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Fleming v. Associated Credit Services, Inc.

United States District Court, D. New Jersey

September 21, 2018



          Kevin McNulty United States District Judge.

         Diana Fleming sues Associated Credit Services, Inc. ("ACS"), over a series of allegedly harassing phone calls that occurred from September 2015 to December 2015, which she claims were harassing in nature. These were dunning calls related to Ms. Fleming's unpaid electric bills; the power company had assigned the debt to ACS for collection. Approximately sixteen calls are alleged; two involved actual conversation between a representative of ACS and Ms. Fleming. Ms. Fleming now brings claims under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq, and the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227. ACS has moved for summary judgment. For the reasons explained in this opinion, the summary judgment motion is granted in part and denied in part.

         I. Summary[1]

         On or about September 2015, Ms. Fleming, a customer of Jersey Central Power 8& Light Company ("the power company"), experienced some financial difficulties and began to fall behind on her utility bill payments to the power company. (DSMF ¶¶ 1-2; PSMF ¶¶ 1-2.) Sometime between January and March 2015, she agreed to a payment plan with the power company but that payment plan "fell through." (DSMF ¶¶ 3-4; PSMF ¶¶ 3-4.) She was also experiencing some difficulty with the payment of other bills. (DSMF ¶ 5; PSMF ¶ 5.) On September 2, 2015, the power company placed die debt with ACS for collection. (PSMF ¶ 41; DCSMF ¶ 41.)

         Sometime around the end of July 2015, Ms. Fleming claims she received a call about her bill. (DSMF ¶ 10; PSMF ¶ 10.) By her description, the caller was male, but she does not know the name of the individual, how he identified himself, or for what company he worked. (DSMF ¶¶ 11-12; PSMF ¶¶ 11-12.) Ms. Fleming states that she presumed that this man worked for either the power company or a debt collector working on its behalf. (PSMF ¶ 11; DSMF ¶ 11.) She was driving at the time and requested that the man call back later or give her a number she could use to call him back. (Id.)

         On another phone call about the debt on September 15, 2015, [2]Ms. Fleming spoke with a man and a woman from ACS. (DSMF ¶¶ 13-14; PSMF ¶¶ 13-14.) The call began with the male representative, who inquired about her ability to pay her debt. (DSMF ¶¶ 16-17; PSMF ¶¶ 16-17.) She told the male representative that she could not afford to pay the debt because she had lost her job, had no money, had just come out of a domestic violence situation, was living with someone else, and was struggling to feed her kids. (PSMF ¶ 42; DCSMF ¶ 42.) The male ACS representative then transferred Ms. Fleming to a female supervisor. (PSMF ¶ 44; DCSMF ¶ 44.) The supervisor asked Ms. Fleming if she was receiving assistance from the state or some other source and told Ms. Fleming about sources she could turn to for assistance. (DSMF ¶ 28; PSMF ¶ 28.) Ms. Fleming told the supervisor that she was not aware of any government or charitable programs that would be able to help her. (PSMF ¶ 45; DCSMF ¶ 45.) Towards the end of the conversation, the supervisor said, "Good luck. I might call again in the future, but I wish you good luck. Okay?," to which Ms. Fleming responded, "Okay. Thank you so much." (DSMF ¶ 28; PSMF ¶ 28.)

         Ms. Fleming recalls another conversation with an ACS representative about her debt. She states that it occurred sometime after the call on September 15, 2015, but she could not remember who called or how long the conversation lasted. (DSMF ¶ 19; PSMF ¶ 19.) She also could not find this conversation in her call records. (DSMF ¶¶ 20; PSMF ¶¶ 20.) At her deposition, however, Ms. Fleming testified that she told the ACS representative during this phone conversation "to stop calling because [her] current situation did not change" since the last time she spoke to an ACS representative on September 15, 2015. (DSMF ¶ 19; PSMF ¶ 19.)

         On December 7, 2015, counsel for Ms. Fleming sent a letter to ACS stating that they would be representing her and directing ACS to have no further direct communication with her. Counsel also explicitly revoked Ms. Fleming's consent to be called by ACS on her cell phone number. (DSMF ¶ 25; PSMF ¶ 25.) ACS has not directly contacted Ms. Fleming since receiving that letter. (DSMF ¶ 26; PSMF ¶ 26.) Ms. Fleming also stipulated at her deposition that she did not sustain any actual damages as a result of the phone calls. (DSMF ¶ 27; PSMF ¶ 27.)

