Andersen v. Harris & Harris LTD
Filing
57
ORDER signed by Judge J P Stadtmueller on 4/21/14: GRANTING 50 Defendant's Motion for Summary Judgment and DISMISSING this action with prejudice; denying 42 Plaintiff's Motion for Summary Judgment; and, granting in part and denying in part 51 Plaintiff's Motion to Strike. See Order. (cc: all counsel) (nm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEAN A. ANDERSEN,
Plaintiff,
v.
Case No. 13-CV-867-JPS
HARRIS & HARRIS, LTD.,
ORDER
Defendant.
The plaintiff, Dean Andersen, initiated this suit on July 30, 2013.
(Docket #1). He alleges that the defendant, Harris & Harris, Ltd. (“H&H”),
violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §§ 227,
et seq., by using an automated telephone dialing system to place collections
calls to him. (Docket #1, ¶¶ 26–38). The parties filed cross-motions for
summary judgment, under a modified briefing schedule. (Docket #41, #42,
#50). The parties have fully briefed those motions (Docket #43, #48, #54, #56),
and the Court has received ample briefing on Mr. Harris’ recently-filed
motion to strike (Docket #50, #53, #54, #56). The Court thus turns to resolve
the motions, first recounting the pertinent facts, then resolving the motion to
strike before addressing the parties’ cross-motions for summary judgment.
1.
BACKGROUND
Before beginning its discussion of the factual background of this case,
the Court must first discuss Mr. Andersen’s serious failures to follow the
Eastern District’s Civil Local Rules.
1.1
Mr. Andersen’s Failure to Abide by Civil Local Rules
And why beholdest thou the mote that is in the
brother’s eye, but considerest not the beam that is in
thine own eye? Or how wilt thou say to thy brother,
Let me pull out the mote of thine eye; and, behold, a
beam is in thine own eye?
—Matthew 7:3–7:4 (King James)
The Court begins its discussion with a primer on the Civil Local Rules
of the Eastern District of Wisconsin. Civil Local Rule 56 governs submissions
of summary judgment materials. Under Civil Local Rule 56, movants must
file “a statement of proposed material facts as to which the moving party
contends there is no genuine issue and that entitle the moving party to
judgment as a matter of law.” Civil L.R. 56(b)(1)(C). Failure to submit that
statement “constitutes grounds for denial of the motion.” Civil L.R.
56(b)(1)(C)(iii). The nonmovant must then file a response to the movant’s
statement of proposed facts, either admitting or denying each proposed fact,
and listing any additional proposed facts that might require the denial of
summary judgment. Civil L.R. 56(b)(2)(B)(i–ii). Finally, the movant must
reply to any additional facts submitted by the nonmovant, either admitting
or denying those facts. Civil L.R. 56(b)(3)(B). Our local rules are very clear:
“The Court will deem uncontroverted statements of material fact admitted
solely for the purpose of deciding summary judgment.” Civil L.R. 56(b)(4).
Mr. Andersen, through counsel, has not followed any of those rules.1
He barely remembered to file the statement of fact required of him as a
movant for summary judgment under Civil L.R. 56(b)(1)(C). (See Docket #45,
1
This is particularly ironic in light of Mr. Andersen’s earlier attempt to treat
H&H’s late discovery responses as admitted, in spite of H&H’s timely request for
an extension, which Mr. Andersen refused to accommodate. (See Docket #19, #27).
To be sure, H&H’s request for an extension did come later than it should have. But,
at the discovery stage, late responses occasionally occur, and the Court rarely, if
ever, has to get involved. The summary judgment stage, on the other hand, is
higher-stakes: it is the first time the parties are put to their proof. So, it is
particularly ironic that Mr. Andersen wanted a very minimal error on H&H’s
behalf in discovery (compounded, in no small part by Mr. Andersen’s own poor
communication) to be dispositive in this case, while failing to even acknowledge
his own substantial failures in following the important rules governing summary
judgment.
Page 2 of 22
#46). In fact, it was only because H&H’s counsel advised Mr. Andersen’s
counsel of his failure to submit proposed findings of fact that Mr. Andersen’s
counsel did so. (See Docket #56, at 1–2). And then, because that submission
was untimely, he relied on the Court’s granting his motion to file that
submission late. (Docket #45). Had H&H’s counsel not been quite so
upstanding, instead allowing the non-submission to stand, then the Court
would have been within its discretion to deny Mr. Andersen’s motion for
summary judgment outright pursuant to Civil L.R. 56(b)(1)(C)(iii).
Equally troubling is Mr. Andersen’s later failure to file responses to
H&H’s proposed additional facts. The Court realizes that this proceeding
may appear somewhat confusing, because of the modified briefing schedule
(Docket #41), but that is not an excuse for the total failure to file responses to
an opposing party’s statements of fact. Under either Civil L.R. 56(b)(2)(B) and
Civil L.R. 56(b)(3)(B), Mr. Andersen had the obligation to respond to H&H’s
additional proposed facts, and potentially to raise any new proposed
material facts that he believed should persuade the Court to deny H&H’s
separate motion for summary judgment (Docket #50). That is because Mr.
