Opinion
6:19-CV-06570 EAW
2023-07-26
Joy SALADINO, Plaintiff, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.
Kenneth R. Hiller, Seth Andrews, Law Offices of Kenneth Hiller, PLLC, Amherst, NY, for Plaintiff. Ethan Ostroff, Troutman Pepper Hamilton Sanders LLP, Virginia Beach, VA, Stephen J. Steinlight, Troutman Pepper Hamilton Sanders LLP, New York, NY, for Defendant.
Kenneth R. Hiller, Seth Andrews, Law Offices of Kenneth Hiller, PLLC, Amherst, NY, for Plaintiff. Ethan Ostroff, Troutman Pepper Hamilton Sanders LLP, Virginia Beach, VA, Stephen J. Steinlight, Troutman Pepper Hamilton Sanders LLP, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Plaintiff Joy Saladino ("Plaintiff") brings this action against defendant Portfolio Recovery Associates, LLC (hereinafter, "Defendant" or "PRA"), asserting violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (hereinafter, the "TCPA"), and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (hereinafter, the "FDCPA"). (Dkt. 1). Presently before the Court is Defendant's motion for summary judgment. (Dkt. 25). For the following reasons, Defendant's motion is granted.
BACKGROUND
I. Procedural Background
Plaintiff filed her complaint on July 31, 2019, asserting two claims: (1) violation of the FDCPA, 16 U.S.C. § 1692d(5), for calling Plaintiff on her cellular telephone multiple times, which served to annoy, abuse, and/or harass her, and (2) violation of the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), by initiating telephone calls to Plaintiff's cellular telephone using an automated telephone dialing system and/or using an artificial and/or prerecorded voice to deliver messages without Plaintiff's consent. (Dkt. 1 at 3-5). Plaintiff seeks actual, statutory, and treble damages. (Id. at 5).
The case was initially assigned to the Honorable Michael A. Telesca, United States District Judge. Defendant answered the complaint on September 30, 2019 (Dkt. 4), and the case was referred to the Honorable Marian W. Payson, United States Magistrate Judge, for supervision of discovery (Dkt. 5). After Judge Telesca's death, the case was transferred to the undersigned on March 19, 2020. (Dkt. 14).
On August 18, 2020, Defendant filed an unopposed motion to stay the case pending the United States Supreme Court's decision in Facebook, Inc. v. Duguid, No. 19-511. (Dkt. 15). In Facebook, the Supreme Court was expected to rule directly on the definition of an "automatic telephone dialing system" (also referred to herein as an "ATDS") under the TCPA, as relevant to Plaintiff's second cause of action. (Id. at ¶¶ 1-6). On August 14, 2020, Judge Payson granted the motion to stay the case pending the Supreme Court's decision in Facebook, and directed counsel to provide periodic written status reports. (Dkt. 16; see also Dkt. 17; Dkt. 19). On April 15, 2021, Defendant notified the Court that the Supreme Court had issued an opinion in the Facebook case. (Dkt. 20). Judge Payson directed the parties to submit a jointly proposed amended scheduling order (Dkt. 21), and an amended case management order was issued on April 30, 2021 (Dkt. 23).
Defendant filed a motion for summary judgment on March 24, 2022. (Dkt. 25). The Court issued a scheduling order (Dkt. 26; Dkt. 27), and Plaintiff filed response papers on April 29, 2022 (Dkt. 28). Defendant filed a reply brief on May 13, 2022. (Dkt. 29).
II. Factual Background
The following facts are taken from Defendant's Statement of Material Facts (Dkt. 25-2), Plaintiff's response thereto (Dkt. 28-3), and the exhibits submitted in support of and in opposition to Defendant's motion for summary judgment.
A. Defendant's Acquisition of Plaintiff's Account
On or about December 6, 2009, Plaintiff applied for a Synchrony Bank ("Synchrony") credit card and incurred a financial obligation with Synchrony, bearing account number -8328. (Dkt. 25-2 at ¶ 39; Dkt. 28-3 at ¶ 39). On March 22, 2017, Defendant purchased a Synchrony portfolio that included Plaintiff's -8328 account, which Defendant contends had an outstanding balance of $2,082.02. (Dkt. 25-2 at ¶ 40). Plaintiff denies that the balance owed was $2,082.02. (Dkt. 28-3 at ¶ 40). Defendant began efforts to collect the purported debt. (Dkt. 25-2 at ¶ 41; Dkt. 28-3 at ¶ 41).
In connection with its collection efforts for Plaintiff's Synchrony account, Defendant made telephone calls to telephone numbers ending in -9321, -8429, and -8749. (Dkt. 25-2 at ¶ 42; Dkt. 28-3 at ¶ 42). Defendant states that it obtained the number ending in -9321 from Synchrony when it purchased the account, and it obtained the numbers ending in -8429 and -8749 from a third-party location vendor on April 14, 2017. (Dkt. 25-2 at ¶¶ 43-45). Defendant contends that these three telephone numbers are the only numbers Defendant called in connection with its collection efforts for the Synchrony account. (Id. at ¶ 46).
B. Defendant's Call Technology
The technologies used by Defendant to place phone calls to Plaintiff include the following: (1) the Avaya Proactive Contact; (2) Asimut Click-to-Dial ("Asimut"); and (3) LiveVox Human Call Initiator ("LiveVox HCI"). (Dkt. 25-2 at ¶ 1; Dkt. 28-3 at ¶ 1). The capabilities of each technology are discussed below.
