Carl v. First Nat'l Bank of Omaha

DAVID CARL, Plaintiff, v. FIRST NATIONAL BANK OF OMAHA, Defendant.

Docket no. 2:19-cv-00504-GZS

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

June 15, 2021

ORDER ON PENDING CROSS-MOTIONS

Before the Court are two Cross-Motions: (1) the Motion for Summary Judgment by Defendant First National Bank of Omaha ("FNBO") (ECF No. 39); and (2) the Motion for Summary Judgment by Plaintiff David Carl (ECF No. 40). Having reviewed the Motions and related submissions filed by the parties (ECF Nos. 41-51 & 53-56), the Court GRANTS Defendant's Motion (ECF No. 39) and DENIES Plaintiff's Motion (ECF No. 40).

I. STANDARD OF REVIEW

Generally, a party is entitled to summary judgment if, on the record before the Court, it appears "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). "A genuine dispute is 'one that must be decided at trial because the evidence, viewed in the light most flattering to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.'" Flaherty v. Entergy Nuclear Operations, Inc., 946 F.3d 41, 53 (1st Cir. 2019) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). "A fact is 'material' if 'its existence or nonexistence has the potential to change the outcome of the suit.'" Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

Once the moving party has made this preliminary showing, the nonmoving party must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (internal quotation marks and ellipsis omitted); see also Fed. R. Civ. P. 56(e). "Mere allegations, or conjecture unsupported in the record, are insufficient." Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) ("A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation."). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment for the moving party." In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993). "However, summary judgment is improper when the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side." Morales-Melecio v. United States (Dep't of Health and Hum. Servs.), 890 F.3d 361, 368 (1st Cir. 2018) (internal quotation marks omitted).

In addition to the limitations imposed by Federal Rule of Civil Procedure 56, District of Maine Local Rule 56 prescribes a detailed process by which the parties are to place before the Court the "material facts . . . as to which the moving party contends there is no genuine issue . . . ." D. Me. Loc. R. 56(b). This local rule requires each statement of material fact to be "followed bya citation to the specific page or paragraph of identified record material supporting the assertion." D. Me. Loc. R. 56(f). A party opposing a motion for summary judgment must then file an opposing statement in which it admits, denies, or qualifies the moving party's statements, with citations to supporting evidence, and in which it may set forth additional facts, again with citation to supporting evidence. D. Me. Loc. R. 56(c). Ultimately, in constructing the narrative of undisputed facts for purposes of summary judgment, the Court "may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment." D. Me. Loc. R. 56(f).

The existence of cross-motions for summary judgment does not change the standard for construing the undisputed facts. Rather, the Court is required to "view each motion separately and draw all reasonable inferences in favor of the respective non-moving party." Roman Cath. Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013). In accordance with these standards, the Court constructs the undisputed material facts from the record in the following section.

II. BACKGROUND¹

In July 2017, David Carl applied for and obtained a "First Bankcard" credit card from FNBO. (Pl. SMF (ECF No. 41), PageID # 1580; Def. Resp. SMF (ECF No. 43), PageID # 1616-17.) In applying for this account, Carl provided FNBO with his cellular telephone number. (Def. Resp. SMF, PageID # 1623; Pl. Reply SMF (ECF No. 48), PageID # 1668.)

The terms and conditions of Carl's account with FNBO were set forth in a cardmember agreement. (Id.; see generally Ex. T (ECF No. 33-18).) As relevant here, the agreement contained the following provision:

We may call . . . you (using live operators, automatic dialing devices, or recorded messages) at home or work[,] and those calls . . . will not be considered unsolicited. If you provide a cell phone number to us, either on the application or to a representative, or if you place a cell phone call to us, you agree that we may contact you (including for collection purposes) at that cell phone number. . . .