Andersen was acting as both movant and nonmovant at the time he filed his
second brief: his second brief was, in effect, both a reply brief in favor of his
motion for summary judgment and a response brief in opposition to H&H’s
motion for summary judgment. (Docket #41). If nothing else, Mr. Andersen
should have filed responses to H&H’s additional proposed findings. Without
those responses, the Court lacks a firm grasp of the basis for any factual
disputes that Mr. Andersen may rely on in his second brief. Likewise, his
failure to file responses makes it very difficult for H&H to address any
factual disputes in its reply brief—because H&H did not receive full or
formal notice of those factual disputes from Mr. Andersen, its ability to
Page 3 of 22
respond to or explain the importance of those disputes was substantially
diminished.
This District has adopted its Civil Local Rules for a reason. It views
them as best practices, designed to ensure that the parties and the Court best
understand the facts and arguments in each case. Violation of the Civil Local
Rules—particularly when the violation involves submissions to the
Court—are serious, because the violation seriously diminishes the abilities
of the parties and the Court to understand the totality of the situation before
it.
Thus, the Court predominantly agrees with H&H: it must deem
H&H’s additional proposed facts as admitted, as a result of Mr. Andersen’s
failure to respond to them, and pursuant to Civil L.R. 56(b)(4). This is
especially true in light of the fact that Civil L.R. 56(b)(4) states that the “Court
will deem uncontroverted statements of material fact admitted solely for the
purpose of deciding summary judgment” (emphasis added). Moreover, the
Seventh Circuit has routinely noted the importance of allowing district courts
to enforce their local rules: “‘Because of the important function local rules
like [the Northern District of Illinois’ local rule on summary judgment] serve
in organizing the evidence and identifying disputed facts, we have
consistently upheld the district court's discretion to require strict compliance
with those rules.’” Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009)
(quoting FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005);
also citing Koszola v. Bd. of Educ., 385 F.3d 1104, 1109 (7th Cir. 2004); Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) (collecting cases)). To be
sure, Mr. Andersen has raised some potentially-valid objections to the
evidence on which H&H based a number of its additional proposed facts.
The Court will address those objections because it is not fully comfortable
Page 4 of 22
treating facts as admitted if those facts are based upon inappropriate or
inadmissible evidence. Nonetheless, the Court will otherwise treat H&H’s
additional proposed facts as admitted, particularly in recounting this factual
background. The Court will address the evidentiary objections more fully in
a separate section below.
1.2
Factual Background
Mr. Andersen opened an account with WE Energies in December of
2003. (DPFF ¶ 26). In connection with that account, he received utility
services at eleven separate meters (DPFF ¶ 29; PPFF ¶ 1) and agreed to pay
for those services (DPFF ¶ 26).2
Of course, when Mr. Andersen opened his account, he had to provide
personal information, including contact information, such as his cell phone
number. (DPFF ¶ 27). WE Energies’ records reflect that Mr. Andersen called
twice in the month of May, requesting that WE Energies employees call him
back on his cell phone number—(920) 217-2839, which the Court will refer to
as Mr. Andersen’s “cell phone number” for the balance of this opinion,
because it is the number at which Mr. Andersen received the allegedly-illegal
calls in question. (DPFF ¶¶ 34–35). Shortly thereafter, Mr. Andersen called
to change his contact information: he added his cell phone number as his
“Business Phone,” later changing it to his “Cell,” and finally his primary
phone number in WE Energies’ account records. (See DPFF ¶¶ 27–28, 32, 37).
2
The Court will refer to Mr. Andersen’s proposed findings as “PPFF,” and
H&H’s proposed findings as “DPFF.”
Page 5 of 22
WE Energies would not have changed that information unless Mr. Andersen
specifically requested that they do so.3
Mr. Andersen resided at 505 Lake Street, in Waukesha, Wisconsin, and
received utility service from WE Energies at that location. (PPFF, ¶ 1). He
apparently has no recollection of the year that he moved to that address, but
he has used his cell phone number since 2007, prior to the time he moved to
that address. (DPFF ¶¶ 44–45). He eventually was evicted from 505 Lake
Street, and therefore stopped receiving services at that address. (DPFF ¶ 50).
He later stopped paying his account entirely, on July 7, 2011. (DPFF
¶ 41). At that time, WE Energies hired H&H to collect Mr. Andersen’s debt.
(DPFF ¶ 42). In connection with that collection, WE Energies provided H&H
with the primary phone number listed on Mr. Andersen’s account: his cell
phone number, (920) 217-2839. (DPFF ¶ 42).
