JACKSON v. PMAB, LLC, No. 1:2016cv01705 - Document 31 (D.N.J. 2017)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 9/28/17. (dd, )
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JACKSON v. PMAB, LLC Doc. 31 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY _________________ ERICA J ACKSON, __ : : : : : : : : : : Plaintiff, v. PMAB, LLC, Defendant. _______________________ H o n . Jo s e p h H . Ro d rigu e z Civil Action No. 16-170 5 OPIN ION Presently before the Court is Plaintiff Erica J ackson’s Motion for Sum m ary, Defendant PMAB, LLC’s Cross Motion for Sum m ary J udgm ent and Motion for Leave to File a Sur-Reply.1 The Court has considered the written subm ission of the parties and for the reasons that follow will deny both m otions for sum m ary judgm ent because genuine issues of m aterial fact preclude sum m ary judgm ent. I. Background Plaintiff Erica J ackson (“J ackson”) com m enced this action against Defendant PMAB, LLC (“PMAB”) under the Fair Debt Collections Practices Act, 15 U.S.C. §1692, et seq. and the Telephone Consum er Protection Act (“TCPA”), 47 U.S.C. § 227, et seq. The TCPA, the only rem aining claim in this case, prohibits calling any person on a cellular telephone num ber using a prerecorded or autom ated voice except for em ergency purposes placem ent or where the call is “m ade with the prior express consent of the called party[.]”) 47 U.S.C. § 227(b)(1)(A)(iii). J ackson contends that PMAB initiated 111 1 Defendant PMAB’s Motion for Leave to File a Sur reply is denied. 1 Dockets.Justia.com calls to her cellular telephone num ber ending in 4171, without her consent, between April 1, 20 14, and Decem ber 17, 20 15. See Def. Supplem ental Responses to Interrogatories, Ex. E. No. 14; Def. Account Notes, Ex. F. PMAB does not deny m aking the calls. PMAB contends that it had perm ission from Darryl Cochran (“Cochran”), J ackson’s boyfriend, to call the 4171 telephone num ber and that Cochran had perm ission from J ackson to use her num ber. PMAB placed telephone calls to 4171 in an attem pt to collect m oney from Cochran owed to South J ersey Health System , A.K.A. Inspira (“Inspira”). See Def. Supplem ental Responses to Interrogatories, Ex. E. No. 14; Def. Account Notes, Ex. F. at p. 1.; Def. Responses to Interrogatories, Ex. G. No. 11; Inspira Records, Ex. H. PMAB conceded, for this case only, that the calls m ade to J ackson’s 4171 num ber were m ade with an autom ated telephone dialing system as defined by the TPCA. See Dec. of Rachel Stevens, Ex. C. at ¶¶ 7-8.); Def. Account Notes, Ex. F.; Def.’s Responses to Interrogatories Ex. G. at No. 8. Inspira’s records show Cochran provided J ackson’s 4171 num ber to Inspira during intake when he sought m edical treatm ent. See Inspira Records, Ex. H. The 4171 num ber is J ackson’s cellular telephone num ber and Cochran is not the owner of the phone and he does not pay the bills associated with her account; he has his own cellular telephone. See Pl. Responses to Interrogatories, Ex. A., Second Set Nos. 8, 10 , 11, 15, and 20 ; Statem ent of Cochran, Ex. J .; Dec. of Pltf., Ex. D., ¶ 7. However, both Cochran and J ackson testify that Cochran is perm itted em ergency use of J ackson’s 4171 cellular telephone but m ust ask for perm ission and then use the phone in J ackson’s presence. See Dec. of Pltf., Ex. D., ¶¶ 8-9, ¶ 12. J ackson claim s she did not give 2 Cochran perm ission to give her 4171 cellular telephone num ber to Defendant or Inspira. Id. at ¶11. J ackson seeks dam ages for violations of the TCPA because Defendant called her cellular telephone 111 tim es without her express consent. Cochran is not a party to this action. PMAB cross m oves for sum m ary judgm ent because it claim s that Cochran had J ackson’s consent, and thereby her consent, to contact him on J ackson’s cellular num ber. J ackson disputes this and m oves for sum m ary judgm ent on this basis. II. Standard of Review A court will grant a m otion for sum m ary judgm ent if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 10 6 S. Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56 (c). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 10 6 S. Ct. 250 5, 91 L.Ed.2d 20 2 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable 3 to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 10 6 S. Ct. 1348, 89 L.Ed.2d 538 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 10 6 S. Ct. 2548, 91 L.Ed.2d 265 (1986). Once the m oving party has m et this burden, the nonm oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 25657. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). III. Analysis The TCPA was am ended in 1991 to address calls to personal cellular phone with the goal of protecting consum ers from “intrusive and unwanted calls.” Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 20 13) (citing Mim s v. Arrow Fins. Servs., LLC, 4 565 U.S. 368, 372– 73, 132 S.Ct. 740 , 181 L.Ed.2d 881 (20 12)). The Act prohibits, inter alia, four principal practices. See 47 U.S.C. § 227 (b) (1). Relevant here is the proscription of the placem ent of “any call (other than a call m ade for em ergency purposes or m ade with the prior express consent of the called party) using any autom atic telephone dialing system ... to any telephone num ber assigned to a ... cellular telephone service.” Id. § 227 (b) (1) (A) (iii). Prior express consent, pursuant to the TCPA, is given when “persons who knowingly release their phone num bers have in effect given their invitation or perm ission to be called at the num ber which they have given, absent instructions to the contrary.” Rules and Regulations Im plem enting the Consum er Protection Act of 1991, 7 FCC Rcd. 8752, 8769 (1992). In this regard, “prior express consent is deem ed to be granted only if the wireless num ber was provided by the consum er to the creditor, and that such num ber was provided during the transaction that resulted in the debt owed.” Rules and Regulations Im plem enting the Consum er Protection Act of 1991, 23 FCC Rcd. 559, 564-65 (20 0 8); see also Chisholm v. AFNI, Inc., No. CV 15-3625 (J BS/ J S), 20 16 WL 690 1358, at *5 (D.N.J . Nov. 22, 20 16). Courts determ ining whether a plaintiff has given “prior express consent[,]” m ust grapple with the tension between individual privacy rights and the freedom of com m ercial speech. See Telephone Consum er Protection Act, Pub. L. No. 10 2– 243, § 2(9), 10 5 Stat. 2394 (1991) (codified as am ended at 47 U.S.C. § 227); see Leyse v. Bank of Am . Nat. Ass'n, 80 4 F.3d 316, 326 (3d Cir. 20 15). The creditor bears the burden to dem onstrate that the recipient of a call provided prior express consent. Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355, 366 (3d Cir. 20 15). The recipient of a call, however, m ay differ from the intended target. The Act does not offer a definition of the 5 phrase “knowingly released” within the considerations of whether prior express consent exists. However, courts m ust adhere to the guidance prom ulgated by the Federal Com m unications Com m ission (“FCC”). See Hartley– Culp v. Green Tree Servicing, LLC, 52 F. Supp. 3d 70 0 , 70 3 (M.D. Pa. 20 14); see also Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 , 1119– 21 (11th Cir. 20 14); Gager, 727 F.3d at 268– 69 (citing 47 U.S.C. § 227(b)(2)). According to the FCC, the m anner in which a business obtains a telephone num ber inform s the consideration of whether a num ber was “knowingly released” and, therefore, perm issible to call. See In the Matter of Rules and Regulations Im plem enting the Telephone Consum er Protection Act of 1991, 23 FCC Rcd. 559, 563 (J an. 4, 20 0 8) (“20 0 8 Ruling”). The FCC’s 20 0 8 Ruling clarifies that calls m ade to a cellular telephone num ber “provided by the called party in connection with an existing debt are m ade with the ‘prior express consent’ of the called party.” Id. at 559, 564 (em phasis added). Courts have consistently interpreted the “called party” to m ean the actual recipient of the call and not the intended recipient. Leyse v. Bank of Am erica Nat. Ass’n, 80 4 F. 3d 316, 325 (3d. Cir. 20 15) (concluding that under the Act, the called party is the recipient of the call, and m ay differ from the intended recipient of the call); Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 643 (7th Cir. 20 12) (ruling that the called party “m eans the person subscribing to the called num ber at the tim e the call is m ade” as opposed to the intended recipient). Even where the owner of the cellular telephone num ber changes prior to an attem pt to collect a debt, leaving the collection agency at a distinct disadvantage, courts have ruled in favor of the called party ruling that the unawares collector is in violation of the TCPA. See Soppet, 679 F.3d at 643; see also Gager, 727 6 F.3d 265 (noting the broad protections afforded called parties under the Act). Thus, a debt collector is strictly liable under the Act if it attem pts to collect a debt by way of an autom ated dialing system without the prior express consent of the called party/ recipient of the call. The Third Circuit notes that this seem ingly harsh outcom e is fair because “creditors are perm itted to attem pt live, person-to-person calls in order to collect a debt.” Gager, 727 F.3d at 