United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE
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.
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. Mr. Hatuey informed ICS that he was not
Mr. O'Neill and asked ICS to stop contacting him.
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.
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
STANDARD OF REVIEW
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.”).
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).
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).
The FDCPA Claim.
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.
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
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).
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). 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.
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 ...