H&H started collections calls to that phone number in October of 2011.
(PPFF ¶ 2). It primarily used a TouchStar dialing system, which
automatically calls phone numbers and then leaves artificial, prerecorded
3
Pursuant to WE Energies' business practices, WE Energies cannot change
a customer's contact information unless the customer requests so. (See DPFF ¶¶ 28,
38). In fact, before allowing a customer to change any contact information, WE
Energies first requires that the customer provide personally identifying
information, such as an account number, social security number, phone number,
or other information associated with the account. (DPFF ¶¶ 28, 38). WE Energies
does not use skip tracing, caller ID, or other methods for obtaining phone number
information from customers or third parties—rather, it obtains phone numbers only
from the customers themselves. (DPFF ¶¶ 39–40). Mr. Andersen asserts that he
believes that his landlord gave his number to WE Energies (DPFF ¶ 55), but this
would not be consistent with WE Energies’ business practices nor is it supported
in any way by any evidence. Like so much of Mr. Andersen’s testimony, it is vague,
self-serving, unsupported, and totally reliant on supposition. Frankly, for a person
who cannot remember his correspondence with WE Energies (DPFF ¶ 49)
and—more incredibly—the approximate date of his move to a new residence (DPFF
¶ 45), he makes quite a request in asking anyone to trust such speculation.
Page 6 of 22
voicemail messages. (PPFF ¶¶ 3, 6–7, 14). During this time, Mr. Andersen’s
outgoing voicemail greeting message stated:
any and all automated calls and automated voicemail messages
to this cell phone are strictly forbidden and any and all consent
under 47 U.S.C. section 227 has been and is hereby revoked. If
you are not an automated call or automated recording, please
leave a message and someone will get back to you shortly.
(PPFF ¶ 13). Of course, because H&H was using a dialer system, it never
received that message, and so continued to call Mr. Andersen’s cell phone
number. In the end, it called Mr. Andersen’s cell phone number
approximately 163 times. (See PPFF ¶ 3, and Def.’s Resp.). Finally, a live
agent reached Mr. Andersen, at which time Mr. Andersen requested that
H&H stop calling his cell phone number. (DPFF ¶ 51). H&H immediately
complied and stopped its calls. (DPFF ¶ 51).
Mr. Harris then filed the immediate suit, alleging that H&H’s
automated calls violated the TCPA. (Docket #1).
2.
MOTION TO STRIKE
Before reaching the merits of the parties’ cross-motions for summary
judgment, the Court must first address Mr. Andersen’s motion to strike
(Docket #50). Mr. Andersen requests that the Court strike the affidavit of Tim
Brown (the “Brown Affidavit”; Docket #47, Ex. A), which sets forth certain
information about WE Energies’ calls to Mr. Andersen, the information
associated with Mr. Andersen’s account, and WE Energies’ business
practices. (Docket #53, at 3–9). Mr. Andersen also requests that the Court
strike Exhibits C, D, E, and F to Docket #47; all of those exhibits pertain to
other suits and activities that Mr. Andersen has engaged in, often in regards
to the TCPA. (Docket #53, at 9–12). The Court will address these two sets of
documents separately.
Page 7 of 22
2.1
Brown Affidavit (Exhibit A)
The Court turns first to the Brown Affidavit. Mr. Andersen makes
various arguments as to why the affidavit should be inadmissible: that it is
not based upon personal knowledge (Docket #53, at 4–6); and that it
constitutes inadmissible hearsay and violates the best evidence rule (Docket
#53, at 6–8).4 Both of those arguments fail, and the Court finds that the Brown
Affidavit is admissible.
As to personal knowledge, the Brown Affidavit lays a proper
foundation. Tim Brown states that he is employed as Operations Manager of
Credit and Collections for WE Energies (Docket #47, Ex. 1, ¶ 2), and
understands and regularly uses WE Energies’ record-keeping system (Docket
#47, Ex. 1, ¶ 4). He then provides a statement about the information
contained in Mr. Andersen’s account and WE Energies’ business practices.
(See remainder of Docket #47, Ex. 1). Given Mr. Brown’s employment as the
manager of the collections department at WE Energies, the Court finds that
he has ample reason to understand both WE Energies’ records and its
business practices. For that reason, it is satisfied that he has personal
knowledge sufficient to make the affidavit in question.
That conclusion is further buttressed in two separate ways. First, the
Court agrees with H&H that Mr. Brown, acting as WE Energies’ corporate
representative, was permitted to verify WE Energies’ records and practices
by virtue of his personal knowledge of and familiarity with WE Energies’
records. (Docket #56, at 4–5 (citing ABN Amro Mortgage Group, Inc. v.
4
Mr. Andersen also previously accused H&H of not identifying WE
Energies-related evidence in discovery. (Docket #43 at 17–19). That allegation was
apparently totally unfounded (see Docket #56 at 2), and Mr. Andersen has not
posited it any further.
