Blue v. Collect America et al, No. 3:2009cv01213 - Document 59 (D. Or. 2010)
Court Description: OPINION AND ORDER: Defendant's motion for partial summary judgment 43 is granted as to the debt collection practices claims before October 14, 2008, and is denied as to the IIED claim. Signed on 11/4/10 by Magistrate Judge Dennis J. Hubel. (see 15-page opinion) (kb)
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Blue v. Collect America et al Doc. 59 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 PORTLAND DIVISION 12 TRAVIS BLUE, 13 14 15 Plaintiff, v. BRONSON and MIGLIACCIO (nka BRONSON, CAWLEY & BERGMANN), 16 Defendant. 17 18 19 20 21 22 23 24 25 26 ) ) ) ) ) ) ) ) ) ) ) No. CV-09-1213-HU OPINION & ORDER E. Clarke Balcom Jay B. Derum CLARKE BALCOM, P.C. 1312 S.W Sixteenth Avenue, 2nd Floor Portland, Oregon 97201 Attorneys for Plaintiff David S. Aman TONKON TORP LLP 1600 Pioneer Tower 888 S.W. Fifth Avenue Portland, Oregon 97204 Attorney for Defendant HUBEL, Magistrate Judge: 27 Plaintiff Travis Blue brings this debt collection practices 28 action against defendant Bronson and Migliaccio, now known as 1 - OPINION & ORDER Dockets.Justia.com 1 Bronson, Cawley & Bergmann. 2 judgment. All parties have consented to entry of final judgment by 3 a 4 Procedure 73 and 28 U.S.C. § 636(c). 5 and deny it in part. Magistrate Judge in accordance 6 7 Defendant moves for partial summary with Federal Rule of Civil I grant the motion in part BACKGROUND Defendant, a law firm located 8 collector. 9 collect a debt owed by plaintiff. in New York, is a debt In the spring of 2008, defendant began trying to From the spring of 2008 through 10 November 2008, defendant had at least twenty-three phone calls with 11 plaintiff and made two phone calls to plaintiff's father in an 12 effort to collect the debt. 13 Defendant's employees allegedly made threatening statements to 14 plaintiff during the calls, including threats to garnish his wages 15 and file lawsuits. 16 from his family and friends to pay the debt. 17 statements that plaintiff considered condescending and abusive, 18 such as calling him "irresponsible." 19 They repeatedly asked plaintiff to get money They also made In August 2008, plaintiff authorized defendant to make monthly 20 withdrawals of $200 from his bank account. Defendant told 21 plaintiff that the withdrawals could be stopped at his request. On 22 September 29, 2008, plaintiff contacted defendant and told one of 23 its employees not to withdraw the $200 that month, which was 24 scheduled for September 30, 2008. 25 defendant's employees that he could not make the payment because if 26 he did, he would not have money to pay for food and rent. During this call, he told 27 However, despite the call, defendant withdrew the $200. 28 result of defendant's withdrawal, plaintiff was unable to pay other 2 - OPINION & ORDER As a 1 bills and incurred bank charges. 2 defendant had withdrawn the money, he contacted defendant. 3 employee told plaintiff they had no record of his call and told him 4 he could not get his money back. 5 with a supervisor who made remarks that plaintiff considered 6 condescending and also threatened to turn the account over to an 7 attorney. 8 9 In addition to calls When plaintiff discovered that An to Plaintiff had a subsequent call plaintiff's father in August 2008. plaintiff, defendant called Plaintiff and his father were 10 very close. 11 very ill with chronic obstructive pulmonary disease. 12 told defendant his father was ill and requested that defendant not 13 call plaintiff's father any more because the calls were upsetting 14 plaintiff's father. It is alleged the calls were so upsetting that 15 they caused him breathing problems. 16 defendant called plaintiff's father again in September 2008. 17 At the time of these calls, plaintiff's father was Plaintiff Disregarding this request, Plaintiff was concerned that the continuing calls to his 18 terminally ill father could hasten his father's death. Plaintiff 19 confronted an employee of defendant's named "Robert," about the 20 calls to his father. 21 never made any calls to plaintiff's father. 