The Asimut technology cannot initiate calls automatically, nor does it use prerecorded or artificial voice messages. (Dkt. 25-2 at ¶¶ 2-3; Dkt. 28-3 at ¶¶ 2-3). To place a call, a PRA representative would begin the Asimut application by clicking a "Click-to-Dial" button. (Dkt. 25-2 at ¶ 4; Dkt. 28-3 at ¶ 4). When logging in to the Asimut job application, the representative is presented with a job list; once the representative clicks on a job, a screen to click-to-dial the next available record appears. (Dkt. 25-2 at ¶¶ 5-6; Dkt. 28-3 at ¶¶ 5-6). When the representative clicks the button, the representative places a call to the phone number that is associated with the record selected for that specific job, and once a call is completed, the representative adds a "call result" to the account record. (Dkt. 25-2 at ¶¶ 7-8; Dkt. 28-3 at ¶¶ 7-8). The technology can place only one call at a time. (Dkt. 25-2 at ¶ 9; Dkt. 28-3 at ¶ 9). Further, the Asimut technology possesses no computing or calculating ability, and it is merely a conduit for information owned by Defendant. (Dkt. 25-2 at ¶ 11; Dkt. 28-3 at ¶ 11). For example, the Asimut technology lacks the capacity to store or produce telephone numbers to be called using a random or sequential number generator, it cannot be modified to store or produce telephone numbers to be called using a random or sequential number generator, and it can only dial telephone numbers from a stored list associated with accounts that Defendant owns. (Dkt. 25-2 at ¶¶ 12-14; Dkt. 28-3 at ¶¶ 12-14).
Similarly, the LiveVox HCI technology cannot initiate calls automatically, and an agent must manually initiate each call and determine the frequency of the calls. (Dkt. 25-2 at ¶¶ 15-16; Dkt. 28-3 at ¶¶ 15-16). LiveVox HCI does not use any predictive or other kind of algorithm to engage in predictive dialing of any kind, and it does not use any statistical algorithm to minimize the time that agents spend waiting between calls or to minimize the occurrence of a consumer answering a call when no agent is available. (Dkt. 25-2 at ¶¶ 17-18; Dkt. 28-3 at ¶¶ 17-18). LiveVox HCI cannot auto-dial, it has no features that permit autodialing, and it cannot be modified to enable autodialing. (Dkt. 25-2 at ¶ 19; Dkt. 28-3 at ¶ 19). LiveVox HCI, as implemented by Defendant, does not have the capacity to produce or store numbers to be called using a random or sequential number generator, nor does it have the capacity to generate random or sequential ten-digit telephone numbers and then dial them. (Dkt. 25-2 at ¶ 20; Dkt. 28-3 at ¶ 20). In other words, it can only dial numbers from a stored list associated with accounts that Defendant owns. (Dkt. 25-2 at ¶ 21; Dkt. 28-3 at ¶ 21). LiveVox HCI does not use an artificial or prerecorded voice. (Dkt. 25-2 at ¶ 22; Dkt. 28-3 at ¶ 22).
Defendant also utilizes Avaya Proactive Contact. (Dkt. 25-2 at ¶ 23; Dkt. 28-3 at ¶ 23). The Avaya technology is reflected on Defendant's call logs by the term "Dialed" and "Asimut Dialed" listed under the Call Method. (Dkt. 25-2 at ¶ 24; Dkt. 28-3 at ¶ 24). Avaya licenses the software to Defendant, and Defendant is not permitted to make changes to the software under the maintenance agreement between it and Avaya. (Dkt. 25-2 at ¶ 25; Dkt. 28-3 at ¶ 25). Defendant's Avaya Technology can only dial phone numbers contained in a list created through Defendant's collection system, called "PRANet." (Dkt. 25-2 at ¶ 27; Dkt. 28-3 at ¶ 27). The list is made up of phone numbers associated with debtor accounts that Defendant owns. (Dkt. 25-2 at ¶ 28; Dkt. 28-3 at ¶ 28). After accounts with an increased likelihood of collection are identified, the telephone numbers associated with these accounts are entered into a computer file known as a "calling list." (Dkt. 25-2 at ¶ 29; Dkt. 28-3 at ¶ 29). The resulting calling list is transmitted directly from PRANet to the Avaya Technology for processing. (Dkt. 25-2 at ¶ 29; Dkt. 28-3 at ¶ 29). Once the calling lists from PRANet are processed by the Avaya Technology, the records associated with the numbers in the calling lists are placed into a "job." (Dkt. 25-2 at ¶ 30; Dkt. 28-3 at ¶ 30). When a PRA representative begins calling debtors, the representative is electronically provided access to one of the jobs that has been previously created, and the accounts within these jobs are called by representatives when they contact debtors about paying their debts. (Dkt. 25-2 at ¶¶ 31-32; Dkt. 28-3 at ¶¶ 31-32).
The Avaya technology does not have the capacity to produce or store telephone numbers using a random or sequential number generator, and it has never had this functionality or capacity. (Dkt. 25-2 at ¶¶ 33-34, Dkt. 28-3 at ¶¶ 33-34). If Defendant desired to dial phone numbers using a random or sequential number generator, Defendant would have to change the current programming of its Avaya technology, which it cannot do. (Dkt. 25-2 at ¶ 35; Dkt. 28-3 at ¶ 35). Defendant is not permitted to make changes to the software under its maintenance agreement with Avaya, and Avaya's software is written in binary code, making it next to impossible for anyone outside of Avaya to reverse engineer and edit. (Dkt. 25-2 at ¶¶ 36-37; Dkt. 28-3 at ¶¶ 36-37). It would make no business sense for Defendant to call random or sequential phone numbers. (Dkt. 25-2 at ¶ 38; Dkt. 28-3 at ¶ 38).
