Wright v. Target Corp.

• Decision Date: 14 December 2015
• Docket Number: Case No. 14-cv-3031 (SRN/HB)
• Parties: Sean Wright, Plaintiff, v. Target Corporation, Defendant.
• Court: U.S. District Court — District of Minnesota

Sean Wright, Plaintiff, v. Target Corporation, Defendant.

Case No. 14-cv-3031 (SRN/HB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

December 14, 2015

MEMORANDUM OPINION AND ORDER

Mark T. Lavery, Hyslip & Taylor LLC LPA, 1100 W. Cermak, Suite B410, Chicago, Illinois 60608; J.D. Haas, J.D. Haas & Associates PLLC, 9801 Dupont Avenue South, Suite 430, Bloomington, Minnesota 55431, for Plaintiff.

Brian Melendez, Dykema Gossett PLLC, 4000 Wells Fargo Center, 90 South Seventh Street, Minneapolis, Minnesota 55402, for Defendant.

SUSAN RICHARD NELSON, United States District Judge

This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment [Doc. No. 19] and Defendant's Motion for Summary Judgment [Doc. No. 31]. For the reasons set forth below, the Court denies both motions.

I. BACKGROUND

Plaintiff Sean Wright brings this suit against Defendant Target Corporation ("Target") alleging that Target contacted Plaintiff on his cellular telephone, in violation of the Telephone Consumer Protection Act (TCPA). (See Compl. ¶¶ 24-27 [Doc. No. 1].) In April 2013, Wright, a resident of West Virginia, signed a Joint Account Request and Agreement ("Joint Account Agreement"), in which he agreed to be added to an existing Target credit card account that was issued in the name of his former wife. (Joint Account Agreement, Ex. F to Lavery Cert. [Doc. No. 22-6 at 15].) The Target credit card was serviced by Target Corporation's subsidiary Target Corporate Services, Inc., which provides collection services on Target credit card accounts. (Wolf Decl. ¶ 1 [Doc. No. 34].)

The Joint Account Agreement included the following statement:

You are requesting that you be added to the account referenced above as a joint accountholder and that a credit card be issued to you. You agree to be bound by the Credit Card Agreement that will be sent to you along with your credit card and you, jointly and individually, promise to pay and be liable for, all amounts charged to the account under the terms set forth in the Credit Card Agreement. . . . Once you are added to the above referenced account as a joint accountholder you become a permanent joint accountholder and your name cannot be removed in the future.

(Joint Account Agreement, Ex. F. To Lavery Cert. [Doc. No. 22-6 at 15].) The Joint Account also included a statement, in bold-face type, concerning telephone communications from Target:

YOU CONSENT TO RECEIVING AUTODIALED AND PRERECORDED MESSAGE CALLS FROM US, OR THOSE ACTING ON OUR BEHALF OR TARGET CORPORATION, ITS AFFILIATES OR THOSE ACTING ON TARGET'S BEHALF, AT ANY MOBILE TELEPHONE NUMBER YOU PROVIDE.

(Id.) Directly below the bold-face section quoted above, Wright provided the number XXX-XXX-5651 (id.), which was his mobile telephone number. (Pl.'s Am. Resp. to Def.'s Req. for Admission, ¶ 7, Ex. C to Lavery Cert. [Doc. No. 22-3].)

The Target Consumer Credit Agreement applicable to Wright's Target credit card account also contained the following provisions:

12. COMMUNICATIONS WITH YOU - We or our agents may call by telephone regarding your Account. You agree that we may place such callsusing an automatic dialing/announcing device. You agree that we may make such calls to a mobile telephone or other similar device. You agree that we may, for training purposes or to evaluate the quality of our service, listen to and record phone conversations you have with us.

13. WHAT LAW APPLIES - This Agreement will be governed by federal law and to the extent state law applies, by the law of South Dakota. If there is any conflict between any of the terms and conditions of this Agreement and applicable federal or state law, this Agreement will be considered changed to the extent necessary to comply with the law.

***

17. CHANGES TO THIS AGREEMENT - We have the right to change this Agreement (including the right to add additional terms) and to apply those changes to any existing balance on the Account as permitted by law. We will provide you with notice of any such changes as required by applicable law.

(Target Consumer Credit Agreement, Ex. F to Lavery Cert. [Doc. No. 22-6 at 19].)

In April 2014, Target began phoning Wright's cell phone number regarding an outstanding balance on the Target credit card account. (Answer ¶ 10, Ex. A to Lavery Cert. [Doc. No. 22-1].) Target admits that it used an automated dialing system to call Wright on this occasion (id. ¶ 11), and multiple occasions, for non-emergency purposes. (Id. ¶ 25.) During an April 29, 2014 call, Wright informed Target that the account was not his and that he would not be making any payment on the account. (Wolf Decl. ¶ 14 [Doc. No. 34].)

Target subsequently autodialed Wright's cell phone on May 14, 21, and 31, 2014. (Id. ¶¶ 15-17; see also Target Log, Ex. F to Lavery Cert. [Doc. No. 22-6 at 114].) Defendant avers that during the May 21, 2014 call, Wright repeatedly denied any obligation to pay the balance due on the Target account. (Answer ¶ 16, Ex. A to LaveryCert. [Doc. No. 22-1].) A transcript of that recorded call reflects Wright's dispute about whether he authorized that his name be added to the account:

Wright: I want proof of my signature and my authorization and your organization has yet failed to provide that to me.