Page 8 of 22
Maximum Mortgage, Inc., 2006 WL 2598034, *5 (N.D. Ind. Sept. 8, 2006);
Westchester Fire Ins. Co. v. American Wood Fibers, Inc., 2006 U.S. Dist. LEXIS
24225 at *12, 2006 WL 752584 (N.D. Ind. March 21, 2006)). Second, the records
in question—to the extent that Mr. Andersen challenges the Brown Affidavit
as improperly relying upon them—were not required to be submitted in full.
See Fed. R. Ev. 901(a), 1006. Rather, because H&H made the records available
to Mr. Andersen as part of discovery and they are still available for
examination, H&H was permitted to present them in the form of a summary,
Fed. R. Ev. 1006, which it did through the Brown Affidavit.
As to whether the Brown Affidavit contains inadmissible hearsay, the
Court concludes it does not. Generally, very little of the alleged hearsay is
offered for the truth of the matter asserted. To the extent that Mr. Brown
provided information from records about calls to or from Mr. Andersen (see
Docket #74, Ex. 1, ¶¶ 6, 8–11, 15–16), H&H now offers that evidence to show
that Mr. Andersen changed his phone number in WE Energies’ system,
rather than to show that WE Energies actually called Mr. Andersen. Some
small portion of the Brown Affidavit may include hearsay, for example
where Mr. Brown relays comments from phone operators (Docket #47, Ex. 1,
¶¶ 12–14), but the Court can excise those portions of the affidavit and the
material facts attested to remain exactly the same: at some point, WE Energies
began calling Mr. Andersen on his cell phone number and later changed that
number in the system. From Mr. Brown’s statements based on personal
knowledge (e.g. Docket #47, Ex. 1, ¶¶ 16, 17, 18), which are not hearsay, the
Court also knows that WE Energies would not use that number without
receiving it from Mr. Andersen. As such—even ignoring the potentiallyinadmissible hearsay—the Brown Affidavit largely remains intact. Certainly,
its key points on issues of material fact still stand.
Page 9 of 22
Finally, the Court agrees with H&H that there is no best evidence rule
violation, seeing as the Brown Affidavit summarizes accurate business
records. (Docket #56, at 5–6 (citing Peter Kiewit Sons’ Co. v. Summit Const. Co.,
422 F.2d 242, 267 (C.A.S.D. 1969) (“neither the business records exception to
the hearsay rule, nor the best evidence rule are violated by the presentation
of summaries of properly kept business records which if offered into
evidence would themselves be admissible”))). Moreover, to the extent that
there is any violation, it is not a serious one: the entire business records are
available (and, in fact, in Mr. Andersen’s possession). H&H could have
submitted—and still could submit—those records, but instead chose to rely
on the Brown Affidavit as a summary. There is no serious challenge to the
accuracy of the business records or to the Brown Affidavit’s summary of
them—rather, Mr. Andersen makes only the technical argument that the
records should have been submitted instead of the summary. The Court does
not find that ample reason to strike the affidavit under the best evidence rule.
For all of these reasons, the Court will deny Mr. Andersen’s motion
to strike as to the Brown Affidavit, except insofar as it strikes Paragraphs 12
through 14 of the Affidavit as inadmissible hearsay. However, as the Court
earlier observed, the stricken paragraphs do not change the Court’s analysis.
2.2
Evidence of Mr. Andersen’s Other Suits and Activities
(Exhibits C, D, E, and F)
On the other hand, the Court must strike Exhibits C, D, and E,
pertaining to various other activities and suits in which Mr. Andersen has
been involved. Specifically, Exhibits C and D are orders from Andersen v.
Baxter, E.D. Wis. Case No. 07-CV-313-WCG, in which Judge William
Griesbach criticizes Mr. Andersen’s course of action throughout a Fair Debt
Collection Practices Act (“FDCPA”) case. Exhibit E is a Wisconsin Court of
Page 10 of 22
Appeals decision in Case No. 2012AP104, affirming the Wisconsin Circuit
Court’s award of attorney’s fees against Mr. Andersen for abusive practices.
The Court cannot envision any way in which these documents are relevant
to a fact of consequence: Mr. Andersen’s past conduct does not make his
allegations in this case any more or less likely to have occurred. Perhaps it
goes to his credibility, but at this stage of the proceedings the Court would
prefer not to consider the documents for that reason, simply because there
are
ample
facts
and
reasons—without
resorting
to
credibility
determinations—on which this case ought to be dismissed.5 The Court will,
therefore, strike Exhibits C, D, and E.
Exhibit F is, however, not unduly prejudicial; the Court will still strike
Exhibit F as both irrelevant and a violation of Federal Rule of Evidence 408.