C. Communications with Plaintiff
Defendant made its first call to one of the numbers associated with Plaintiff's account on April 17, 2017, and its last call to any of those numbers on July 30, 2019. (Dkt. 25-2 at ¶¶ 47-48; Dkt. 28-3 at ¶¶ 47-48).
With respect to Plaintiff's telephone number ending in -9321, between April 17, 2017, and July 30, 2019, Defendant attempted to make 242 telephone calls to that number using its Asimut technology. (Dkt. 25-2 at ¶ 49; Dkt. 28-3 at ¶ 49). During that same time period, Defendant attempted to make 169 telephone calls using its LiveVox HCI technology to the telephone number ending -9321. (Dkt. 25-2 at ¶ 50; Dkt. 28-3 at ¶ 50). In the one year prior to the filing of this action, Defendant attempted to make 230 telephone calls using its Asimut and LiveVox HCI technologies to the telephone number ending in -9321. (Dkt. 25-2 at ¶ 51; Dkt. 28-3 at ¶ 51). However, 36 of those 230 calls resulted in a "Busy Signal," eight of those 230 calls resulted in "Dead Air," and one of those 230 calls was to an "Invalid Number," which Defendant contends means that its calling technology did not connect to the telephone number Defendant was attempting to call, and did not cause the telephone associated with that number to ring. (Dkt. 25-2 at ¶¶ 52-53; Dkt. 28-3 at ¶ 52). Accordingly, during the one year prior to filing this action, Defendant contends that only 185 of the calls connected with the - 9321 number in a way that would cause the telephone to ring. (Dkt. 25-2 at ¶ 54).
With respect to calls made to the telephone number ending in -8429, between April 17, 2017, and July 30, 2019, Defendant made 102 telephone calls using its LiveVox HCI technology (Dkt. 25-2 at ¶ 55; Dkt. 28-3 at ¶ 55), with all but one of those calls being made in the one year prior to the filing of this action (Dkt. 25-2 at ¶ 56; Dkt. 28-3 at ¶ 56). However, 85 of those 101 calls were to an "Invalid Number" and one of those 101 calls was made to a "Disconnected" number, which Defendant contends means that only 15 of the calls connected with the -8429 number in a way that would cause the telephone to ring. (Dkt. 25-2 at ¶¶ 57-58; Dkt. 28-3 at ¶ 57).
With respect to calls made to the telephone number ending in -8749, between April 17, 2017, and July 30, 2019, Defendant made 169 telephone calls using its Avaya technology (Dkt. 25-2 at ¶ 59; Dkt. 28-3 at ¶ 59), none of which occurred during the one year prior to the filing of this action (Dkt. 25-2 at ¶ 60; Dkt. 28-3 at ¶ 60).
Thus, according to Defendant, in the one year prior to the filing of this action, it placed a total of 200 calls to the telephone numbers ending in -9321, -8429, and -8749, that connected with those numbers in a way that would cause the telephone associated with them to ring. (Dkt. 25-2 at ¶ 61). Based on these figures, Defendant contends that, in the one year prior to the filing of this action, Defendant made on average 16.66 calls per month, or 3.84 calls per week, when attempting to collect on Plaintiff's Synchrony account. (Id. at ¶ 62). All calls made by Defendant occurred between the hours of 8:00 a.m. and 9:00 p.m. Eastern Standard Time. (Dkt. 25-2 at ¶ 63; Dkt. 28-3 at ¶ 63). Further, Defendant maintains records of every contact with Plaintiff, and it has no record of any communication where Plaintiff instructed Defendant not to contact her. (Dkt. 25-2 at ¶ 64; Dkt. 28-3 at ¶ 64). Defendant's records further reflect that it never left a voicemail message with any of the three telephone numbers, nor did Defendant ever speak to Plaintiff in connection with any of the calls discussed above. (Dkt. 25-2 at ¶ 65; Dkt. 28-3 at ¶ 65). Further, at no time did Defendant use a prerecorded or artificial voice message in any call to Plaintiff. (Dkt. 25-2 at ¶ 66; Dkt. 28-3 at ¶ 66).
DISCUSSION
I. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "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). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec., 475 U.S. at 586-87, 106 S.Ct. 1348). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
II. Plaintiff's TCPA Claim
Defendant argues that it is entitled to summary judgment on Plaintiff's TCPA claim because Plaintiff cannot show that it randomly or sequentially generated her telephone number, as required by the statute. (Dkt. 25-1 at 19). Specifically, Defendant contends that the evidence, including from its expert witness, demonstrates that the Asimut and LiveVox HCI technologies lack the capacity to store or produce random or sequential numbers. (Id. at 21). In addition, Asimut and LiveVox HCI are not capable of "automatic" dialing of any kind. (Id. at 22). Further, Defendant argues that it initiated no calls to Plaintiff using a prerecorded or artificial voice. (Id. at 23). Plaintiff does not oppose this aspect of Defendant's motion for summary judgment. (See Dkt. 24-4 at 1 (Plaintiff "is not submitting opposition to Defendant's motion relative to her claims based on Defendant's alleged violations of the Telephone Consumer Protection Act[.]")).