22 upsetting to plaintiff because he knew that calls had been made and 23 he feared defendant would continue to call and harass his father. 24 After October 14, 2008, calls to plaintiff by defendant Robert told plaintiff that defendant had 25 occurred on only two dates: 26 This was extremely 2008. 27 28 October 15, 2008, and November 18, As a result of the dealings with defendant, plaintiff suffered a series of anxiety attacks, embarrassment, and shame. 3 - OPINION & ORDER At the 1 time, however, plaintiff was already having anxiety attacks as a 2 result of the financial pressure he was under, regardless of 3 anything defendant may have done. 4 STANDARDS 5 Summary judgment is appropriate if there is no genuine issue 6 of material fact and the moving party is entitled to judgment as a 7 matter of law. 8 initial responsibility of informing the court of the basis of its 9 motion, and identifying those portions of "'pleadings, depositions, 10 answers to interrogatories, and admissions on file, together with 11 the affidavits, if any,' which it believes demonstrate the absence 12 of a genuine issue of material fact." 13 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). Fed. R. Civ. P. 56(c). The moving party bears the Celotex Corp. v. Catrett, 14 "If the moving party meets its initial burden of showing 'the 15 absence of a material and triable issue of fact,' 'the burden then 16 moves to the opposing party, who must present significant probative 17 evidence tending to support its claim or defense.'" Intel Corp. v. 18 Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) 19 (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th 20 Cir. 1987)). 21 designate facts showing an issue for trial. 22 322-23. 23 The nonmoving party must go beyond the pleadings and Celotex, 477 U.S. at The substantive law governing a claim determines whether a 24 fact is material. 25 Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as 26 to the existence of a genuine issue of fact must be resolved 27 against the moving party. 28 Radio, 475 U.S. 574, 587 (1986). 4 - OPINION & ORDER T.W. Elec. Serv. v. Pacific Elec. Contractors Matsushita Elec. Indus. Co. v. Zenith The court should view inferences 1 drawn from the facts in the light most favorable to the nonmoving 2 party. T.W. Elec. Serv., 809 F.2d at 630-31. 3 If the factual context makes the nonmoving party's claim as to 4 the existence of a material issue of fact implausible, that party 5 must come forward with more persuasive evidence to support his 6 claim than would otherwise be necessary. 7 Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); 8 California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, 9 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). 10 Id.; In re Agricultural DISCUSSION 11 In his Second Amended plaintiff brings the 12 following claims: 13 Act 14 Collection Practices Act (OUDCPA), and (3) a claim for intentional 15 infliction of emotional distress (IIED). 16 (FDCPA) (1) Complaint, claim; a federal Fair Debt Collection Practices (2) a claim under Oregon's Unfair Debt In this motion, defendant moves for summary judgment as 17 follows: 18 occurring prior to October 14, 2008, and limiting the claim to the 19 phone calls alleged to have occurred on October 15, 2008, and 20 November 18, 2008, and (2) on the entire IIED claim. 21 I. 22 (1) on the two debt collection claims for any violations Debt Collection Practices Claims Both the FDCPA and the OUDCPA claims are subject to a one-year 23 statute of limitations. 15 U.S.C. § 1692k(d); Or. Rev. Stat. § 24 (O.R.S.) 646.641(3). 25 2009. 26 occurring before October 14, 2008, the claims are time-barred. 27 See Mathis v. Omnium Worldwide, No. CV-04-1614-AA, 2006 WL 1582301, 28 at *1 (D. Or. June 4, 2006) (granting summary judgment to defendant Plaintiff filed this action on October 14, Thus, to the extent the claims are 5 - OPINION & ORDER based on conduct 1 on FDCPA claim to the extent claim was based on communications 2 occurring more than one year before action was filed). 