Waite v. Financial Recovery Serv. Inc, CASE NO: 8:09-cv-02336-T-33AEP
| Decision Date | 16 December 2010 |
| Docket Number | CASE NO: 8:09-cv-02336-T-33AEP |
| Parties | ANNETTE WAITE, Plaintiff, v. FINANCIAL RECOVERY SERVICES, INC., Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court pursuant to Defendant Financial Recovery Services, Inc.'s Motion for Summary Judgment (Doc. # 22), filed on August 4, 2010. Plaintiff Annette Waite filed a Response in Opposition to Defendant's Motion for Summary Judgment on August 18, 2010. (Doc. # 23). For the reasons set forth below, Defendant's Motion for Summary Judgment is granted.
This is an action under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. (Doc. # 1 at 1). Section 1692d of the FDCPA prohibits debt collectors from engaging in "any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. Conduct thatconstitutes harassment, oppression or abuse under § 1692d includes, but is not limited to, "[clausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." 15 U.S.C. § 1692d(5).
Plaintiff's Complaint alleges that Defendant violated § 1692d and § 1692d(5) of the FDCPA.1 (Doc. # 1 at 1). Plaintiff asserts that she is a consumer as that term is defined by 15 U.S.C. § 1692a(3) of the FDCPA and that Plaintiff allegedly owes a debt to Defendant, a debt collector as that term is defined by 15 U.S.C. § 1692a(6). Id. at 2-3. Plaintiff alleges that Defendant sought to collect a consumer debt from Plaintiff and Defendant violated § 1692d of the FDCPA by engaging in conduct that the natural consequence of which was to harass, oppress, and abuse Plaintiff in connection with the collection of the alleged debt. Id. Plaintiff contends that Defendant violated § 1692d(5) of the FDCPA by causing a telephone to ring repeatedly andcontinuously with the intent to annoy, abuse, and harass Plaintiff. Id. at 3. Plaintiff's Complaint contains a single factual allegation supporting her § 1692d and § 1692d(5) claims: "Defendant constantly and continuously places collection calls to Plaintiff seeking and demanding payment for an alleged debt...." Id. at 2.
In her Response in Opposition to Defendant's Motion for Summary Judgment, Plaintiff further asserts that between February 6, 2009 and November 19, 2009, Defendant placed 132 collection calls to Plaintiff.2 (Doc. # 23 at 1, 9 n.1).
Defendant asserts that the record before the Court presents no genuine issue of material fact as to Defendant's intent to annoy, abuse, or harass Plaintiff in violation of the FDCPA and moves for summary judgment on Plaintiff's § 1692d and §1692d(5) claims. (Doc. # 22 at 1). Plaintiff argues that Defendant has failed to meet its burden of proving an absence of material fact because Defendant's call volume constitutes a triable question of fact for a jury and that Defendant is therefore not entitled to judgment as a matter of law. (Doc. # 23 at 15).
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a moving party has discharged itsburden, the non-moving party must then 'go beyond the pleadings, ' and by its own affidavits, or by 'depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties' allegations or evidence, the non-moving party's evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party's favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, the court should not grant summary judgment. Samples ex rel. Samples v. City of Atlanta, 84 6 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir. 1988)). However, if the non-movant's response consists of nothing "more than a repetition of his conclusional allegations, " summary judgment is not only proper, but required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981).
In determining liability under § 1692d(5), "[c]ourts have held that '[w]hether there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls.'" Brandt v. I.C. Sys., Inc., No. 8:09-cv-126-T-26MAP, 2010 WL 582051, at *2 (M.D. Fla. Feb. 19, 2010) (quoting Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F. Supp. 2d 492, 505 (D. Md. 2004); Joseph v. J.J. Mac Intyre Cos., LLC., 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002)). Under this section, "[a]ctionable harassment or annoyance turns on the volume and pattern of calls made, irrespective of the substance of the messages." Majeski v. I.C. Sys., Inc., No. 08 C 5583, 2010 WL 145861, at *3 (N.D. Ill. Jan. 8, 2010).
Further, the Eleventh Circuit has held that "claims under § 1692d should be viewed from the perspective of a consumer whose circumstances makes him relatively more susceptible to harassment, oppression, or abuse." Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985).
Plaintiff's § 1692d and § 1692d(5) claims rest squarely on the fact that between February 6, 2009 and November 19, 2009, Defendant placed 132 collection calls to Plaintiff. (Doc. # 23 at 1, 9 n.1). Specifically, Plaintiff asserts that Defendant placed 29 calls in February, 27 calls in March, 13calls in April, 3 calls in May, 7 calls in June, 3 calls in July, 17 calls in August, 20 calls in September, 10 calls in October, and 3 calls in November. Id. at 1-2.
Plaintiff argues that "whether [132] collection calls to Plaintiff in a [9-month] period is excessive is a question of fact for a jury." Id. at 11. Plaintiff further asserts that "[t]here is case law throughout the nation recognizing that whether the nature and frequency of debt collection calls constitute harassment is a factual issue for the jury." Id.
Plaintiff is correct in pointing out that "[o]rdinarily, whether conduct harasses, oppresses, or abuses will be a question for the jury." Jeter, 760 F.2d 1168 at 1179. There is some disagreement among district courts as to the specific volume and pattern of calls that will allow a plaintiff to raise a triable issue of fact regarding the defendant's intent to annoy or harass. See Arteaga v. Asset Acceptance, LLC, No. CV-F-09-1860 LJO GSA, 2010 WL 3310259, at *5 (C.D. Cal. Aug. 23, 2010); Krapf v. Nationwide Credit Inc., No. SACV 09-00711 JVS (MLGx), 2010 WL 2025323, at *3-4 (C.D. Cal. May 21, 2010). However, courts may resolve the question as a matter of law in appropriate cases. Jeter, 760 F.2d 1168 at 1179-80; see Artega, 2010 WL 3310259, at *5 ().
Plaintiff asserts that Defendant's "calls were almost daily." (Doc. # 23 at 3). The Court notes that the volume of calls initially received by Plaintiff, 29 calls in February and 27 calls in March, do appear somewhat high. However, beginning in April, the number of calls significantly taper off, such that the call volume from April through November do not appear notably high and certainly cannot be characterized as occurring on a "daily" basis. Nonetheless, courts have found that even "daily" calls, unaccompanied by other egregious conduct, such as calling immediately after hanging up, calling multiple times in a single day, calling places of employment, family, or friends, calling at odd hours, or calling after being asked to stop, is insufficient to raise a triable issue of fact for the jury. See Saltzman v. I.C. Sys., Inc., No. 09-10096, 2009 WL 3190359, at *7 (E.D. Mich. Sept. 30, 2009) (); Arteaga, 2010 WL 3310259, at *16 ( that "daily" or "nearly daily" phone calls alone fail to raise an issue of fact for a jury to determine whether the conduct violates § 1692d and § 1692d(5)); Tucker v. CBE Grp., Inc., 710 F. Supp. 2d 1301, 1305 (M.D. Fla. 2010) (...
To continue reading
Request your trial