         According to ACS's call log, after the September 15, 2015 phone conversation Ms. Fleming received 14 more phone calls from ACS on the following dates: September 22, September 26, October 1, October 8, October 15, October 20, October 26, October 30, November 4, November 12, November 16, November 21, December 1, and December 3, 2015. (PSMF ¶ 47; DCSMF ¶ 47.) Ms. Fleming did not recall answering any of those calls (unless one of them was the call to which she could not attach a specific date). Nevertheless, she found them "annoying, harassing, and invasive." (Id.; PSMF ¶ 22.) ACS's call logs back up Ms. Fleming's statement that she spoke to an ACS representative on September 15, 2015. The logs do not corroborate the existence of the other two calls in which she says she actually spoke to a representative (i.e., the call in July 2015 and the one on some unspecified date after September 15, 2015).

         ACS made all calls to Ms. Fleming that appear in the call log using the LiveVox Human Call Initiator ("HCI") System. (DSMF ¶ 29; PSMF ¶ 29.) Ms. Fleming and ACS disagree over the exact makeup and capabilities of the LiveVox HCI system.

         According to ACS, the HCI system requires human intervention before a call can be initiated and that it is not capable of automated or predictive dialing. (DSMF ¶¶ 31-32.) Further, it describes HCI as a distinct outbound dialing system that is separate from the other dialing systems used by LiveVox at the hardware and software level. (DSMF ¶ 33.) ACS says that HCI uses a set of servers exclusively dedicated to HCI calls and cannot launch automated calls. (Id.) ACS does not install any LiveVox system on its own computers. (DSMF ¶ 33; PSMF ¶ 33.) To place a call using the HCI system, a "clicker agent" must physically "click on" or press the enter key to initiate a call to a particular number, and there must be a "closer agent" who is available to take the call. (DSMF ¶ 34.) The "clicker agent" has the ability to determine how often calls are made based on the availability of a "closer agent." (Id.) HCI allegedly does not have the capacity to auto-dial, and none of its features can be modified, activated, deactivated, or otherwise altered to enable it to auto-dial. (Id. ¶ 35.) HCI cannot produce numbers to be dialed using a random or sequential number generator. (DSMF ¶ 36; PSMF ¶ 36.) Nor does it use an artificial or pre-recorded voice. (DSMF ¶ 37; PSMF ¶ 37.)

         According to Ms. Fleming, the distinctions that ACS draws between HCI and an autodial system are not meaningful. ACS has a computer file of hundreds or thousands of account numbers with phone numbers. Those numbers, says Ms. Fleming, are loaded into "campaign database" software. That software in turn uses preprogrammed criteria to sort the phone numbers and send them to one or more of four LiveVox servers for dialing: the Automated Server; the HCI server; the Preview-All Server; or the Manual Server. (PSMF ¶ 48; see also PSMF ¶ 49.) When the combined system made up of the campaign database and the four servers is used, calls can be launched using the Automated Server where the computer dials each call from the stored list. (PSMF ¶ 50.) Calls can also be routed by the campaign database to the HCI server, where the system selects the next telephone number to call from the phone numbers stored in its database, where it displays each number one-at-a-time on a screen for a "clicker agent," whose sole job is to push a button that dials the number chosen by the computer. (PSMF ¶ 51.) In the HCI mode, the "clicker agent" does not have a choice of which number to call but merely selects the number presented to him or her. (PSMF ¶ 52.) The agent does not have the option to skip the number and go on to another call or to decline the call; the agent must either launch the call or log out of the system and stop working altogether. (PSMF ¶ 53; see also PSMF ¶ 54.) Under either the Automated or HCI server, there is no person on the phone line when the call is made, and the call is only transferred to a live agent to handle the call if the computer system detects that a human voice has answered. (PSMF ¶ 55.)

         In June 2016, Ms. Fleming brought suit against ACS, making claims under the TCPA and FDCPA. ACS now moves for summary judgment on several grounds. First, it argues that Ms. Fleming cannot show that the allegedly harassing calls were placed without her consent.[3] (Def. Br. at 11.) Second, it argues that Ms. Fleming cannot show that the calls were placed using an autodialer as defined under the TCPA. (Id. at 12.) Third, it argues that Ms. Fleming has not shown a sufficient number of phone calls to warrant relief under the FDCPA. (Id. at 16-19.)

         II. Discussion

         a. Standard of Review

         Fed. R. Civ. P. 56(a) provides that summary judgment should be granted "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, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Cty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

         Once the moving party has met that threshold burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth the types of evidence on which a nonmoving party must rely to support its assertion that genuine issues of material fact exist). "[Unsupported allegations . . . and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorp., 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) ("A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial."). If the nonmoving party has failed "to make a showing sufficient to establish the existence of an element essential to that parry's case, and on which that party will bear the burden of proof at trial, . . . there can be 'no genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).

         In deciding a motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the fact finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

         b. Standing

         Although the parties do not press the issue of standing, I am obliged to consider it. See Lewis v. Alexander, 685 F.3d 325, 338 n.10 (3d Cir. 2012). ACS alleges that Ms. Fleming "has stipulated through counsel that she did not suffer any personal or actual damages." (Def. Br. at 16 (adding that "she received no medical or psychological treatment"); DSMF ¶ 27.) Ms. Fleming counters that though she "has suffered no actual damages," she "was harmed by [ACS's] calls which she found aggravating, frustrating, harassing, and invasive." (PSMF ¶ 27.)

