Sharp v. Ally Fin., Inc., 6:15-CV-06520 EAW

• Decision Date: 10 September 2018
• Docket Number: 6:15-CV-06520 EAW
• Citation: 328 F.Supp.3d 81
• Parties: William Jay SHARP, Plaintiff, v. ALLY FINANCIAL, INC., Defendant.
• Court: U.S. District Court — Western District of New York

328 F.Supp.3d 81

William Jay SHARP, Plaintiff,

v.ALLY FINANCIAL, INC., Defendant.

6:15-CV-06520 EAW

United States District Court, W.D. New York.

Signed September 10, 2018

Kenneth R. Hiller, Seth Andrews, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff.

Jason E. Manning, Troutman Sanders LLP, Virginia Beach, VA, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff William Sharp ("Plaintiff") asserts claims against defendant Ally Financial, Inc. ("Defendant") pursuant to the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 ("TCPA"), and New York State common law, alleging that he received hundreds of harassing telephone calls from Defendant's representatives regarding an automobile loan obtained from Defendant. (Dkt. 1 at 3). Plaintiff, diagnosed with stage four cancer, contends that Defendant continuously contacted him by telephone to harass him about his debt, causing great emotional distress. (Id. at 4-5). Plaintiff died during the pendency of these proceedings. (Dkt. 28). As a result, Kathleen J. Majewski ("Majewski"), who has been appointed the Administratrix of Plaintiff's Estate, seeks to be substituted as party plaintiff in this action. (Dkt. 30).

Presently before this Court are Defendant's motion for summary judgment (Dkt. 26), Plaintiff's motion to substitute (Dkt. 30), Plaintiffs motion for leave to file a supplemental response to Defendant's supplemental memorandum (Dkt. 47; see Dkt. 40), Plaintiff's motion to seal (Dkt. 48), Plaintiff's motion for leave to cite additional authority (Dkt. 51), and Defendant's motion for leave to file supplemental authority (Dkt. 53). Because Plaintiff's TCPA claim did not abate upon his death, and for the additional reasons discussed below, Defendant's motion for summary judgment is denied, Plaintiff's motion to substitute is granted, Plaintiff's motion for leave to file a supplemental response is denied, Plaintiff's motion to seal is denied, Plaintiff's motion for leave to cite additional authority is granted, and Defendant's motion for leave to file supplemental authority is granted.

BACKGROUND

On January 5, 2013, Plaintiff obtained an automobile loan from Defendant. (Dkt. 26-2 at ¶ 1; Dkt. 29-1 at ¶ 1). In October of 2014, Plaintiff was diagnosed with stage four esophageal cancer. (Dkt. 29-9 at 3-4:11-13). Plaintiff began chemotherapy a week after his diagnosis (id. at 4:13), and this treatment lasted until about June 2015 (id. at 5:20). Plaintiff could no longer work while he received treatment, and he primarily relied upon social security disability insurance payments for income. (Id. at 4:14-16). Soon thereafter, Plaintiff fell behind on his loan payments and notified Defendant of his financial circumstances. (Id. at 4-5:16-17).

Beginning in January 2015, Plaintiff was informed that his cancer had spread to his brain, and he began receiving treatment for brain tumors. (Id. at 6:21-22). During that same month, Plaintiff called Defendant to negotiate alternative payment terms, and informed Defendant that he had cancer and was undergoing "chemotherapy and radiation treatment." (Id. at 6-7:23-25).

Plaintiff received telephone calls several days a week regarding his debt. (See id. at 7:25-26). Plaintiff testified that the frequent calls would "really irritate" him and made him "feel even worse." (Id. at 7:27). The calls made him "emotionally stressed" and caused him to "cry[ ] more" and to "worry[ ] more." (Id. ). Plaintiff also testified that Defendant's representatives told him that "if [he] fell behind, that they'd repossess the car." (Id. at 8:30). Plaintiff used the automobile to go to the "hospital on a semi-daily, semi-weekly basis." (Id. at 5:17).

In June 2015, Plaintiff filed a complaint with the New York State Office of the Attorney General ("NYSOAG"), claiming that he had received 24 calls within an 80-minute period on June 19, 2015. (Id. at 9:34; see Dkt. 29-6 (NYSOAG complaint) ). From that point forward, the calls began to subside, and, on July 23, 2015, Defendant issued a letter to Plaintiff, apologizing for the number of calls that had been made by one of its representatives. (Dkt. 29-9 at 9:34-35; see Dkt. 29-7 (Defendant's letter) ). Plaintiff testified that the calls ceased by July 2015. (Dkt. 29-9 at 16:88).