Exhibit F is a collection of emails sent by Mr. Andersen to H&H demanding
settlement for alleged TCPA, FDCPA, and Wisconsin Consumer Act
violations, all based upon the calls giving rise to this case. Federal Rule of
Evidence 408 make settlement negotiations documents inadmissible, except
when certain exceptions are met. Simply put, the emails have absolutely no
relevance to any fact of consequence in this case, and so would not be
admissible even if one of Federal Rule of Evidence 408’s exceptions were met.
The Court, therefore, will likewise strike Exhibit F.
5
If it were necessary to go to trial, the Court may reconsider this ruling
before allowing Mr. Andersen to testify. That is, it may be appropriate for a jury to
receive the evidence. But, at this stage, the Court simply wants to make it clear for
the record, so as to avoid potential reversal on this ground: out of an abundance of
caution, it has not considered this evidence, and will strike it from the record at this
time. The Court points out that it also has not considered Mr. Andersen’s prior
criminal history in any way to reach its decision in this case.
Page 11 of 22
For these reasons, the Court will grant Mr. Andersen’s motion to
strike, insofar as it grants his request to strike Exhibits C, D, E, and F.
3.
CROSS-MOTIONS FOR SUMMARY JUDGMENT
On to the substantive matter at hand: resolution of the parties’ cross-
motions for summary judgment.
3.1
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows 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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Material facts” are those
under the applicable substantive law that “might affect the outcome of the
suit.” Anderson, 477 U.S. at 248. A dispute over a “material fact” is “genuine”
if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
3.2
Substantive Analysis
Before getting into the specifics of the substantive issues in this case,
the Court first provides this summary of what is at issue. In fact, the
remaining issues are very discrete. The parties seem to agree that H&H made
calls to Mr. Andersen using an automated dialer with an artificial or prerecorded voice. Those calls, in turn, violate the TCPA, 47 U.S.C.
§ 227(b)(1)(A)(iii), unless Mr. Andersen consented to them. See 47 U.S.C.
§ 227(b)(1)(A) (making it illegal “to make any call (other than a call…made
with the prior express consent of the called party).”). So, one main issue in
this case is whether Mr. Andersen consented to receive the calls from H&H.
If not, then the calls were illegal and Mr. Andersen prevails. If so, then the
calls did not violate the TCPA and H&H prevails—unless, legally, Mr.
Andersen was allowed to revoke his consent and did so by stating as much
Page 12 of 22
on his outgoing voicemail message. That revocation issue is the other main
issue in the case.
There is one additional minor issue that the Court must address—Mr.
Andersen’s standing to pursue this action—and it does so first, because if Mr.
Andersen lacks standing, then the Court lacks jurisdiction to hear this case.
Thereafter, the Court will address the consent and revocation issues in turn.
3.2.1
Does Mr. Andersen Have Standing to Maintain this
Suit?
Standing “is an essential and unchanging part of the case-orcontroversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). Its basic elements are: (1) that the plaintiff alleges an injuryin-fact; (2) the injury is fairly traceable to the defendant’s unlawful conduct;
and (3) the injury is likely to be redressed by the relief the plaintiff seeks.
Lujan, 504 U.S. at 560–61; DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
(2006) (citing Allen v. Wright, 468 U.S. 737, 750 (1984)).
H&H focuses primarily on the first element of standing: injury-in-fact.
It argues that Mr. Andersen lacks standing to proceed in this suit, because he
does not have any injury-in-fact in this case. (Docket #49, 19). Specifically,
H&H argues that Mr. Andersen stipulated to the fact that he did not suffer
an injury-in-fact and further that his statutory damages are not enough, as
a matter of law, to create an injury-in-fact.
An injury-in-fact requires “an invasion of a legally protected interest
which is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.” Lujan, 504 U.S. at 560.
Mr. Andersen runs into a problem right off the bat: he seems to have
stipulated away his standing to pursue this case. At Mr. Andersen’s
deposition, H&H counsel asked of Mr. Andersen’s counsel: “We were just off
Page 13 of 22
the record and we’re going to do a stipulation to shorten this, hopefully, and
that’s that the plaintiff has not incurred any actual damages. And by that, it
would mean like an injury, what the legal term would be is like an injury in
fact.” (Docket #47, Ex. 2, 75:23–76:3). Mr. Andersen’s counsel then stated
“That is a fair stipulation. The plaintiff agrees.” So, in essence, Mr. Andersen
has stipulated that he lacks one of the essential elements of standing.
What was Mr. Andersen’s counsel thinking? Essentially, in stipulating
to that fact, he stipulated that his client could not pursue this case. This is
particularly perplexing, seeing as the Court believes that there is sufficient
evidence of an injury-in-fact to support standing.
Given that conflict—between the stipulation and the evidence—the
Court must dig a bit deeper before dismissing the case for lack of standing.