The Court agrees that Defendant is entitled to summary judgment on Plaintiff's TCPA claim. The TCPA renders it unlawful "to make any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service[.]" 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA defines the term "automatic telephone dialing system" as "equipment which has the capacity - (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1). On April 1, 2021, the Supreme Court decided Facebook, Inc. v. Duguid, 592 U.S. 395, 141 S. Ct. 1163, 209 L.Ed.2d 272 (2021). In that case, the Court resolved a circuit split as to the meaning of the language "automatic telephone dialing system," clarifying that "a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called." 141 S. Ct. at 1173. In doing so, it overruled the Ninth Circuit's interpretation of this language, wherein the Ninth Circuit held that any equipment capable of merely storing numbers and then calling them qualified as an automatic telephone dialing system. Id.; see also Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018). "In other words, the capacity to store and dial phone numbers, without the use of a random or sequential number generator, is insufficient to qualify a device as an ATDS." Bank v. Digit. Media Sols., Inc., No. 22-CV-293(EK)(LB), 2023 WL 1766210, at *1 (E.D.N.Y. Feb. 3, 2023).
Defendant's contention that its calling technologies—the Avaya Proactive Contact, Asimut, and LiveVox HCI—are not automatic telephone dialing systems is undisputed. (See Dkt. 25-2 ¶ 12; Dkt. 28-3 at ¶ 12 ("The Asimut technology lacks the capacity to store or produce telephone numbers to be called using a random or sequential number generator."); Dkt. 25-2 at ¶ 20; Dkt. 28-3 at ¶ 20 ("LiveVox HCI, as implemented by PRA, does not have the capacity to produce or store numbers to be called using a random or sequential number generator, nor does it have the capacity to generate random or sequential ten-digit telephone numbers and then dial them."); Dkt. 25-2 at ¶ 33; Dkt. 28-3 at ¶ 33 ("PRA's Avaya technology does not have the capacity to produce or store telephone numbers using a random or sequential number generator.")); see also Dkt. 25-4 at 5-17 (Expert Report of Alex G. Demczak) & Dkt. 25-3 (declaration of Itina Spellman, Custodian of Records for Defendant) (explaining that these calling technologies do not use a random or sequential number generator, and Defendant did not randomly or sequentially generate any of the three numbers associated with Plaintiff). Further, it is undisputed that Asimut and LiveVox HCI are incapable of automatic dialing. (Dkt. 25-2 at ¶ 2; Dkt. 28-3 at ¶ 2 (the Asimut technology cannot initiate calls automatically); Dkt. 25-2 at ¶ 15; Dkt. 28-3 at ¶ 15 (LiveVox HCI technology cannot initiate calls automatically)).
Accordingly, Defendant is entitled to summary judgment in its favor on Plaintiff's TCPA claim.
III. Plaintiff's FDCPA Claim
The Court now turns to the contested portion of the pending motion—whether summary judgment should be granted on the FDCPA claim. Defendant contends that it is entitled to summary judgment on Plaintiff's FDCPA claim because the volume of the telephone calls to Plaintiff's - 9321 number does not rise to the level of harassing, annoying, or abusive conduct, and Defendant engaged in no other contact that would imply an intent to harass or annoy Plaintiff. (Dkt. 25-1 at 25-26). Defendant cites to cases holding that call volumes similar to those in this case do not amount to a violation of the FDCPA, also noting that the volume of calls alone is usually insufficient to prove an intent to harass. (Id. at 26-28).
In response, Plaintiff contends that the cases cited by Defendant are distinguishable, including because Plaintiff disputed owing the debt by virtue of her filing an answer to a Broome County lawsuit that Defendant commenced to collect the alleged debt. (Dkt. 28-4 at 2-4). Plaintiff further argues that her lack of oral communication was meant to relay that she did not desire to communicate with Defendant. (Id. at 5). In its reply papers, Defendant notes that Plaintiff's argument with respect to her disputing the debt is a theory of liability she did not raise previously and has no support in the case law, and also that Plaintiff's disputing the debt is not a request to cease contact. (Dkt. 29 at 2-5).
Plaintiff's complaint alleges that Defendant "violated 15 U.S.C. § 1692d and 15 U.S.C. § 1692d(5) by calling Plaintiff on her cellular telephone multiple times per week, often multiple times per day from August 2018 through present, the natural consequence of said conduct was to annoy, abuse and/or harass Plaintiff." (See Dkt. 1 at ¶ 27(A)). Section § 1692d provides generally that "[a] debt collector may not engage 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. The provision includes conduct which violates that section, including "(5) Causing 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." Id. § 1692d(5).
