United States District Court, D. New Jersey
For BESSIE TURNER, Plaintiff: AMY LYNN BENNECOFF, LEAD ATTORNEY, KIMMEL AND SILVERMAN P.C., CHERRY HILL, NJ.
For PROFESSIONAL RECOVERY SERVICES, INC., Defendant: JOHN B. MULLAHY, LEAD ATTORNEY, KAUFMAN, BORGEEST & RYAN, LLP, PARSIPPANY, NJ.
[Doc. No. 14]
JOEL SCHNEIDER, United States Magistrate Judge.
This matter is before the Court on the " Motion for Summary Judgment" [Doc. No. 14] filed by defendant Professional Recovery Services, Inc. (" PRS" ). The Court received plaintiff's response [Doc. No. 28] and defendant's reply [Doc. No. 29]. The Court exercises its discretion to decide defendant's motion without oral argument. See Fed.R.Civ.P. 78; L. Civ. R. 78.1. For the reasons to be discussed, defendant's motion is GRANTED in part and DENIED in part.
Plaintiff's personal debt from an HSBC credit card was referred to PRS, a debt collector, on July 29, 2011. PRS made multiple phone calls to plaintiff between July 30, 2011, and December 30, 2011, in an attempt to recover the debt. Defendant's Statement of Undisputed Facts (" Defendant's Statement" ) ¶ ¶ 1-2 [Doc. No. 14-1]. Plaintiff filed suit on June 5, 2012, alleging that while PRS tried to recover her debt it violated various provisions of the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692, et seq. See Complaint [Doc. No. 1].
The parties dispute the specifics of PRS's efforts to recover plaintiff's debt. PRS admits it called plaintiff's landline or cell phone 133 times between July 30, 2011, and December 30, 2011. PRS denies it called plaintiff after 9:00 p.m. PRS alleges it spoke with plaintiff on only seven occasions. Defendant's Statement ¶ ¶ 3-4; 6. Further, PRS alleges that the transcriptions of the phone calls between PRS and plaintiff indicate that on two occasions plaintiff asked the PRS collector to call back in a few days to determine if she could make a payment. Defendant's Statement ¶ ¶ 9-10.  PRS also alleges that plaintiff never sent a Cease and Desist
letter, pursuant to 15 U.S.C. § 1692c(c), which would have required PRS to stop communicating with plaintiff. Memorandum of Law in Support of Professional Recovery Services, Inc.'s Motion for Summary Judgment (" Defendant's Memo" ) at 9 [Doc. No. 14-2].
Plaintiff alleges PRS called her more than 133 times. Plaintiff also alleges PRS called her after 9:00 p.m. on November 20, 2011, and that she spoke with a PRS collector on more than seven occasions. Plaintiff's Response to Defendant's Statement of Undisputed Facts (" Plaintiff's Response" ) ¶ ¶ 4; 6 [Doc. No. 28-1]. Plaintiff further alleges that throughout October and November, 2011, PRS called her two to three times a day. See Bessie Turner Affidavit (" Turner Affidavit" ) ¶ 3, Plaintiff's Memo, Ex. A [Doc. No. 28-3]. Plaintiff alleges she told the PRS collectors she was not working and was unable to make any payments. Plaintiff alleges PRS told her the calls would continue until payments were made. Id. ¶ ¶ 10-11. Plaintiff also alleges the transcriptions of her calls with the PRS collectors demonstrate she did not want PRS to continue calling. Plaintiff's Memorandum of Law in Response to Defendant's Motion for Summary Judgment (" Plaintiff's Memo" ) at 8 [Doc. No. 28-2].
Because plaintiff argues that defendant violated the FDCPA the Court has federal question subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Further, the parties consented to the jurisdiction of this Court to decide defendant's motion pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. [Doc. No. 12].
III. Legal Standard
A court should grant summary judgment when the record demonstrates that " there is no genuine issue to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists if the evidence is such that a reasonable jury could find for the non-moving party on an issue affecting the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To determine if a material fact exists a court must view the evidence in a light most favorable to the non-moving party. " The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
The moving party has the initial burden to demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the non-moving party to identify specific facts that contradict those of the moving party. See Anderson, 477 U.S. at 256. If the non-moving party comes forward with " specific facts showing that there is a genuine issue for trial," such that a jury may return a verdict in his favor, summary judgment must be denied.
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