PROCEDURAL HISTORY

Defendant moved for summary judgment, arguing two legal issues. First, Defendant contends that the TCPA claim should be dismissed because it abated upon Plaintiff's death. (Dkt. 26-1 at 2-5).¹ In making this argument, Defendant relies primarily upon the decision in Hannabury v. Hilton Grand Vacations Co., LLC , 174 F.Supp.3d 768 (W.D.N.Y. 2016). The Hannabury court held that a consumer's private right-to-action under § 227(b)(3) and § 227(c)(5) of the TCPA is "penal" in nature, and thus, it extinguishes upon the party's death. Id. at 776. Second, Defendant argues that Plaintiff's intentional infliction of emotional distress ("IIED") claim must be dismissed because Plaintiff was not verbally abused or otherwise threatened by Defendant, and the only harassing conduct alleged consists of the telephone calls themselves. (Dkt. 26-1 at 5-7). In support, Defendant relies heavily upon the Second Circuit's decision in Conboy v. AT & T Corp. , 241 F.3d 242 (2d Cir. 2001), which held that "numerous telephone calls from debt collectors" did not constitute "extreme and outrageous" conduct where the plaintiffs were "not physically threatened, verbally abused, or publicly humiliated in any manner." Id. at 258-59.

Plaintiff opposes Defendant's summary judgment motion, arguing that Hannabury was wrongly decided, and that this Court should hold that the private right-to-action under the TCPA is primarily remedial in nature. (Dkt. 29 at 5-12). Plaintiff also argues that questions of fact preclude summary judgment on his IIED claim because the instant matter involves many more telephone calls than those observed in Conboy , and the fact that Defendant continued to make these calls after discovering that Plaintiff suffered from terminal cancer raises a question of fact as to whether the conduct was sufficiently "outrageous." (Id. at 12-16).

Defendant subsequently filed a motion seeking leave to file a supplemental memorandum in support of its motion for summary judgment. (Dkt. 40). Defendant argues that the Second Circuit's decision in Reyes v. Lincoln Auto. Fin. Servs. , 861 F.3d 51 (2d Cir. 2017) requires that Plaintiff's TCPA claim be dismissed. (Dkt. 40-2 at 2-4). In Reyes , the Second Circuit held that "the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent." 861 F.3d at 56. Defendant argues that Plaintiff consented to the receipt of the telephone calls at issue in this case, and that he never appropriately revoked that consent. (Dkt. 40-2 at 3-4). In opposition, Plaintiff argues that this Court should decline to follow Reyes because it will likely be reversed en banc by the Second Circuit or be overturned by the Supreme Court. (Dkt. 42 at 2-3). Plaintiff also opposes the application of Reyes at this point in the litigation because discovery has not yet concluded, and Plaintiff has not had the opportunity to acquire information necessary to effectively confront this new argument. (Id. at 4-6).

Plaintiff subsequently filed a motion for leave to file a supplemental response to Defendant's supplemental memorandum. (Dkt. 47). Plaintiff argues that the holding in Reyes is inapplicable to the instant matter because the nature of the credit applications involved in securing his automobile loan, as well as the terms of the retail installment contract, indicate that he did not consent to the calls at issue in this case as part of a bargained-for exchange. (Dkt. 47-1). Defendant opposes the motion for leave to file a supplemental response, arguing that Plaintiff did not raise any of these arguments in his initial opposition papers. (Dkt. 49 at 3-4). In addition, Defendant argues that the credit applications involved in this matter are considered contracts under New York State law and Second Circuit precedent, and that the retail installment contract did not contain an integration clause; thus, Reyes remains applicable to this case. (Id. at 4-5). Plaintiff has submitted reply papers opposing the arguments Defendant asserts in its response. (Dkt. 50). Plaintiff has also filed a motion to seal in connection with several documents submitted in support of his motion for leave to file a supplemental response. (Dkt. 48).

On August 15, 2018, Plaintiff filed a motion for leave to cite additional authority, requesting that this Court review the Sixth Circuit's recent decision in Parchman v. SLM Corporation , 896 F.3d 728 (6th Cir. 2018) in determining whether his TCPA claim abated upon his death. (Dkt. 51). Defendant opposes the motion, arguing that Plaintiff's reliance upon Parchman is inapposite and futile. (Dkt. 55).

On August 16, 2018, Defendant filed a motion for leave to file supplemental authority, requesting that the Court consider the decisions in Harris v. Navient Sols., LLC , No. 3:15-CV-564 (RNC), 2018 WL 3748155 (D. Conn. Aug. 7, 2018) and Few v. Receivables Performance Mgmt. , No. 1:17-CV-2038-KOB, 2018 WL 3772863 (N.D. Ala. Aug. 9, 2018) in reviewing Defendant's arguments related to the application of Reyes. (Dkt. 53). Plaintiff opposes Defendant's motion, arguing that the cases supplied by Defendant are irrelevant and do not provide any additional bases justifying the application of Reyes to the facts of this matter. (Dkt. 56).

DISCUSSION

The parties dispute whether the TCPA claim extinguished upon Plaintiff's death. Defendant's first argument in its motion for summary judgment is that Plaintiff's TCPA cause of action extinguished upon Plaintiff's death, and that this claim should not be permitted to proceed upon the substitution of a new party plaintiff. (Dkt. 26-1 at 2-5). Because the Court cannot...