         "Injury in fact is a constitutional requirement, and '[i]t is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing." Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547-48 (2016) (quoting Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997)); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (explaining that the "irreducible constitutional minimum" of standing consists of three elements: the plaintiff must have (1) suffered an injury in fact (2) that is fairly traceable to the challenged conduct of the defendant and that (3) is likely to be redressed by a favorable judicial decision). To establish injury in fact, a plaintiff must show that she suffered an "invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560).

         In In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625 (3d Cir. 2017), the Third Circuit elucidated a rule for assessing the concreteness of harms involving conduct that violated statutes but that otherwise would not have given rise to a cause of action under common law: "When one sues under a statute alleging 'the very injury [the statute] is intended to prevent,' and the injury 'has a close relationship to a harm . . . traditionally . . . providing a basis for a lawsuit in English or American courts, a concrete injury has been pleaded." Susinno v. Work Out World Inc., 862 F.3d 346, 351 (3d Cir. 2017) (quoting In re Horizon, 846 F.3d at 639-40). The Third Circuit has held that a single, prohibited prerecorded call from a cell phone is sufficient to constitute a concrete injury and thus confer standing to pursue a claim under the TCPA. Susinno, 862 F.3d at 351; see also Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (finding two unwarranted text messages constituted a concrete injury under the TCPA, as they "present the precise harm and infringe the same privacy interests Congress sought to protect").

         Here, Ms. Fleming claims that she received sixteen unwanted calls from ACS. (PSMF ¶¶ 19, 47) Under the TCPA, she has standing to sue based on those calls. Such calls fall within die prohibitory scope of the TCPA, which elevates them to the category of previously recognized injuries to privacy rights. Susinno, 862 F.3d at 352 ("[W]hen Congress found that unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients, it sought to protect the same interests implicated in the traditional common law cause of action."); see also Van Patten, 847 F.3d at 1043 (9th Cir. 2017) ("A plaintiff alleging a violation under the TCPA need not allege any additional harm beyond the one Congress has identified." (internal quotations omitted)). Even while conceding no "actual" injury, whatever that may have meant, Ms. Fleming continued to maintain that she found these calls to be "aggravating, annoying, frustrating, harassing, and invasive." (PSMF ¶¶ 27, 58; DSMF ¶ 27.)

         Under the FDCPA, too, those allegedly repeated and harassing calls are sufficient to raise a claim of concrete injury and confer standing. At least one court in this District has so held on similar facts:

Plaintiffs alleged injury stems from Defendant's failure to disclose its identity in a voice message left on Plaintiffs cellphone. Plaintiff alleges that such a failure to disclose is a violation of her statutory rights under the FDCPA. Indeed, while this alleged injury may not have resulted in any economic or physical harm, Plaintiff, nonetheless, suffered a concrete injury because the alleged deprivation of Plaintiffs right to receive the statutorily mandated disclosures is 'not hypothetical' or 'conjectural.' Rather, it is a real harm that Congress has elevated to the status of a legally cognizable injury through the FDCPA.

Pisarz v. GC Servs. Ltd. Partnership, No. 16-4552, 2017 WL 1102636, at *6 (D.N.J. Mar. 24, 2017).

         Ms. Fleming may pursue causes of action under the TCPA and FDCPA. She has alleged injuries sufficient to establish standing to assert claims under those statutes.

         c. Autodialer and Predictive Dialing

         Ms. Fleming alleges that ACS used an unlawful "automatic telephone dialing system" ("ATDS")[4] to contact her on her cell phone, in violation of the TCPA. (Cplt. ¶ 19) I find that the evidence fails to raise a triable issue that ACS's LiveVox HCI system is an ATDS for purposes of the TCPA. I therefore will grant ACS's motion for summary judgment on this issue.

         The TCPA makes it unlawful "to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system ... to any . . . cellular telephone service . . . unless such call is made solely to collect a debt owed to or guaranteed by the United States." 47 U.S.C. § 227(b)(1)(A)(iii). The U.S. Court of Appeals for the Third Circuit has construed the term "automatic telephone dialing system" to mean "equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1); see also Dominguez v. Yahoo, Inc. ("Dominguez I"),629 Fed.Appx. 369, 371-72 (3d Cir. 2015) (noting that the statute's reference to a "random or sequential number generator" was initially understood in relation to telemarketers' use of autodialing equipment that either called numbers in large sequential blocks or dialed random 10-digit strings, but that this interpretation changed as such technology evolved and dialing from stored databases of numbers became more cost effective). ACS states that Ms. Fleming has failed to produce any evidence that she ...

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