"[T]here is no bright line rule for how many calls are sufficient to support an inference of an intent to harass, oppress or abuse," Zurich Am. Ins. Co. v. Ocwen Fin. Corp., 990 F.3d 1073, 1082 (7th Cir. 2021) (citation omitted), and while "[t]he caller's intent is often a jury question . . . '[c]ourts have awarded defendants summary judgment where the volume and pattern of calls demonstrates an intent to contact debtors rather than an intent to annoy, abuse, or harass them[,]' " Ashlund v. I.C. Sys., Inc., No. 3:17CV65 (JBA), 2018 WL 3448163, at *4 (D. Conn. July 17, 2018) (citations omitted). See Andino v. Mercantile Adjustment Bureau, LLC, No. 14-CV-59-JTC, 2016 WL 651930, at *3 (W.D.N.Y. Feb. 18, 2016) ("While the cases reveal some level of disagreement regarding the volume and pattern of calls sufficient to create an issue of fact as to the defendant's intent to annoy, abuse, or harass . . . courts have not hesitated to grant defendants summary judgment where the evidence demonstrates an intent to contact debtors rather than an intent to annoy, abuse, or harass them." (internal citation omitted)); Hinderliter v. Diverisified Consultants, Inc., No. 6:10-CV-1314 (NAM/GHL), 2012 WL 3888148, at *2 (N.D.N.Y. Sept. 7, 2012) ("[c]ase law is not easily summarized, and courts have disagreed as to the volume and pattern of calls sufficient to create an issue of fact on the defendant's intent to annoy, abuse, or harass," but "[a] number of courts have awarded summary judgment to the defendant, even in cases of frequent calls, where the evidence demonstrates an intent to contact the plaintiff and does not support a finding of an intent to annoy, abuse, or harass him"); Chavious v. CBE Grp., Inc., No. 10-CV-1293(JS)(ARL), 2012 WL 113509, at *2 (E.D.N.Y. Jan. 13, 2012) (although the caller's intent is often a jury question, "[c]ourts have awarded defendants summary judgment where the volume and pattern of calls demonstrates an intent to contact debtors rather than an intent to annoy, abuse, or harass them.").
"Whether there is actionable harassment under § 1692d(5) or annoyance turns not only on the volume of calls made, but also on the pattern of calls." Strom v. Nat'l Enter. Sys., Inc., No. 09-CV-0072A(F), 2011 WL 1233118, at *9 (W.D.N.Y. Mar. 30, 2011) (citation and alteration omitted); see also Ashlund, 2018 WL 3448163, at *4 (when assessing a § 1692d(5) claim, " 'courts generally consider the volume and pattern of calls' when determining whether Defendant acted with the requisite 'intent to annoy, abuse, or harass' by making repeated phone calls." (citation omitted)).
For example, harassment may be found where a debt collector immediately phones a debtor after the debtor has hung up or continues to call after the debtor has requested that the debt collector stop calling. In addition, numerous calls on the same day or multiple calls during a short period of time may constitute harassment.Conover v. BYL Collection Servs., LLC, No. 11-CV-6244P, 2012 WL 4363740, at *6 (W.D.N.Y. Sept. 21, 2012) (citations omitted). "Where, however, a debt collector never speaks to a debtor, is never asked to stop calling and never calls the same day after leaving a message, courts will not infer intent to harass." Id. (concluding as a matter of law that "twenty-seven calls over the course of three months does not qualify as harassment").
In cases where courts have concluded that there was no violation of § 1692d(5), they "based their determinations on undisputed evidence of factors such as the following: the plaintiff did not answer most or all of the defendant's telephone calls; the plaintiff did not ask the defendant to stop calling; the defendant did not make numerous calls in a single day; the defendant did not call third parties such as the plaintiff's employer; the defendant did not immediately call back if a plaintiff hung up the telephone; and the defendant did not otherwise engage in egregious conduct." Hinderliter, 2012 WL 3888148, at *2. Therefore, for instance, in Ashlund, the court concluded that 62 calls made over an approximately 90-day period did not create an issue of fact with respect to the plaintiff's § 1692d(5) claim, but rather demonstrated "a mere intent to contact Plaintiff regarding the debt Defendant sought to collect." 2018 WL 3448163, at *5. In doing so, the court noted that no human connection was made. Id. With respect to the pattern of the calls, on only eight occasions did Defendant place more than one call in one day, all of the calls were made at reasonable times, and the calls were never made one directly after another. Id.
Bearing all these considerations in mind, the Court turns to the parties' arguments and the facts of this case. Defendant argues that it placed an average of 16.66 calls per month, or 3.84 calls per week, to the telephone numbers associated with Plaintiff's Synchrony account that actually connected and caused the telephones associated with those numbers to ring. (Dkt. 25-1 at 28; see also Dkt. 25-2 at ¶ 62). In support of this contention, Defendant cites to the declaration of Itina Spellman, its Custodian of Records, and the exhibits attached thereto, wherein Ms. Spellman explains that Defendant maintains a log of all incoming and outgoing calls made on a debtor's account that reflects call details, including the "call result." (Dkt. 25-3 at ¶ 7; see also id. at 21-32).
With respect to Plaintiff's number ending in -9321, Ms. Spellman states that between April 17, 2017, and July 30, 2019, Defendant attempted to make 242 calls using the Asimut technology and 169 calls using the LiveVox HCI technology. (Dkt. 25-3 at ¶¶ 20-21). In the one year prior to the filing of the action on July 31, 2019, Defendant attempted to make 230 telephone calls using the Asimut and LiveVox HCI calling technologies, but only 185 of those calls connected to the -9321 number in a way that would cause the telephone to ring. (Id. at ¶¶ 22, 25). For example, according to Ms. Spellman, when the call resulted in a "busy signal," "dead air," or "invalid number," the calling technology did not connect to the telephone number it was attempting to call and the phone did not actually ring. (Id. at ¶ 24; see also id. at ¶ 23 (explaining that 36 of the 230 calls resulted in a "busy signal," eight of the 230 calls resulted in "dead air," and one of the 230 calls was to an "invalid number")). Plaintiff has not offered any contrary evidence or otherwise disputed that the phone did not ring on those occasions.