3 Plaintiff concedes this motion. I note that while the parties 4 agree that only phone calls made by defendant to plaintiff on 5 October 15, 2008, and November 18, 2008, are actionable, defendant 6 indicates that there were two phone calls (one on October 18, 2008, 7 and a second one on November 18, 2008), and plaintiff indicates 8 that there were three phone calls (one on October 18, 2008, and two 9 on November 18, 2008). This discrepancy is not an obstacle to 10 resolving the summary judgment motion. Presumably, the evidence at 11 trial will establish how many phone calls occurred after October 12 14, 2008. 13 Additionally, while plaintiff concedes the motion, plaintiff 14 contends that the calls outside the statute of limitations period 15 are 16 limitations period were part of an abusive or harassing pattern. 17 As I explained to the parties at oral argument, I defer resolution 18 of this issue to the pretrial conference, although, as I explained, 19 the evidence may well be admitted with a limiting instruction. See 20 Mathis, 2006 WL 1582301, at *1 (while limiting the debt collection 21 claims to communications occurring within one year of the filing 22 date 23 communications might still be relevant in determining whether the 24 actionable communications violated the FDCPA); see also Pittman v. 25 J.J. MacIntyre Co. of Nev., Inc., 969 F. Supp. 609, 612 (D. Nev. 26 1997) (court expressly held that "while the statute of limitations 27 renders those specific communications between the defendant and the 28 plaintiff prior to September 21, 1994 inactionable, evidence of relevant of the in determining action, 6 - OPINION & ORDER court whether indicated the calls that the within the time-barred 1 these prior communications would certainly be relevant to 2 establishing whether the calls occurring within the limitations 3 period were part of an abusive or harassing pattern."). 4 II. IIED 5 To sustain an IIED claim, plaintiff must show that defendant 6 intended to inflict severe emotional distress, that defendant's 7 acts were the cause of plaintiff's severe emotional distress, and 8 that defendant's acts constituted an extraordinary transgression of 9 the bounds of socially tolerable conduct. McGanty v. Staudenraus, 10 321 Or. 532, 563, 901 P.2d 841, 849 (1995); see also Babick v. 11 Oregon Arena Corp., 333 Or. 401, 411, 40 P.3d 1059, 1063 (2002) (to 12 state an IIED claim under Oregon law, plaintiff must prove, inter 13 alia, 14 transgression 15 (internal quotation omitted). 16 that defendants' of the actions bounds of "constituted socially an extraordinary tolerable conduct.") Conduct that is merely "rude, boorish, tyrannical, churlish, 17 and mean" does not support an IIED claim. 18 Co., 301 Or. 117, 124, 719 P.2d 854, 858 (1986). 19 not provide recovery for the kind of temporary annoyance or injured 20 feelings that can result from friction and rudeness among people in 21 day-to-day conduct causing 22 plaintiff's distress otherwise qualifies for liability." Hall v. 23 The May Dep't Stores Co., 292 Or. 131, 135, 637 P.2d 126, 129 24 (1981); see also Watte v. Maeyens, 112 Or. App. 234, 237, 828 P.2d 25 479, 480-81 (1992) (no claim where employer threw a tantrum, 26 screamed and yelled at his employees, accused them of being liars 27 and saboteurs, then fired them all); Madani v. Kendall Ford, Inc., 28 312 Or. 198, 205-06, 818 P.2d 930, 934 (1991) (no claim where life even 7 - OPINION & ORDER when the Patton v. J.C. Penney intentional "[T]he tort does 1 employee terminated for refusing to pull down pants). 2 3 In a 2008 case, the Oregon Court of Appeals explained the following parameters of the tort: 4 6 A trial court plays a gatekeeper role in evaluating the viability of an IIED claim by assessing the allegedly tortious conduct to determine whether it goes beyond the farthest reaches of socially tolerable behavior and creates a jury question on liability. . . . 7 * * * 8 The classification of conduct as "extreme and outrageous" depends on both the character and degree of the conduct. As explained in the Restatement at § 46 comment d: 5 9 10 "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." 