United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
Dennis Saylor IV United States District Judge.
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
moved for summary judgment. For the following reasons, the
motion will be granted in part and denied in part.
otherwise noted, the following facts are undisputed.
ABC Acquires Koh's Cellular Telephone
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).
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).
ABC Calls Koh
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).
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).
The Disputed February Call
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). 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).
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. ¶ 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 ...