McRobie v. Credit Prot. Ass'n
| Decision Date | 11 March 2020 |
| Docket Number | No. 5:18-cv-00566,5:18-cv-00566 |
| Parties | ELIZABETH MCROBIE, on behalf of herself and all others similarly situated, Plaintiff, v. CREDIT PROTECTION ASSOCIATION, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Plaintiff's Partial Motion for Summary Judgment as to Count II, only—GRANTED
This is a class action1 commenced for the alleged violation of several provisions of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("the FDCPA"). Plaintiff Elizabeth McRobie, an alleged debtor, contends that a mailer she received from Defendant Credit Protection Association ("CPA"), a debt-collection agency, violated the FDCPA both in the mailer's form and substance. Count I of McRobie's Amended Complaint asserts that the mailer is a "post card" in violation of 15 U.S.C. § 1692f(7), which prohibits "[c]ommunication with a consumer regarding a debt by post card." See Plaintiff's Amended Complaint ("Am. Compl.") [ECF No. 38] ¶¶ 42-45. Count II of the Amended Complaint asserts that the mailer unlawfully displayed a numerical code on its exterior, in violation of 15 U.S.C. § 1692f(8), which prohibitsuse of "any language or symbol, other than the debt collector's address, on any envelope when communicating with a consumer by use of the mails."2 See id. ¶¶ 46-49.
Discovery has concluded, and both parties have cross-filed for summary judgment. McRobie moves for summary judgment only as to Count II of the Amended Complaint, see ECF No. 57, while CPA moves for summary judgment as to both Counts I and II, see ECF No. 59. For the reasons set forth below, CPA's motion for summary judgment is denied as to both Counts I and II of the Amended Complaint, and McRobie's motion for summary judgment as to Count II of the Amended Complaint is granted.
CPA is a third-party collection agency that collects past-due consumer debt on behalf of the telecommunications, tolling, and utilities industries. Plaintiff's Statement of Undisputed Material Facts ("Pl.'s SOMF") [ECF No. 57-2] ¶ 2. McRobie is an adult individual who allegedly incurred a financial obligation to MetroCast Communications ("MetroCast") in the amount of $52.84. Defendant's Statement of Undisputed Material Facts ("Def.'s SOMF") [ECF No. 60] ¶ 1; Pl.'s SOMF ¶ 1. This alleged debt was sent by MetroCast to CPA for collection. Pl.'s SOMF ¶ 3; Def.'s SOMF ¶ 2.
Thereafter, CPA forwarded a request to National Data Services, Inc. ("NDSI"), a vendor with whom CPA contracts to generate and mail communications attempting to collect debts like the communication sent to McRobie. Def.'s SOMF ¶¶ 3, 6-7. Under the vendor agreement between NDSI and CPA, NDSI prints, folds, and mails debt-collection communications upon the request of CPA, using templates created by CPA. Def.'s SOMF ¶¶ 4, 8, 10; Pl.'s SOMF ¶¶ 5-6. The mailer sent to McRobie was, pursuant to the relevant CPA template, intended to consist of two "cards" glued together, with information pertaining to an individual's alleged debt contained on the inside of the two "cards" and out of public view.4 Def.'s SOMF ¶ 9; Plaintiff's Response to Defendant's SOMF ("Pl.'s Resp.") [ECF No. 71-2] ¶ 9. Additionally, the CPA template for the "double card" mailer sent to McRobie has a fourteen-digit numerical sequence containing a six-digit "client code" or "client number" on the exterior of the mailer. Def.'s SOMF ¶ 11; Pl.'s SOMF ¶ 9. This number represents the original creditor associated with the specific debt that a given mailer is attempting to collect. Pl.'s SOMF ¶ 10. The number does not, on its face, communicate anything with respect to an alleged debtor in particular (for example, a debtor'saccount with the creditor).5 Def.'s SOMF ¶¶ 38-39. To access the underlying information represented by the client number—the identity of a particular creditor—an individual would have to have access to CPA's internal list of client codes.6 Def.'s SOMF ¶ 38.
Following CPA's request, NDSI generated the mailer that was sent to McRobie from a template created by CPA for collection communications specific to MetroCast debts. Def.'s SOMF ¶¶ 4, 10; Pl.'s SOMF ¶¶ 5-6. The exterior of the mailer that was sent to and received by McRobie appears as follows:
Image materials not available for display.Pl.'s SOMF ¶ 8. The exterior of the mailer displays the "client code" or "client number" in the lower left-hand corner, which in McRobie's case is associated with MetroCast, the original creditor on her alleged debt. Id. ¶¶ 9-10.