11 12 13 16 Whether conduct is an extraordinary transgression is a fact-specific inquiry, to be considered on a case-by-case basis, based on the totality of the circumstances. We consider whether the offensiveness of the conduct exceeds any reasonable limit of social toleration, which is a judgment of social standards rather than of specific occurrences. 17 House v. Hicks, 218 Or. App. 348, 358-60, 179 P.3d 730, 737-39 18 (2008) (internal quotations and citations omitted), rev. denied, 19 345 Or. 381, 195 P.3d 911 (2008). 14 15 20 Defendant moves for summary judgment on this claim, arguing 21 that its conduct did not transgress the bounds of socially 22 tolerable conduct, and that plaintiff did not suffer emotional 23 distress severe enough to sustain an IIED action. 24 A. Conduct 25 Defendant argues that the alleged conduct does not rise to the 26 level required to sustain an IIED claim. There is no evidence in 27 the record showing that defendant used profanity or threatened 28 violence. While defendant acknowledges that its employees made a 8 - OPINION & ORDER 1 number of persistent and aggressive calls in an effort to collect 2 an 3 plaintiff, 4 plaintiff's 5 condescending 6 conduct was not so outrageous as to justify pursuing an IIED claim. 7 At most, defendant argues, it was "rude, boorish, tyrannical, 8 churlish, and mean," which is not enough to support the claim. 9 undisputed In debt over defendant wages, and Mathis, on period threatened and made abusive, Judge the a to of file statements defendant Aiken time, granted plaintiff's IIED and lawsuits that argues summary claim according and garnish plaintiff that the judgment even to found alleged to though the 10 defendant 11 acknowledged that "[a]busive debt collection telephone calls may 12 support a claim for IIED, see, e.g., Turman v. Central Billing 13 Bureau, Inc., 279 Or. 443, 447-48, 568 P.2d 1382 (1977)," and noted 14 that "the repeated nature of allegedly harassing behavior is 15 relevant to whether conduct is extreme or outrageous." 16 2006 WL 1582301, at *7. Mathis, 17 Judge Aiken explained that 18 . . . plaintiff does not present evidence that Estate Recoveries engaged in abusive, harassing, or other "outrageous" conduct. Plaintiff presents no evidence that Estate Recoveries used profane language, issued threats, or called incessantly at all hours of the day. Rather, Estate Recoveries called plaintiff six or eight times over a period of fourteen months seeking collection of unpaid credit card debts, and plaintiff alleges that one caller engaged in "pressure tactics" when attempting to settle Account 5852. . . . However, this conduct does not suffice to support a claim for IIED. See Conboy v. AT & T Corp., 241 F.3d 242, 258-59 (2d Cir. 2001) ("Plaintiffs were not physically threatened, verbally abused, or publicly humiliated in any manner.... They were only harassed with numerous telephone calls from debt collectors. This conduct is not so outrageous as to go beyond all possible bounds of decency or to be regarded as utterly intolerable in a civilized society.") (quotation marks and citation omitted). 19 20 21 22 23 24 25 26 27 28 Id. (citation omitted). 9 - OPINION & ORDER she 1 In the Turman case, cited by Judge Aiken, the plaintiff 2 initially received an anonymous phone call, informing her that 3 someone from the sheriff's office would be out to her house to 4 serve papers on her and that unless she paid her overdue bill in 5 full to "Central Billing," her husband would lose his job and she 6 could lose her house and everything she owned. 7 446, 568 P.2d at 1384. 8 ophthalmologist from whom the plaintiff received ongoing treatment 9 for a disability. Turman, 279 Or. at The debt owed by the plaintiff was to a Plaintiff worked out a payment plan with the 10 doctor's clinic, despite the defendant having insisted that she not 11 contact the clinic, but deal with "Central Billing" instead. 12 at 447, 568 P.2d at 1384. 13 Id. Despite the payment plan, the defendant continued to call the 14 plaintiff demanding payment. Id. at 447, 568 P.2d at 1385. 