is required to "examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter , 476 F.3d 180, 184 (3d Cir.2007). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of...