274. Against this back drop, this Court confronts a unique factual situation: J ackson perm its Cochran to list her cellular phone num ber in certain circum stances. PMAB contends that the record evidence dem onstrates that Cochran uses J ackson’s phone num ber with perm ission and therefore, PMAB had J ackson’s consent to call her in the attem pt to collect Cochran’s debt. In a sim ilar case, the Eleventh Circuit Court of Appeals held that sum m ary judgm ent cannot be granted under the Act where facts relevant to the scope of one person’s authority to list another person’s cell phone as a contact are in dispute. See Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 20 14). In Osorio, the plaintiff’s housem ate gave plaintiff’s cellular telephone num ber to defendant as a contact num ber, but stated she provided it for em ergencies only. Id. at 1242 (Defendant used an autom ated calling system to attem pt to collect housem ate’s debt and called plaintiff’s cellular phone num ber, alleging it was provided as housem ate’s work num ber. In reversing the district court’s grant of sum m ary judgm ent in favor of plaintiff, the Eleventh Circuit held that genuine issues of m aterial fact existed as to whether housem ate had plaintiff’s consent, and thereby defendant had plaintiff’s consent, when housem ate gave defendant plaintiff’s phone num ber. Id. at 1252-53. 7 Although housem ate and plaintiff shared a cell-phone plan, the Court, adopting the Third Circuit’s com m on law concept of consent as articulated Gager, 2 found that credibility issues m ust inform the contours of the consent housem ate had to use plaintiff’s cellular num ber as a contact. Here, J ackson and Cochran testify inconsistently as to the scope of the consent J ackson affords Cochran. Ex. B., Cochran Dep., 52:2-11. Cochran states that he never gives out his cellular num ber and will use J ackson’s or his m other’s num ber instead. Id. 51:24-52:1. Cochran testifies that he had J ackson’s perm ission to provide Inspira with her num ber ending in 4171 so that Inspira could contact him and that he provided the num ber during the registration process. Id. 61:1-13; B. 59:17-24. The record reflects other instances where Cochran m ay have used J ackson’s num ber that go beyond the param eters set forth in J ackson’s deposition testim ony. Specifically, J ackson believed that calls from DirectTV were an attem pt to collect a debt owed by Cochran. Ex. A., J ackson Dep., 62:24-63:24. As a result, there are genuine issues of m aterial fact related to whether J ackson, as the called party, provided express consent to Cochran to list her num ber for all com m unication that flowed from Cochran’s treatm ent at Inspira. As a result, the credibility of both J ackson and Cochran is at issue and sum m ary judgm ent is denied as to the whether PMAB violated the Act. In addition, there is no evidence in the record, even assum ing that Cochran was m istaken as to his authority to use J ackson’s cellular num ber, that PMAB willfully “ “Consent” is such a term, as the Third Circuit aptly explained: Under the common law understanding of consent, the basic premise of consent is that it is “given voluntarily.” Black's Law Dictionary, 346 (9th ed. 2009); Restatement (Second) of Torts § 892 (“Consent is a willingness in fact for conduct to occur.”). Osorio, 746 F. 3d at 1253 (quoting Gager 727 F. 3d at 270 71). 2 8 violated the TPCA in a m anner that warrants treble dam ages. Violations of the TCPA allow a successful plaintiff to recover his actual m onetary loss or $ 50 0 for each violation, whichever is greater. 47 U.S.C. § 227(b)(3)(B). A court m ay, in its discretion, award treble dam ages where a defendant’s violations are com m itted “willfully or knowingly.” 47 U.S.C. § 227 (b) (3). Cochran had perm ission to use J ackson’s num ber in certain circum stances and gave that num ber to Inspira, without providing his own num ber or indicating that the num ber did not belong to him . For this reason and because the record before the Court lacks evidence tending to support even an inference of an intentional violation of the statute by PMAB, sum m ary judgm ent is granted on the issue of treble dam ages under the TCPA. IV. Conclusion For the reasons set forth above, J ackson’s m otion for sum m ary judgm ent is denied. PMAB’s m otion for sum m ary judgm ent is granted in part as to the issue of willfulness and denied as to liability. PMAB’s m otion for leave to file a sur-reply is denied. An appropriate Order shall issue. Dated: Septem ber 28, 20 17 s/ J oseph H. Rodriguez HON. J OSEPH H. RODRIGUEZ, United States District J udge 9