With respect to Plaintiff's number ending in -8429, between April 17, 2017, and July 30, 2019, Defendant made 102 telephone calls using its LiveVox HCI technology. (Id. at ¶ 26). In the one year prior to the filing of the action, Defendant made 101 telephone calls using the LiveVox HCI technology, but only 15 of those calls connected with the -8429 number that caused the telephone to actually ring, since 85 of those 101 calls were to an "invalid number," and one of the calls was to a "disconnected number." (Id. at ¶¶ 27-29).
With respect to Plaintiff's number ending in -8749, Defendant made no telephone calls to that number in the year prior to the filing of the action, but it made 169 calls using its Avaya technology to that number between April 17, 2017, and July 30, 2019. (Id. at ¶¶ 30-31).
Accordingly, in the one year prior to the filing of the action, Defendant placed a total of 200 telephone calls to Plaintiff's telephone numbers ending in -9321, -8429, and -8749, which connected with those numbers in a way that would cause the associated telephones to ring. (Id. at ¶ 32). This figure yields that in the one year prior to the filing of the action, Defendant placed an average of 16.66 calls per month, or 3.84 calls per week, while trying to collect on Plaintiff's Synchrony account. (Id. at ¶ 33).
The FDCPA contains a one-year statute of limitations. See 15 U.S.C. § 1692k(d) ("An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.").
In arriving at this figure, Defendant argues that the plain language of § 1692d(5) specifically requires a telephone to "ring" in order to violate the statute, and that a call that does not actually connect and cause a telephone to ring will not annoy or harass the recipient of the call. (Dkt. 25-1 at 28 n.10). Plaintiff does not dispute this point.
Ms. Spellman further states that all the calls were made between the hours of 8:00 a.m. and 9:00 p.m., and Defendant never left of voicemail or even spoke to Plaintiff. (Id. at ¶¶ 34, 36). Further, Defendant maintains records of every contact with Plaintiff, and Defendant has no record of any communication from Plaintiff, whereby Plaintiff instructed Defendant not to contact her. (Id. at ¶ 35).
The Court turns first to addressing the volume and pattern of calls placed by Defendant in an attempt to collect Plaintiff's debt. Standing alone, the volume of calls is high. Even excluding the calls that did not actually cause any phone to ring, Defendant placed 200 calls to Plaintiff over the course of 12 months. The call detail records are attached to Ms. Spellman's declaration (see id. at 22-32), and they show that on some occasions, Defendant placed two calls to Plaintiff within minutes. However, the closely-placed calls were to different telephone numbers. For example, on July 26, 2019, Defendant called Plaintiff at the number ending in -9321 at 10:16 a.m., and then called the number ending in -8429 at 10:22 a.m. (Id. at 22). Further, on many of the occasions on which Defendant called Plaintiff twice in one day, the call result reveals that for at least one of the calls the phone did not ring. For example, on July 12, 2019, Defendant called Plaintiff at the number ending in -8429 at 10:43 a.m., but the call result was "invalid number"—meaning that the phone did not ring. A few minutes later, at 10:46 a.m., Defendant called Plaintiff at the number ending in -9321, with the call result being "no message." (Id.). Therefore, while under some circumstances a defendant's calling the same number multiple times in a row can suggest an intent to harass, see Conover, 2012 WL 4363740, at *6, what is documented here—Defendant's calling one number with no answer, and then calling a different number—suggests an intent to reach Plaintiff, rather than an intent to harass.
Further, despite the high volume of calls in this case, Defendant's calls to Plaintiff were spread over several months, such that the average call volume was less than four calls per week. Courts have granted summary judgment in favor of defendants with higher call volumes. See, e.g., Ashlund, 2018 WL 3448163, at *5 (62 calls over 90-day period); Chavious, 2012 WL 113509, at *2 (36 calls over two months and collecting similar cases).
The Court next considers the substance of Defendant's communications with Plaintiff. It is undisputed that Defendant never spoke with Plaintiff during any of the calls, nor did Defendant leave any messages. (Dkt. 25-2 at ¶ 65; Dkt. 28-3 at ¶ 65). Further, it is undisputed that Defendant maintains records of every contact with Plaintiff, and it has no record of any communication where Plaintiff instructed Defendant not to contact her. (Dkt. 25-2 at ¶ 64; Dkt. 28-3 at ¶ 64).
Put simply, there is no evidence in the record suggesting that Defendant had the intent to harass Plaintiff—as opposed to legitimately attempting to reach Plaintiff about the outstanding debt. For example, there is no evidence that Plaintiff asked Defendant to stop calling any of the three numbers associated with her account, nor is there evidence that Defendant was notified that it could not reach Plaintiff at the relevant telephone numbers. Further, the call detail records reflect that Defendant did not call Plaintiff at the same telephone number several times in a row, nor did Defendant engage in other call patterns suggesting an intent to harass. See Nigro v. Mercantile Adjustment Bureau, LLC, No. 10-CV-1037S, 2013 WL 951497, at *2 (W.D.N.Y. Mar. 12, 2013) ("Even a high call volume will be insufficient to raise a triable issue of fact with respect to this provision where, as here, there is an absence of some indicia of egregious conduct."), rev'd on other grounds, 769 F.3d 804 (2d Cir. 2014); cf. Prewitt v. Wolpoff & Abramson, LLP, No. 05-CV-725S, 2007 WL 841778, at *3 (W.D.N.Y. Mar. 19, 2007) (concluding that there was an issue of fact where the defendant called the plaintiff's residence "as often as four times per day, every day, for a six-month period, and continued to call after Plaintiff indicated that he could not pay the debt" due to financial constraints).