Target: Okay

Wright: If you could provide me with something that says I authorized my name to be associated with the account, I will pay it in full right now. Otherwise if you cannot provide that proof, I am not legally responsible for it, so -

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Target: Sir, the thing - here's the deal.

Wright: (inaudible) authorized and keep interrupting me.

Target: Here's the deal. You're four months past due. This is affecting your credit.

A: (inaudible) cease communication until you provide legal verification of the debt to me.

Target: Right now, sir, you're going further past due.

Wright: (inaudible) [provides address]. Have a nice day.

(End of audio recording.)

(Transcript of 5/21/14 Call, Ex. G to Lavery Cert. [Doc. No. 22-7].) Target's records confirm that Target called Wright on May 21, 2014 and indicate that Wright refused to promise to pay the account balance. (Def.'s Inquire Account Event Detail, Ex. F to Lavery Cert. [Doc. No. 22-6 at 81].)

Following the May 21, 2014 call, Target's records show that it phoned Wright's cell phone using an autodialing mechanism on the following occasions:

(1) May 27, 2014 (Def.'s Inquire Account Event Detail, Ex. F. to Lavery Cert. [Doc. No. 22-6 at 80]; Target's Log, Ex. F to Lavery Cert. [Doc. No. 22-6 at 114]);

(2) May 28, 2014 (id.);

(3) May 29, 2014 at 10:51 a.m. (Target's Log, Ex. F to Lavery Cert. [Doc. No. 22-6 at 114]);

(4) May 29, 2014 at 11:02 a.m. (Def.'s Inquire Account Event Detail, Ex. F to Lavery Cert. [Doc. No. 22-6 at 80]; Target's Log, Ex. F. to Lavery Cert. [Doc. No. 22-6 at 114]);

(5) May 30, 2014 (id.);

(6) May 31, 2014 (Target's Log, Ex. F to Lavery Cert. [Doc. No. 22-6 at 114]; TSYS Archived Notes, Def.'s Ex. C [Doc. No. 36-3 at 8]);

(7) June 3, 2014 at 7:48 a.m. (Target's Log, Ex. F to Lavery Cert. [Doc. No. 22-6 at 114]);

(8) June 3, 2014 at 3:39 p.m. (Def.'s Inquire Account Event Detail, Ex. F to Lavery Cert. [Doc. No. 22-6 at 78]; Target's Log, Ex. F. to Lavery Cert. [Doc. No. 22-6 at 114]);

(9) June 4, 2014 at 7:44 a.m. (Target's Log, Ex. F to Lavery Cert. [Doc. No. 22-6 at 114]);

(10) June 4, 2014 at 2:00 p.m. (Def.'s Inquire Account Event Detail, Ex. F to Lavery Cert. [Doc. No. 22-6 at 77]; Target's Log, Ex. F to Lavery Cert. [Doc. No. 22-6 at 114]);

(11) June 5, 2014 (Target's Log, Ex. F to Lavery Cert. [Doc. No. 22-6 at 114].)

During Target's May 31, 2014 autodialed call to Wright's cell phone, Wright told Target's representative to speak to his lawyer, although Defendant contends that Wright hung up without giving the lawyer's name or contact information. (Wolf Decl. ¶ 17 [Doc. No. 34].) Target's call records for this call indicate that "[WRIGHT] IS GOING THROUGH A DIVORCE AND DID NOT KNOW HIS WIFE ADDED HIM TO THE ACCT. [WRIGHT] STATE [sic] SPEAK TO LAWYER AND HUNG UP ON ME DURING CALL." (Def.'s 5/31/14 Inquire Account Event Detail, Ex. F to Lavery Cert. [Doc. No. 22-6 at 79]) (emphasis in original).

After Target's May 31, 2014 call with Wright, his attorney, David Menditto, called Target that same day and asked that Target cease phoning Wright. (Wolf Decl. ¶ 18 [Doc. No. 34].) A Target representative informed Menditto that Target could not speak with him about the account without a power of attorney on file. (Id.) Target's records confirm the phone call with Attorney Menditto, who provided his firm name and phone number. (Def.'s 5/31/14 Inquire Account Event Detail, Ex. F to Lavery Cert. [Doc. No. 22-6 at 79].)

On June 4, 2014, an unidentified third party phoned Target about Wright's account. (Wolf Decl. ¶ 19 [Doc. No. 34].) The Target employee who took the call informed the third party that Target could not speak about the account unless it had a power of attorney on file. (Id.)

Wright filed this lawsuit on July 29, 2014, asserting one cause of action for violation of the TCPA. In its Answer, Target asserts that Wright had expressly consented to the calls. (Answer ¶¶ 28-30 [Doc. No. 8].) While Wright contends that he revoked hisprior express consent, Target argues that revocation is unavailable under the TCPA and that any alleged revocation was ineffective. (Id. ¶ 31.)

On Wright's Motion for Partial Summary Judgment, he asserts that there are no disputed issues of material fact with respect to Target's liability for calls made after May 21, 2014. In opposition to Plaintiff's motion and in support of Defendant's Motion for Summary Judgment, Target argues that Wright expressly consented to receive all calls made by Target and that Wright could not unilaterally revoke his prior express consent, as the consent was embodied in a bilateral contract.

II. DISCUSSION

A. Standard of Review

Summary judgment is proper if, drawing all reasonable inferences in favor of the non-moving party, there is no genuine issue as to any...