The Court begins by pointing out that it cannot find any case law from the
Seventh Circuit specifically holding that such a stipulation could or should
be effective over the evidence (most likely because it is a rare lawyer who
would stipulate on the record that his client did not suffer an injury-in-fact).
To be sure, “litigants can’t stipulate to the enlargement of federal
jurisdiction,” United States v. Accra Pac, Inc., 173 F.3d 630, 633, but the Court
wonders whether that principle is a two-way street: can litigants stipulate
that standing (or some element thereof) does not exist? In Castellano v. WalMart Stores, Inc., the Seventh Circuit noted that “it was stipulated in the Final
Pretrial Order that Robert Castellano did not have standing to assert a claim
for breach of contract against Wal-Mart.” 373 F.3d 817, 821. The Seventh
Circuit did not seem to have any qualms with that stipulation, leading the
Court to believe that it is permissible for parties to stipulate away the
existence of standing.
Page 14 of 22
Thus, Mr. Andersen’s stipulation, alone, is likely reason enough for
the court to dismiss this case for lack of standing.
But, the Court hesitates to resolve the matter on that ground, for two
reasons. First, the stipulation is somewhat vague. Before mentioning the term
“injury in fact,” H&H’s counsel first discussed “actual damages” and
“injury.” (Docket #47, Ex. 2, 75:23–76:3). Seeing as the parties now argue over
whether statutory damages, alone, are sufficient to establish an injury-in-fact,
the Court wonders whether Mr. Andersen’s counsel meant to stipulate only
to the lesser fact that Mr. Andersen had not suffered any damages as a result
of the calls, but still meant to assert that he has an injury-in-fact. That is
certainly possible.
Second, the facts and law seem to establish that Mr. Andersen did
suffer an injury-in-fact. To begin, aside from the issue of statutory damages,
Mr. Andersen undoubtedly suffered higher phone bills and regular
annoyances as a result of H&H’s calls, both constituting injuries-in-fact. More
importantly, the Court agrees with Mr. Andersen that the existence of
statutory damages provisions should be sufficient to establish an injury-infact. (Docket #50, at 3). The Third Circuit has held that “[a] plaintiff need not
demonstrate that he or she suffered actual monetary damages because ‘the
actual or threatened injury required by Art. III may exist solely by virtue of
statutes creating legal rights, the invasion of which creates standing.’” Alston
v. Countrywide Fin. Corp., 585 F.3d 753, 763 (3d Cir. 2009) (quoting Havens
Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982)). In other words, a statute
creating a right to receive statutory damages is enough to create the existence
of an injury-in-fact. Any other rule would mean that many statutorydamages seekers would not have standing, because statutory damages often
can, and indeed do, stand in for the existence of actual damages.
Page 15 of 22
For these reasons—the vagueness of the stipulation and the
countervailing facts that would establish standing—and in spite of the
Court’s concerns with overstepping its Article III powers, the Court
determines it best to treat Mr. Andersen as having standing in spite of his
stipulation. Even so, the Court ultimately determines that Mr. Andersen’s
claims must be dismissed for other reasons; thus, the Court’s standing
determination makes little substantive difference, other than that the Court
proceeds through the remainder of its substantive legal analysis.
3.2.2
Did Mr. Harris Consent to the Phone Calls?
As mentioned above, H&H cannot have violated the TCPA if Mr.
Andersen consented to the calls made by H&H. See 47 U.S.C. § 227(b)(1)(A)
(making it illegal “to make any call (other than a call…made with the prior
express consent of the called party).”). But, the existence of consent is an
affirmative defense, and therefore H&H bears the burden to prove it. E.g.
Kolinek v. Walgreen Co., No. 13-CV-4806, 2014 WL 518174, *2 (N.D. Ill. Feb. 10,
2014) (citing Thrasher–Lyon v. Ill. Farmers Ins. Co., 861 F.Supp.2d 898, 905
(N.D. Ill. 2012); D.G. v. Diversified Adjustment Serv., Inc., No. 11-CV-2062, 2011
WL 5506078, at *3 (N.D. Ill. Oct. 18, 2011); Martin v. Bureau of Collection
Recovery, No. 10-CV-7725, 2011 WL 2311869, at *1 (N.D. Ill. June 13, 2011);
Grant v. Capital Mgmt. Servs., L.P., 449 Fed. App’x 598, 600 n.1 (9th Cir. 2011);
Pinkard v. Wal–Mart Stores, Inc., No. 3:12–CV–2902, 2012 WL 5511039, at *2
(N.D. Ala. Nov. 9, 2012); In re Rules & Regs. Implementing Tel. Consumer Prot.
Act of 1991, 23 FCC Rcd. 559, 565 ¶ 10 (Jan. 4, 2008); Jones v. Bock, 549 U.S. 199,
215 (2007); Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 & n.1
(7th Cir. 2012); Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935
(7th Cir. 2012); United States v. Lewis, 411 F.3d 838, 842 (7th Cir.2005)).
