Griffiths v. Sentry Credit, Inc., No. 6:2010cv06338 - Document 26 (D. Or. 2011)
Court Description: Opinion & Order: Defendant Sentry Credit's Motion for Summary Judgment 17 is granted and defendant's motion to strike plaintiff's allegations is denied as moot. This case is dismissed and all pending motions are denied as moot. Signed on 8/11/11 by Chief Judge Ann L. Aiken. (ljb)
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Griffiths v. Sentry Credit, Inc. Doc. 26 ;:- IlED -LS t:.~ iG r'i l' 'i ',')c i')'CDC"Wo.c 11= - - . ,'-". J. J.L.I,-r~r l.J IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Gina Griff hs, Civil No. 10 6338-AA OPINION AND ORDER Plaintiff, vs. Sentry t, Inc., Defendant. Joshua gsted Trigsted Law Group, P.C. 5200 SW Meadows Rd., Ste. 150 Lake Oswego, Oregon 97035 Attorney for plaintiff Kirnberlee Walker Olsen Luke, Casteel, & Olsen, PSC 3400 188th St. SW, Ste. 484 Lynnwood, Washington 98037 Jeffery I. Hasson, Esq. Davenport & Hasson, LLP 12707 NE Halsey Street Portland, Oregon 97230 Att for defendant AIKEN, Chief Judge: Plaintiff, Gina Griffiths, asserts that Defendant, Sentry PAGE 1 - OPINION AND ORDER Dockets.Justia.com Credit, Inc. ("Sentry"), violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692d(5), by placing telephone calls to plaintiff with the intent to harass, annoy, or abuse her. For the reasons set forth Defendant moves for summary judgment. below, fendant's summary judgment motion is granted. BACKGROUND This action arises from two telephone conversations between the s and ten to twelve unanswered telephone calls defendant to plaintiff's residence. defined by 15 U.S.C. § 16 col " as defined Plaintiff is a "consumer" as a(6) of the FDCPA. in 15 by U.S.C. § Defendant is a "debt 1692a(6) and contacts individuals using the mail or telephone to collect unpaid debts. Compl. ~ 2. On August 4, 2010, defendant was assigned plaintiff's debt from Household Beneficial Finance in the amount of $8,033.55. Olsen Decl. Ex. 2 at 5. On August 5, 2010, defendant's a call to plaintiff's home. CompI. oyee, R.J. McBride, placed ~ 10. The following is the transcript of the phone call: Mr. McBride: " Credit. I'm calling from Hal It is in re from Sentry to a Household Beneficial matter which was assigned to us sterday and there's a lance of $8,033.55 and this call is being recorded and/or monitored for at ity assurance. This is an to collect a debt by a debt collector and any information obtained will PAGE 2 - OPINION AND ORDER for that purpose. And, Gina, I would most certainly like to help you get the matter resolved here, today, if at all possible. looking at the file here. I'm It looks like this account was opened in May of 2005 and it looks like something happened here towards the beginning of 2009 when the payments ceas na What happened Gina?" ffiths: "Actually, that account is passed its statute so I'm not able to discuss it with you." Mr. McBride: "When you say statute, you mean na ffiths: " "Yes. So I'm sorry. I'm not able to discuss help you with that." Mr. McBride: "Oh." Gina ffiths: "Thank you." Mr. McBride: "You bet. Thank you." Olsen Decl. Ex. 1 at 2 3. Defendant reviewed plaintiff's account and dete ned that the statute of limitations period for that account expires in November 2013. Joint Pret 1 Order 3(e), July 13, 2011. Between August 6, and September 1, 2010, defendant called intiff's residence ten to twelve more times. Order 3(f). ~ 14. Joint Pretrial Plaintiff did not answer any of these calls. During this time, fendant did not leave any messages or attempt to contact plaintiff using any other means. Ex. 2 at 6-7. PAGE 3 OPINION AND ORDER Compl. Olsen Decl. On September 1, 2010, plaintiff placed a call to defendant and asked the representative who answered whether the number she was calling longed to defendant. Olsen Decl. Ex. 1 at 5. After the representative confirmed that number longed to defendant, plaintiff thanked him and hung up without identifying herself. Id. STANDARDS judgment Summary depositions, is appropriate "if the pleadings, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any mat to a judgment as al fact and that t a matter of moving party is entitled law." R. Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T. W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9 th Cir. 1987). such that a reasonable nonmoving party jury could rmines the authent Whether the evidence is return a verdict i ty of a spute. v. Liberty Lobby, Inc., 477 U.S. 242, 248 for the Anderson (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. U.S. 317, 323 (1986). Celotex Corp. v. Catrett, 477 If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. at 324. Special rules of construction apply when evaluating summary PAGE 4 OPINION AND ORDER judgment motions: (1) all reasonable doubts as to the existence of genuine issues of mat al moving all party; and (2) fact in rences resol ved against the should to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630. DISCUSSION Plaintiff alleges that § fendant violated 15 U.S.C. 1692d(5) by placing ten to twelve calls to her residence between August 6, 2010, and September 1, 2010. prohibits a debt collector from Section 1692d of the FDCPA "causing a telephone to ring ... repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." Defendant has provided between plaintiff Michael Mathis, establish that the transcripts and defendant, an employee for as well 15 U.S.C. of both as defendant. § 16 d(5). conversations the testimony The of transcripts fendant was attempting to contact pIa iff in order to inform her of the correct statute of limitations period and not to harass f abuse, or annoy her. Therefore, defendant satisfied its burden by showing an absence of a genuine issue of mater I fact. Plaintiff provided no evidence whatsoever disputing fendant's assertions or setting out facts that show defendant's debt collection act statute. Therefore, ities constitute harassment or abuse under the plaintiff has failed to identify specif facts to support her claim. PAGE 5 - OPINION AND ORDER Instead, plaintiff requests that the Court consider only the call volume to determine that a genuine issue of material fact exists for trial. Although plaintiff correctly identifies some disagreement among district courts as to the specific volume and pattern of calls that allows a plaintiff to raise a triable issue of fact regarding the defendant's intent to annoy or harass, plaintiff fails to note that district courts generally require a high call volume coupled with egregious conduct in order for the court to find harassment. Inc., 505 F. Supp. 864 See Bingham v. Collection Bureau, (D. N.D. 1981) (fourteen calls in a one month period is not harassment but when calls were coupled with the immediate recalling of a debtor a er the debtor hung up, the calls were harassment); Chiverton v. Fed. Fin. Group, Inc., 399 F. Supp. 2d 96, 101 (D. Conn. 2005) (using abusive language is a violation of FDCPA); Kuhn v. Account Control Technology, Inc., 865 F. Supp. 1443, 1453 (D.Nev. 1994) (six phone calls in twenty- four minutes, including immediately recalling the debtor after she hung up on the collector, was harassment). However, merely placing calls, without any other abusive conduct, is not harassment. See Shand-Pistilli v. Prof'l Account Servs., 2011 U.S. Dist. LEXIS 64446 (E.D. Pa. June 16, 2011) (ten calls over seventy-three days was not sufficient by itself to raise a genuine issue of material ct as to defendant's intent making the phone calls); Waite v. Fin. Recovery Servs., 2010 U.S. Dist. LEXIS 133438 (M.D. Fla. Dec. 16, 2010) PAGE 6 - OPINION AND ORDER (placing four calls within a single day without other oppressive conduct did not constitute harassment under § 1692d(5)); Tucker v. CBE Group, Inc., 710 F. Supp. 2d 1301, 1305-1306 (M.D. Fla. 2010) seven calls a s (making no more than e day and not calling back after leaving a message demonstrated that defendant made calls to reach intiff rather than to harass her). Although defendant placed between ten and twelve calls to plaintiff's residence during the riod of August 6, 2010, to September 1, 2010, defendant did nothing else to indicate that intended to annoy, abuse, or harass plaintiff. The Court finds no evidence of an unacceptable volume or pattern of calls and the record is lacking any indication that the defendant engaged in the type of egregious conduct that would raise an issue of triable fact. Plaintiff offered no evidence to show that defendant called at an unreasonable hour or that more than one phone call was made per day. intiff also alleges that she suffered emotional stress as a result of defendant's phone calls; however, her opinion as to whether the Is were harassing is not evidence of defendant's intent. Instead, the evidence suggests that defendant intended to contact plaintiff to inform her of her mistake, rather than to harass her. shows that plaintiff In tion, the evidence led defendant on September 1, 2010, after fendant had placed the ten to twelve telephone calls. During this call, plaintiff inquired whether she was speaking with PAGE 7 - OPINION AND ORDER defendant. This exchange demonstrates who had attempt plaintiff was unsure to contact her previously. inferences drawn from the underlying light most Even when all s are viewed in the e to plaintiff, no reasonable juror could find for plaintiff. Therefore, defendant's motion for summary judgment is granted. CONCLUSION Defendant Sentry Credit's summary judgment motion (doc. 17) is granted and fendant's motion to st allegations is as moot. plaintiff's This case is dismissed and all pending motions are denied as moot. IT IS SO ORDERED. Dated s /1 ---Ih day of Ann Aiken United States st ct Judge PAGE 8 - OPINION AND ORDER
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