McRobie filed the initial Complaint in this action on February 2, 2018, in which she asserted a single cause of action for violation of 15 U.S.C. § 1692f(7). See ECF No. 1. CPA Answered the Complaint on or about April 9, 2018, following a stipulated extension of time to do so. See ECF No. 6. Counsel appeared before the Undersigned for a Rule 16 conference on May 31, 2018, at which time a discovery schedule was put into place. See ECF Nos. 9-10. On August 29, 2018, McRobie filed a motion to amend her Complaint based upon information obtained during the course of discovery, see ECF No. 22, and several days thereafter, on September 4, 2018, she filed a motion for class certification, see ECF No. 23. Both motions were opposed by CPA. See ECF Nos. 26, 32.
On October 30, 2018, this Court issued an Opinion granting, in part, McRobie's motion to amend her Complaint. See ECF No. 36. The Court allowed her to plead a claim of violation of 15 U.S.C. § 1692f(8) (Count II); however, the Court denied her attempt to plead a claim of violation of 15 U.S.C. § 1692e(9) (proposed Count III), finding her proposed cause of action failed to state a viable claim for relief. See id.
On April 3, 2019, the Court granted McRobie's motion for class certification, certifying a class consisting of "[a]ll natural persons residing in Pennsylvania, New Jersey and Delaware to whom Defendant CPA mailed a postcard, substantially similar to the Postcard sent to Plaintiff, in an attempt to collect a debt, where the postcard was not returned as undeliverable." ECF No. 43. The Court only certified this class as to Count II of the Amended Complaint. See id.
Following extensions of time to complete discovery and file dispositive motions, the instant summary judgment motions and related papers were filed between November 4, and December 4, 2019. See ECF Nos. 57-76.
Rule 56(a) of the Federal Rules of Civil Procedure provides that a "court shall grant summary judgment 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The moving party bears the initial burden of establishing that no genuine issue of material fact exists. Bacon v. Avis Budget Grp., Inc., 357 F. Supp. 3d 401, 412-13 (D.N.J. 2018). In determining if the moving party has satisfied this burden, the Court is obliged to construe all facts and factual inferences in the light most favorable to the non-moving party. See United States ex rel. Simpson v. Bayer Corp., 376 F. Supp. 3d 392, 401 (D.N.J. 2019); Boyle v. Cty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by 'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Bacon, 357 F. Supp. 3d at 413 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Where the movant shows a prima facie entitlement to summary judgment, the burden shifts to the non-movant to point to record evidence creating a genuine issue of material fact. See FED. R. CIV. P. 56(e); Davis v. Quaker Valley Sch. Dist., No. 13-1329, 2016 WL 912297, at *8 (W.D. Pa. Mar. 10, 2016), aff'd, 693 F. App'x 131 (3d Cir. 2017). "[T]he non-moving party may not merely deny the allegations in the moving party's pleadings; instead he must show where in the record there exists a genuine dispute over a material fact." Gibson-Reid v.Lendmark Fin. Servs., LLC, No. 2:19-CV-02859, 2019 WL 4139034, at *1 (E.D. Pa. Aug. 30, 2019) (quoting Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007)); see Schoch v. First Fid. Bancorp., 912 F.2d 654, 657 (3d Cir. 1990) (). Summary judgment is mandated where a non-moving party fails where "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).7
McRobie moves for summary judgment as to Count II of the Amended Complaint based on the contention that the "client number" displayed on the exterior of the mailer she received from CPA is a per se violation of 15 U.S.C. § 1692f(8). See generally Plaintiff's Memorandum in Support of her Motion for Summary Judgment ("Pl.'s Mem.") [ECF No. 57-1]. Section 1692f prohibits the use of "unfair or unconscionable means to collect or attempt to collect any debt," and § 1692f(8) defines "unfair or unconscionable means" to include "any language or symbol, other than the debt collector's address, on any envelope when communicating with a consumer by use of the mails." 15 U.S.C. § 1692f(8). McRobie argues that the "client number" on CPA's mailer falls squarely within § 1692f(8)'s prohibition. S...
To continue reading
Request your trial