(Ex. T, PageID # 1188.) FNBO's internal policies required it to consider an oral request to cease calls as a revocation of prior consent to be called, but this was not explicitly provided for in the agreement. (Pl. SMF, PageID # 1582; Def. Resp. SMF, PageID # 1618.) The agreement also contained the following disclaimer:

[FNBO's] failure to exercise, or our delay in exercising, any of our rights under the Agreement for any reason will not mean we are unable to exercise those rights later. We may, from time to time on a consistent or inconsistent basis, take (or refrain from taking) certain actions that benefit you but that are not required by this Agreement or applicable law. Any such course of dealing or course of performance shall not be considered to add to our legal obligations to you under this Agreement. We may discontinue any such course of dealing or course of performance at any time without prior written notice.

(Ex. T, PageID # 1187.)²

In February 2019, Carl became past due on his account balance. (Pl. SMF, PageID # 1581; Def. Resp. SMF, PageID # 1617.) FNBO then started calling Carl approximately one to six times a day, in order to collect on amounts past due. (Id.) These calls originated from the following fourtelephone numbers: (800) 537-3302, (888) 893-9519, (800) 424-6920, and (888) 810-5673, all of which FNBO owned. (Id.; Def Resp. SMF, PageID # 1626; Pl. Reply SMF, PageID # 1669.)

FNBO utilized a "dialer team" to make daily decisions regarding whom to call, at what number, and whether a message would be left. (Pl. SMF, PageID # 1587; Def. Resp. SMF, PageID # 1622.) FNBO then used a LiveVox Voice Portal Dialing System ("Voice Portal") to place these calls. (Pl. SMF, PageID # 1586; Def. Resp. SMF, PageID # 1621.) The Voice Portal system operated "campaigns," which consisted of files with a list of accounts to call. (Id.) These campaigns were loaded into the Voice Portal system and stored for later automatic dialing. (Pl. SMF, PageID # 1586, Def. Resp. SMF, PageID # 1622.) As relevant here, the Voice Portal system was configured so that, if an automatically dialed call connected, the call would be immediately transferred to an agent. (Id.) The Voice Portal system also could be configured, in the event it connected with an answering machine or voicemail, to automatically (1) leave a message employing an artificial voice, (2) pass the connection to an agent, or (3) leave no message and disconnect. (Pl. SMF, PageID # 1588; Def. Resp. SMF, PageID # 1622.)

After Carl began receiving calls from FNBO, he connected with his present attorneys and provided them with the four numbers from which FNBO had been calling, as well as correspondence that included contact telephone numbers for FNBO. (Def. Resp. SMF, PageID # 1624; Pl. Reply SMF, PageID # 1668.) On or about March 13, 2019, Carl, with the assistance of his attorneys, called (877) 395-3606 ("x3606").³ (Def. Resp. SMF, PageID #s 1624-25; Pl. Reply SMF, PageID # 1668.) Carl then had the following conversation:

Representative: First Bankcard, Keandra Thompson speaking.

Plaintiff: Yes, hi, I'm returning a call.

Representative: Uhm, ok. Uhm, can you just hold on for just a second. I'm sorry... Excuse me sir, can you, uh, give me the phone number that we called you from?

Plaintiff: Yup, [redacted]-5865.

Representative: You said, [redacted]-5865?

Plaintiff: Yes ma'am.

Representative: I'm trying to pull up your account and it won't allow me to. Would you, uhm, state me your full social number and I'll be able to pull up your account?

Plaintiff: What's that?

Representative: I said, would you be able to give me your full social so I can pull up your account because I typed in your, uhm, phone number and it didn't pop up.

Plaintiff: Ok, [Plaintiff's social security number].

Representative: You said [Plaintiff's social security number]?

Plaintiff: Yes ma'am.

Representative: That's not popping up either. (Speaking to someone else) Yeah, I pushed enter.

Plaintiff: I keep getting phone calls from you guys and I really wish you would stop calling.

Representative: Uhm, do you know what number that we're calling?

Plaintiff: Yeah, you are calling my [redacted]-5865. It's the only phone number I have.

Representative: Ok sir, so I am trying to pop up your account, but it won't allow me to. I typed in your phone number

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