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Hatuey v. IC System, Inc.

United States District Court, D. Massachusetts

November 14, 2018

JOSIE HATUEY, an individual, Plaintiff,
v.
IC SYSTEM, INC., a Minnesota Corporation, Defendant.

          MEMORANDUM AND ORDER

          DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

         The Plaintiff, Josie Hatuey, filed this action against Defendant, IC Systems, Inc. (“ICS”), for violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Both counts arise from the same set of facts: a series of phone calls that Mr. Hatuey received from ICS in 2015 and 2016. ICS has moved for summary judgment as to both counts.

         I. BACKGROUND

         Mr. Hatuey lives in Roxbury, Massachusetts. In 2015, he started a new job and obtained a new cellular telephone to use for work purposes. Mr. Hatuey contends that in September of that year, he started receiving phone calls from ICS, a Minnesota-based company specializing in debt-collection, asking for a Mr. Brian O'Neill.[1] Mr. Hatuey informed ICS that he was not Mr. O'Neill and asked ICS to stop contacting him.

         Although Mr. Hatuey did not recall the specific dates or times, he asserts he received phone calls from ICS several times a week from different numbers, including from the telephone number, “(603) 414-1924.” On occasion, there were multiple calls per day. While ICS does not dispute that it made such calls, it does dispute the number of calls and their frequency and the documentary evidence indicates the first call was in February 2015, not September 2015 as Mr. Hatuey has testified.[2]

         Mr. Hatuey was not charged for the relevant telephone calls. The calls did not arrive at inappropriate hours, and the representatives who called were not impolite or otherwise abusive. However, on at least a few instances, Mr. Hatuey heard an artificial computer-generated voice on the other end of the line when he answered a call. The calls stopped in December 2016.

         II. STANDARD OF REVIEW

         This court will grant summary judgment if the moving party “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). Materiality is determined by the substantive law, which identifies “which facts are critical and which facts are irrelevant.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, a fact must “carr[y] with it the potential to affect the outcome of the suit under applicable law.” Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1968)(“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”).

         Consequently, summary judgment is appropriate if, drawing all inferences from the underlying facts in the light most favorable to the non-movant, “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); see also Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990) (“There must be sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. . . . In such a review, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”) (internal quotations and citations omitted).

         This does not mean, however, that any dispute found in the record will be sufficient to defeat summary judgment. The nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586. He must “exceed[ ] the ‘mere scintilla' threshold” and offer specific facts, substantiated by the record, that would allow a reasonably jury to find in his favor. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). “[T]estimony and affidavits that ‘merely reiterate allegations made in the complaint, without providing specific factual information made on the basis of personal knowledge' are insufficient” to defeat summary judgment. Velazquez-Garcia v. Horizon Lines of Puerto Rico, 473 F.3d 11, 18 (1st Cir. 2007); see also Guillaume v. Wells Fargo Home Mortgage Corp., 2014 WL 2434650, *3 (D. Mass. 2014); Transamerica Occidental Life Insurance Co. v. Total Systems, Inc., 513 Fed.Appx. 246, 250 (3d Cir. 2013).

         III. ANALYSIS

         A. The FDCPA Claim.

         The FDCPA was passed “to eliminate abusive debt collection practices by debt collectors [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.” 15 U.S.C. § 1692. The legislation prohibits any activity “the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt, ” including, but not limited to activity that “caus[es] a telephone to ring or engag[es] any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. § 1692d.

         Mr. Hatuey's claim under the FDCPA rests on his allegation that ICS made dozens of phone calls to his cellphone between September 2015 and December 2016, seeking to collect a debt owed by a Mr. O'Neill. ICS disputes not only the number and frequency of these calls but also that it placed these calls with the intent to “annoy, abuse, or harass.”

         Thus, to succeed on its motion for summary judgment, ICS must show that no reasonable jury could find either that it contacted Mr. Hatuey “with the “intent to annoy, abuse, or harass, ” 15 U.S.C. § 1692d(5), or that the natural consequence of those phone calls was to “harass, oppress, or abuse” Mr. Hatuey. 15 U.S.C. § 1692d. “Ordinarily, whether conduct harasses, oppresses, or abuses will be a question of fact for the jury.” Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985).

         In determining whether conduct has the natural consequence of “harassing, oppressing, or abusing” the consumer, conduct “is to be viewed from the perspective of the hypothetical unsophisticated consumer.” Pollard v. Law Office of Mindy L. Spaulding, 766 F.3d 98, 103 (1st Cir. 2014).[3] Though this standard is more permissive than the ordinary reasonable person standard, it is not so elastic as to include any kind of conduct; it “preserves an element of reasonableness” that does not allow a debt collector to be held liable for any consumer's “chimerical or farfetched” response to an attempt to collect. Id. at 104. It does not, for example, shield “even the least sophisticated recipients of debt collection activities from the inconvenience and embarrassment that are natural consequences of debt collection.” Pollard v. Law Office of Mindy L. Spaulding, 967 F.Supp.2d 470, 475 (D. Mass. 2013).

         Consequently, phone calls intended to contact a debtor, even if made persistently and over an extended period of time, cannot alone lead to liability under the FDCPA. Rather, I look to the “volume, frequency, and persistence of calls, to whether defendant continued to call after plaintiff requested it cease, and to whether plaintiff actually owed the ...


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