Although Plaintiff states in her declaration that "[t]he calls were a source of annoyance and frustration" for her (see Dkt. 28 at ¶ 15 (hereinafter, "Plaintiff Decl.")), "her opinion regarding whether the calls were harassing is not evidence of [defendant's] intent," see Carman v. CBE Grp., Inc., 782 F. Supp. 2d 1223, 1232 (D. Kan. 2011). Plaintiff does not offer any evidence disputing the information provided by Ms. Spellman, such as contesting the volume or pattern of the calls from Defendant, or disputing whether she had contact with Defendant during any of the calls.
Instead, Plaintiff attempts to create an issue of fact by arguing that she "disputed owing the debt by virtue of her filing an answer to the Broome County lawsuit that the Defendant brought against her in an attempt to collect the alleged debt," and that "[a]fter she filed her answer to the Broome County complaint, the Defendant proceeded to then call her 199 times until she retained an attorney to force the Defendant to cease calling her." (Dkt. 28-4 at 2-3). Plaintiff has attached to her motion papers the answer filed in response to the Broome County complaint. (See Dkt. 28-2). The answer is three pages long, and states in one of the numbered paragraphs that Plaintiff "admit[s] that there is a balance due on the Walmart credit account, but the amount of said balance is disputed." (Id. at 1, ¶ 5). In her declaration, Plaintiff states that she filed her answer to the Broome County lawsuit on August 16, 2018, and she disputed owing the debt in the answer. (See Dkt. 28 at ¶ 7). Plaintiff further states that she did not answer 199 telephone calls from Defendant received after that date because she had already indicated in response to the lawsuit that she disputed the debt, and there was "no reason to speak to them as they knew I was not going to pay this debt per my filing of my answer to their lawsuit." (Id. at ¶¶ 8, 13-14). Plaintiff also confirmed that she did not have contact with Defendant during any of the calls. (See id. at ¶ 11 ("I also never answered any of their calls to me.")).
Plaintiff's answer to the Broome County lawsuit is not mentioned in her complaint, which states without specification that Plaintiff "disputed owing the alleged subject debt with the Defendant." (Dkt. 1 at ¶ 15). Defendant argues that Plaintiff is attempting to constructively amend the complaint by relying on the Broome County lawsuit, and that her case is "limited to an alleged call-frequency-based violation of § 1692d of the FDCPA, as is made clear in Count One of the Complaint." (See Dkt. 29 at 2-3); see also Casseus v. Verizon N.Y., Inc., 722 F. Supp. 2d 326, 344 (E.D.N.Y. 2010) ("As a threshold matter, courts generally do not consider claims or completely new theories of liability asserted for the first time in opposition to summary judgment."). The Court declines to resolve that argument, because even if properly raised, based on the totality of the circumstances, no reasonable jury could conclude that Defendant intended to harass, annoy, or abuse Plaintiff.
As Defendant argues in its reply papers, Plaintiff unpersuasively attempts to argue that her purported dispute of the debt was a request that Defendant cease communications. Nowhere in the Broome County answer is there any suggestion that Defendant should cease contacting Plaintiff, let alone any reference to Defendant's attempts to contact Plaintiff. (See Dkt. 28-2). Moreover, pursuant to the express provisions of the FDCPA, to the extent Plaintiff relies on the Broome County answer to suggest that she was disputing the debt, that dispute was untimely and thus it did not require that Defendant cease collection activity.
The FDCPA, at 15 U.S.C. § 1692g, provides that a consumer may dispute a debt within 30 days of receiving a validation disclosure from the debt collector. Specifically, if the " 'consumer notifies the debt collector in writing within the thirty-day period' provided for in section 1692g(a) that he or she disputes the debt, 'the debt collector shall cease collection of the debt . . . until the debt collector obtains verification of the debt . . . and a copy of such verification . . . is mailed to the consumer by the debt collector.' " Hines v. HSBC Bank USA, No. 15-CV-3082 (CBA)(MDG), 2016 WL 5716749, at *7 (E.D.N.Y. Sept. 30, 2016) (quoting 15 U.S.C. § 1692g(b)); see also Munroe v. Specialized Loan Servicing LLC, No. 14-CV-1883 (MKB)(LB), 2016 WL 1248818, at *6 (E.D.N.Y. Mar. 28, 2016) (explaining that "[a] consumer is not always required to dispute a debt in writing," but that "certain protections of the FDCPA require a consumer to file a written dispute within the validation period," including that if the consumer notifies the debt collector within a 30-day period, the collector must cease collection until the collector verifies the debt). However, "[t]he thirty-day validation period during which a consumer must dispute a particular debt 'is not a "grace period,' " and 'in the absence of a dispute notice, the debt collector is allowed to demand immediate payment and to continue collection activity.' " Id. (quoting Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 135 (2d Cir. 2010)). Plaintiff received an initial notification letter from Defendant, which Defendant's records show was sent on April 7, 2017. (Dkt. 25-3 at 17). However, Plaintiff did not respond to Defendant's lawsuit until August 16, 2018 (see Dkt. 28-2 (Plaintiff's "Answer and Separate Defenses")), which is well beyond the 30-day validation period.