Page 16 of 22
H&H correctly points out that the FCC has issued a declaratory order
that is precisely on point:
Because we find that autodialed and prerecorded message calls
to wireless numbers provided by the called party in connection
with an existing debt are made with the “prior express
consent” of the called party, we clarify that such calls are
permissible. We conclude that the provision of a cell phone
number to a creditor, e.g., as part of a credit application,
reasonably evidences prior express consent by the cell phone
subscriber to be contacted at that number regarding the debt.
…
Calls placed by a third party collector on behalf of that creditor
[to whom prior express consent was provided] are treated as
if the creditor itself placed the call.
(Docket #49, at 13 (citing In re Rules & Regs. Implementing Tel. Consumer Prot.
Act of 1991, FCC Declaratory Ruling No. 07-232, 23 FCC Rcd. 559 ¶¶ 9–10
(Jan. 4, 2008) (alterations from H&H’s brief))). The FCC has said elsewhere
that:
[P]ersons who knowingly release their phone numbers have in
effect given their invitation or permission to be called at the
number which they have given, absent instructions to the
contrary. Hence, telemarketers will not violate our rules by
calling a number which was provided as one at which the
called party wishes to be reached.
In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, 7 FCC Rcd.
8752, 8769 ¶ 31 (Oct. 16, 1992).
Given those standards, the Court has no doubt that Mr. Harris
consented to receive the phone calls in question. As discussed in the factual
background section, above, the evidence establishes that WE Energies
received Mr. Andersen’s cell phone number from Mr. Andersen himself.
Accordingly, under the FCC guidance and myriad cases, the Court must
conclude that Mr. Andersen consented to be called on his cell phone number
Page 17 of 22
by WE Energies. See, e.g., In re Rules & Regs. Implementing Tel. Consumer Prot.
Act of 1991, FCC Declaratory Ruling No. 07-232, 23 FCC Rcd. 559 ¶ 9; In re
Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd.
559 (Dec. 28, 2007); Soppet v. Enhanced Recovery Co. LLC, 679 F.3d 637 (7th Cir.
2012); Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036 (9th Cir. 2012);
Saunders v. NCO Fin. Sys., Inc., 910 F. Supp. 2d 464, 467 (E.D.N.Y. 2012);
Moore v. Firstsource Advantage, LLC, No. 07–CV–770, 2011 WL 4345703 (Sept.
15, 2011 W.D.N.Y.); Starkey v. Firstsource Advantage, LLC, No. 07–CV–662,
2010 WL 2541756 (Mar. 11, 2010 W.D.N.Y.). Moreover, because H&H was
acting as a third party collector on WE Energies’ behalf, H&H is treated as
having Mr. Andersen’s consent as if WE Energies had “itself placed the call.”
In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, FCC
Declaratory Ruling No. 07-232, 23 FCC Rcd. 559 ¶ 10.
Mr. Andersen objects that he provided his cell phone number with
respect to some other address (he does not specify which other address),6 and
that this defeats his consent. He argues that “there is far more than a scintilla
of doubt regarding whether Plaintiff had one account or multiple accounts
at multiple addresses.” This matters, according to Mr. Andersen, because
consent applies only insofar as he provided his cell phone number “during
the transaction that resulted in the debt owed.” (Docket #54, at 15–16 (citing
In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, FCC
Declaratory Ruling No. 07-232, 23 FCC Rcd. 559,565)). Mr. Andersen argues
6
This is a perfect example of where Mr. Andersen’s vague and self-serving
testimony comes into play. He acknowledges only that he lived at the 505 Lake
Street address beginning “sometime between 2005 and 2010” (Docket #54, at 13),
and then uses that uncertainty to argue that his WE Energies account may have
covered some other address or period of time when he provided his cell phone.
Page 18 of 22
that this means that his consent cannot be imputed from one of his addresses
to another (note that Mr. Andersen, himself, has done everything in his
power to obfuscate where he lived at specific times), but the evidence
submitted by WE Energies shows that WE Energies obtained Mr. Andersen’s
cell phone number during conversations about his account, which included
service to the 505 Lake Street address. The Court is satisfied that the evidence
establishes that WE Energies received Mr. Andersen’s consent “during the
transaction that result in the debt owed,” in satisfaction of In re Rules & Regs.
Implementing Tel. Consumer Prot. Act of 1991, FCC Declaratory Ruling No.
07-232, 23 FCC Rcd. 559,565.
Mr. Andersen tries to bolster his point by quoting the same FCC
order’s statement that “prior express consent provided to a particular
creditor will not entitle that creditor (or third party collector) to call a
consumer’s wireless number on behalf of other creditors, including on
behalf of affiliated entities.”(Docket #54, at 16 (citing In re Rules & Regs.
Implementing Tel. Consumer Prot. Act of 1991, FCC Declaratory Ruling No.