15 caller became irate upon learning of the plaintiff's payment 16 arrangements, shouting at the plaintiff and threatening her. 17 Despite the plaintiff's explanations of why she had to maintain 18 good relations with the clinic, the defendant continued to demand 19 immediate payment and to threaten to take away the plaintiff's 20 husband's job and their home. 21 plaintiff was in tears. Id. at 448, 568 P.2d at 1385. The Id. The 22 After calling a friend to come over and keep her company 23 because she was so upset, the defendant's agent called again, while 24 the plaintiff's friend was present. Id. The friend testified that 25 the defendant used swear words and had "quite a vocabulary." 26 The caller continued to use profane and abusive language, including 27 calling plaintiff "scum" and a "dead beat," and told plaintiff she 28 could care less about plaintiff's being blind. 10 - OPINION & ORDER Id. Id. 1 The facts in the instant case fall somewhere between the 2 scenarios present in Mathis and Turman. While I think this is a 3 close question, for the reasons explained below, I agree with 4 plaintiff that the facts at least create a jury question on the 5 issue of defendant's conduct. 6 First, because the IIED claim carries a two-year statute of 7 limitations, the calls to plaintiff's father and the September 2008 8 withdrawal of money from plaintiff's bank account, are properly 9 considered in assessing defendant's liability on this claim. 10 While, as in Mathis, there is no evidence of profane language or 11 calling at hours of the day, a reasonable factfinder could conclude 12 that defendant crossed the boundary into socially intolerable 13 conduct because of the calls to plaintiff's father, especially the 14 call after defendant was on notice that plaintiff did not live with 15 his father, that plaintiff's father was ill, and that calls to 16 plaintiff's father upset his father and exacerbated his symptoms, 17 and because of defendant's unauthorized September 2008 withdrawal 18 from plaintiff's bank account, despite plaintiff's request that 19 defendant hold off on that withdrawal because it would leave 20 plaintiff without money to pay for rent or food. 21 Second, as the House court recognized, the "character and 22 context of particular conduct frames its categorization as 23 outrageous or not." 24 As far as character is concerned, "the illegality of conduct is 25 relevant to, but not determinative of, whether the conduct is 26 sufficiently outrageous to support an IIED claim." Id. at 359, 179 27 P.3d at 737. 28 defendant's conduct actually violated the FDCPA or the OUDCPA, and House, 218 Or. App. at 360, 179 P.3d at 737. I make no judgment at this stage as to whether 11 - OPINION & ORDER 1 I recognize that the pre-October 14, 2008 may not be considered in 2 the assessment of defendant's liability on the debt collection 3 practices claims. 4 concerns about the legality of defendant's conduct to support 5 denying defendant's motion on this issue. 6 As to the But, the summary judgment record raises enough context of the conduct, a debtor-creditor 7 relationship, such as the one here, and as existed in Turman, is a 8 recognized "special relationship" that "imposes on the defendant a 9 greater obligation to refrain from subjecting the victim to abuse, 10 fright, or shock than would be true in arm's-length encounters 11 among strangers." 12 omitted) (citing Turman for the proposition that the debtor- 13 creditor relationship is one type of special relationship). 14 fact that the debtor-creditor relationship is one such "special 15 relationships" is likely a recognition that "[t]he purpose of the 16 FDCPA is to protect vulnerable and unsophisticated debtors from 17 abuse, harassment, and deceptive collection practices." 18 v. RJM Acquisitions LLC, 499 F.3d 926, 938 (9th Cir. 2007); see 19 also Thomas v. U.S. Bank, N.A., No. CV 05-1725-MO, 2007 WL 764312, 20 at *9 (D. Or. Mar. 8, 2007) (describing the FDCPA as the "federal 21 corollary" to the OUDCPA). 22 context of the relationship are relevant to the issue of the 23 outrageousness of defendant's conduct and here, that issue is 24 properly left to the jury's determination. Id. at 360, 179 P.3d at 737 (internal quotation The Guerrero The purpose of the statute and the 25 B. Severity 26 Defendant separately attacks plaintiff's evidence as to the 27 severity of his distress, arguing that it is insufficient as a 28 matter of law to support the IIED claim. 