Relatedly, the FDCPA outlines procedures for a consumer's request that a debt collector cease contact. See 15 U.S.C. § 1692c(c) ("If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt . . . ."). "Ongoing contact with a debt holder is permitted unless that debt holder informs the debt collector in writing that he wishes to cease further communications." Sembler v. Attention Funding Trust, No. 07 CV 2493(RJD)(LB), 2009 WL 2883049, at *3 (E.D.N.Y. Sept. 3, 2009) (citing 15 U.S.C. § 1692c(c)), adopted, 2009 WL 3055347 (E.D.N.Y. Sept. 24, 2009). However, "lack of a written request does not preclude a finding that the calls violated the FDCPA," including where the debtor makes a verbal request that the collector stop calling. See Moltz v. Firstsource Advantage, LLC, No. 08-CV-239S, 2011 WL 3360010, at *3 (W.D.N.Y. Aug. 3, 2011). But here, there is no evidence in the record that Plaintiff advised Defendant—either verbally or in writing—to cease contact with her. Rather, as explained above, the only evidence provided by Plaintiff is her answer to the Broome County lawsuit, which did not include a request that Defendant cease contact with her, or state that she refused to pay the debt. See, e.g., Merchant v. Nationwide Recovery Serv., Inc., 440 F. Supp. 3d 1369, 1374-75 (N.D. Ga. 2020) (plaintiff's statements to defendant disputing his responsibility for medical bill and that he would not speak with collection agency was not a request for the debt collector to cease calling him triggering liability for harassment under FDCPA, and further explaining that even if plaintiff did request that the calls cease, this alone would not automatically indicate that defendant intended to harass him, since "courts examining FDCPA claims consider the totality of the circumstances surrounding the call"). Further, the record reflects that when Plaintiff filed the instant lawsuit against Defendant on July 31, 2019—making clear that Defendant's calls were unwanted—Defendant ceased placing calls to Plaintiff. (See, e.g., Dkt. 1; Dkt. 25-2 at ¶ 48; see also Dkt. 28-4 at 3-4).
Plaintiff cites three out-of-circuit cases in support of her position that "courts have held it is [a] question for the jury to determine liability for other similar factual instances where the debtor has clearly indicated their desire to not receive calls and/or disputed owing the debt," including Joseph v. J.J. Mac Intyre Cos., L.L.C., 238 F. Supp. 2d 1158 (N.D. Cal 2002), Kerwin v. Remittance Assistance Corp., 559 F. Supp. 2d 1117 (D. Nev. 2008), and Williams-Platt v. Bureau of Collection Recovery, No. 00-3609 (JRT/FLN), 2011 WL 2633821 (D. Minn. June 15, 2011), adopted, 2011 WL 2622379 (D. Minn. July 5, 2011). (See Dkt. 28-4 at 4-5). These cases are distinguishable, including because the debt collectors continued to contact the plaintiffs after they requested that no further calls be made, asked to be removed from the call list, or informed the collector that they were not the debtor. See, e.g., Williams-Platt, 2011 WL 2633821, at *1, *3 (where the defendant made 83 calls to the plaintiff in 47 days, the plaintiff recalled speaking with the defendant between eight to 10 times, including twice when she asked to be removed from defendant's "call loop," concluding that "the number of calls Defendant made to Plaintiff, along with Plaintiff's contention in her affidavit that she asked to be removed from Defendant's call list, a jury could reasonably find that Defendant placed the calls with the intent to annoy, abuse, or harass"); Joseph, 238 F. Supp. 2d at 1168 (defendant made 200 calls over a 19-month period, and "on some days there were multiple calls made after voice contact in which the Plaintiff requested no further calls be made"). As explained above, Plaintiff made no such request to cease contact in this case. And to the extent that Plaintiff suggests that her lack of communication qualified as a communication to Defendant that she did not desire to communicate regarding her debt (see Dkt. 28-4 at 5), not only does Plaintiff cite no caselaw supporting this proposition, which seems to contradict other provisions of the FDCPA, but no reasonable jury could conclude under the circumstances present here that Plaintiff's lack of communication was actually a communication to cease contact.
The case law indicates that a court should consider a debtor's verbal communication(s) during a call with a debt collector about the status of a debt when assessing whether a defendant had the intent to harass, particularly when the debt collector continues calling the debtor after any such communication. See, e.g., Prewitt, 2007 WL 841778, at *3 (denying summary judgment to defendant, who continued to call the plaintiff after he informed them that he could not pay the debt). However, this is not a situation where Plaintiff spoke with one of Defendant's representatives during a call, informed them that she did not believe she owed the debt or could not pay the entire balance due, and then received several calls from Defendant immediately thereafter. Rather, it is undisputed that Plaintiff never spoke with Defendant. Plaintiff's reliance on a cursory answer to a lawsuit filed in Broome County—in which she in fact admitted that at least some balance was due on her account—does not affect the Court's finding with respect to Defendant's intent in attempting to collect the debt from Plaintiff.
In sum, Defendant has come forth with admissible evidence supporting that its intent in calling Plaintiff was not to harass her, but to collect a debt. Plaintiff has failed to present any evidence creating an issue of fact with respect to the volume or pattern of the phone calls, or with respect to any contact she had with Defendant. The Court concludes that based on the undisputed evidence, no reasonable jury could conclude that Defendant intended to harass, annoy, or abuse Plaintiff, as opposed to merely intending to contact Plaintiff regarding the debt Defendant sought to collect. Accordingly, Defendant is entitled to summary judgment on its FDCPA claim.
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment (Dkt. 25) is granted, and Plaintiff's complaint is dismissed.
SO ORDERED.