07-232, 23 FCC Rcd. 559, 565 n.38) (emphasis supplied in Mr. Andersen’s
brief)). How interesting that Mr. Andersen fails to emphasize the most
important portion of that phrase, which notes that consent provided to one
creditor will not entitle that creditor to call a consumer on behalf of other
creditors or affiliated entities. To any reasonable person, that is simply not
what is happening here, and the reference quoted above simply does not
apply.
For all of these reasons, the Court determines that Mr. Andersen
provided consent to H&H, and thus that H&H did not violate the TCPA by
using an autodialer to call Mr. Andersen to collect the debt he owed to WE
Energies.
Page 19 of 22
3.2.2
Did Mr. Harris Withdraw that Consent?
Of course, that determination only holds if the Court determines that
Mr. Andersen’s outgoing voicemail message failed to revoke his consent.
This is a two-part question. First, there is a legal question of whether
consent under the TCPA can ever be revoked. Second, if consent can be
revoked, then the Court must determine whether Mr. Andersen’s outgoing
voicemail message was effective to do so.
As to the first question, there is some inconsistency among the
authorities. H&H cites two district court cases holding that consent is
irrevocable under the TCPA. (Docket #49, at 16 (citing Saunders, 910 F.Supp.
2d at 468-69 (E.D.N.Y. 2012); Chavez v. The Advantage Group, 2013 WL
4011006, *4 (D.Colo. Aug. 5, 2013))). Mr. Andersen points out that the FCC
and the Third and Eleventh Circuits have held that consent is revocable.
(Docket #54, at 18–19 (citing In re Rules & Regs. Implementing Tel. Consumer
Prot. Act of 1991, 27 FCC Rcd. 15391, 15398 (Nov. 26, 2012); Gager v. Dell
Financial Services, LLC, 727 F.3d 265 (3d Cir. 2013); Osorio v. State Farm Bank,
F.S.B., 2014 U.S. App. LEXIS 5709, 28-29 (11th Cir. Fla. Mar. 28, 2014))).
Generally speaking, Mr. Andersen’s authority is the more persuasive on the
issue.
The Court need not finally resolve that issue, however, because even
if consent is revocable, Mr. Andersen’s voicemail is not enough to have done
so, in this case. To begin, there is no authority to support the contention that
an outgoing message is sufficient to revoke consent. The Breslow v. Wells
Fargo Bank, N.A., case, cited by Mr. Andersen, is inapposite because, while it
does seem to impose a duty on automated callers to occasionally check the
identity of the party it is calling, that duty has nothing to do with checking to
see whether a caller has revoked consent. 857 F. Supp. 2d 1316, 1319–22 (S.D.
Page 20 of 22
Fla. 2012). Moreover, Mr. Andersen’s proposal that his outgoing messages
should be sufficient to revoke consent would create a totally unworkable
rule. It would create a trap for all debt collectors who use automatic dialers:
in essence, it would allow individuals to consent to receive automated calls,
but then expose the debt collectors to liability as soon as the individual put
up an outgoing voicemail message revoking consent, regardless of whether
the debt collector actually received the message. And, of course, the debt
collector would be extremely unlikely to receive any notice of that revocation
in the meantime, by virtue of the nature of their collection services, using
automatic dialers. If Mr. Andersen were to have his way, the entire notion of
consent under the TCPA seems like it would be undermined.7
Having determined that Mr. Andersen’s outgoing message could not
have revoked his consent, and there being no evidence of any other efforts
on Mr. Andersen’s behalf to revoke his consent, the Court determines that
Mr. Andersen did not revoke his consent.
4.
CONCLUSION
For all of these reasons, the Court is obliged to determine that H&H’s
calls to Mr. Andersen did not violate the TCPA. Accordingly, the Court is
obliged to grant H&H’s motion for summary judgment, and likewise to deny
Mr. Andersen’s motion for summary judgment. It will also grant in part and
deny in part Mr. Andersen’s motion to strike, as more fully discussed above.
Accordingly,
7
In fact, the best rule would be one requiring revocation of consent in
writing, as put forth by Mr. Andersen as consistent with the FDCPA. (See Docket
#49 (citing Kenny v. Mercantile Adjustment Bureau, LLC, 2013 WL 1855782 (W.D.N.Y.
May 1, 2013))). That requirement would ensure that the debt collector actually
received revocation.
Page 21 of 22
IT IS ORDERED that Harris & Harris, Ltd.’s motion for summary
judgment (Docket #50) be and the same is hereby GRANTED, and this
matter be and the same is hereby DISMISSED with prejudice;
IT IS FURTHER ORDERED that Dean Andersen’s motion for
summary judgment (Docket #42) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Dean Andersen’s motion to strike
(Docket #51) be and the same is hereby GRANTED in part and DENIED in
part, as more fully discussed above.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 21st day of April, 2014.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
Page 22 of 22
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