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Jae v. ABC Financial Services, Inc.

United States District Court, D. Massachusetts

July 5, 2017

YOUNG KOH JAE, Plaintiff,
v.
ABC FINANCIAL SERVICES, INC. Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          F. Dennis Saylor IV United States District Judge.

         This case arises out of attempts to collect a debt. Plaintiff Young Koh Jae contends that defendant ABC Financial Services, Inc. made multiple calls to his cellular telephone to collect fees allegedly owed to a third party health club. He contends that those calls were made without his consent, using an automated telephone-dialing system, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227. He seeks injunctive relief, actual damages, statutory damages of $500 per violative telephone call, and treble statutory damages.

         ABC has moved for summary judgment. For the following reasons, the motion will be granted in part and denied in part.

         I. Background

         A. Factual Background

         Unless otherwise noted, the following facts are undisputed.

         1. ABC Acquires Koh's Cellular Telephone Number

         On July 5, 2014, Young Koh Jae joined a health club called Retro Fitness located in East Norriton, Pennsylvania. (Koh Dep. 23). When Koh joined the health club, he signed a membership agreement, on which he wrote his cellular telephone number. (Membership Agreement, Def. Ex. B at 1).

         At all relevant times, ABC Financial Services, Inc. (“ABC”) was the payment processing company for Retro Fitness. (St. Onge Aff. ¶ 2). It provided billing and account services concerning Koh's account. (Id.). The information provided on Koh's membership agreement, including his telephone number, was downloaded into the systems of ABC when he joined the health club. (Id. ¶ 3).

         2. ABC Calls Koh

         ABC makes calls to Retro Fitness members when there is a problem with billing or an account needs to be updated. (Id. ¶ 4). ABC contends that all of its calls to health club members are made from the number 800-897-6877 (“x6877”). (Id.). ABC made multiple calls to Koh during the period from January 6, 2016, through June 14, 2016, from the x6877 number concerning his Retro Fitness account. (ABC Call Notes, Def. Ex. E; Koh Cellular Telephone Call Records, Def. Ex. F). Koh agrees that ABC made calls during that period from the x6877 number and also contends that ABC made calls from a different telephone number, although he cannot remember what that number was. (Koh Dep. 43).

         The parties agree that most of the calls from ABC to Koh went to voicemail or otherwise did not result in a live conversation. Koh alleges (and ABC has not contested) that at least some of those calls were made using an automated telephone dialing system. (Compl. ¶ 22; Def. Mot. for Summ. J. Mem. at 2). The number of occasions on which Koh answered an ABC call and spoke with a representative is in dispute. Koh contends he spoke to representatives on two occasions, first in February 2016, and again in March 2016. (Id. at 37, 46). ABC contends that Koh spoke with a representative only once, on March 25, 2016. (St. Onge Aff. ¶¶ 9-11).

         a. The Disputed February Call

         Koh contends that ABC called him sometime in February 2016 from a number other than x6877, but cannot recall what the number was. (Koh Dep. 37).[1] He contends that during the call, he spoke to an ABC representative and revoked consent for further calls, telling the representative to stop making “multiple automated calls.” (Id. at 40, 43; Def. Ex. C ¶ 9). When asked at his deposition what his “best guess” was as to the length of that call, he responded that it lasted “[s]ometime around three minutes.” (Koh Dep. 39).

         ABC contends that the alleged February call never occurred. (St. Onge Aff. ¶ 10). It contends that all calls made to health club members are noted in the member's account notes and all live calls are recorded. (Id. ¶ 5). Both ABC's account notes and Koh's cellular telephone records reflect that five calls were made to Koh from the x6877 number in February. (Id. ΒΆ 9; Def. Ex. E at 4-5; Def. Ex. F at 10). ABC's account notes indicate that none of those calls resulted in a live communication between Koh and an ABC ...


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