12 - OPINION & ORDER Defendant acknowledges 1 that the summary judgment record shows that defendant's calls 2 caused 3 embarrassment. 4 suffering from anxiety attacks because of his financial troubles 5 and that the nurse practitioner who treated plaintiff could not 6 recall 7 defendant as a basis for treatment. 8 9 plaintiff to suffer anxiety attacks, shame, and But, defendant notes that plaintiff was already plaintiff citing distress caused by phone calls from Defendant relies on Bergin v. North Clackamas School Dist., No. CV-03-1412-ST, 2005 WL 66069, at *23-24 (D. Or. Jan. 12, 2005), 10 where Judge Stewart first set out the relevant law regarding the 11 requisite severity: 12 13 14 15 16 To be severe, distress must be more than mild and transitory. . . . Accordingly, the intensity and duration of a plaintiff's emotional distress are primary factors to determine severity. . . . The distress must be more than hurt feelings. . . . Instead, the distress must be so severe that no reasonable [person] could be expected to endure it. Id. (internal quotation and citations omitted) 17 Next, Judge Stewart noted that there was an issue of fact 18 regarding the source of the plaintiff's depression because the 19 plaintiff conceded that sources other than the defendant's conduct 20 contributed to her depression. 21 assuming that the defendant in the case was primarily responsible 22 for her depression, the plaintiff had still failed to demonstrate 23 that her distress was so severe that no person could be expected to 24 endure it. Id. The plaintiff cried after a meeting and eventually 25 needed to ask for leave in order to deal with her depression. 26 This was not enough to demonstrate severe emotional distress. But, Judge Stewart held, even Id. Id. 27 Plaintiff contends that he experienced severe distress not 28 only because of the calls made directly to him, but also because of 13 - OPINION & ORDER 1 the distress caused by calls to his father which triggered his 2 father's disease symptoms and created fear for plaintiff that his 3 own personal problems may hasten his father's death. Additionally, 4 plaintiff states that defendant's unauthorized withdrawal of funds 5 in September 2008 added to his distress. 6 he has at least created an issue of fact regarding the severity of 7 his distress. 8 9 I agree with plaintiff. Plaintiff contends that The jury could conclude that the primary source of plaintiff's anxiety was plaintiff's financial 10 situation, unrelated to defendant's conduct. 11 conclude that the primary source of his anxiety was defendant's 12 conduct. 13 perhaps more susceptible to distress than other debtors because his 14 financial situation was so dire, as seen by his testimony that the 15 September 2008 withdrawal left him without money for rent or food, 16 and because the calls to his father created an anxiety completely 17 different in kind. 18 ("previous infirm condition"). 19 specific, severe physical symptoms he experienced as part of his 20 anxiety 21 "quaking," being unable to sleep, nausea, and loss of appetite. 22 Pltf's Depo. at p. 20. 23 Id. 24 close question. 25 for the jury. Additionally, the jury may determine that plaintiff was attacks, See Or. Uniform Civ. Jury Ins. No. 70.06 including 28 Finally, plaintiff does attest to being unable to breathe, shaking, He felt like his body was "shutting down." Admittedly, the severity issue, like the conduct issue, is a But, the facts are sufficient to create an issue 26 27 Or, the jury could CONCLUSION Defendant's motion for partial summary judgment [43] is granted as to the debt collection practices claims before October 14 - OPINION & ORDER 1 2 14, 2008, and is denied as to the IIED claim. IT IS SO ORDERED. 3 Dated this 4th day of November , 2010. 4 5 /s/ Dennis J. Hubel 6 Dennis James Hubel United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 - OPINION & ORDER
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