Fleming v. Associated Credit Servs., Inc.

342 F.Supp.3d 563

Diana FLEMING, Plaintiff,

v.ASSOCIATED CREDIT SERVICES, INC., Defendant.

Civ. No. 16-3382 (KM) (MAH)

United States District Court, D. New Jersey.

Signed September 21, 2018

Amy Lynn Bennecoff Ginsburg, Rachel Rebecca Stevens, Richard J. Albanese, Kimmel & Silverman PC, Ambler, PA, for Plaintiff.

James S. Murphy, Garrity, Graham, Favetta & Flinn, PC, East Hanover, NJ, for Defendant.

Kevin McNulty, United States District Judge

Diana Fleming sues Associated Credit Services, Inc. ("ACS"), over a series of allegedly harassing phone calls that occurred from September 2015 to December 2015, which she claims were harassing in nature. These were dunning calls related to Ms. Fleming's unpaid electric bills; the power company had assigned the debt to ACS for collection. Approximately sixteen calls are alleged; two involved actual conversation between a representative of ACS and Ms. Fleming. Ms. Fleming now brings claims under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. and the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227. ACS has moved for summary judgment. For the reasons explained in this opinion, the summary judgment motion is granted in part and denied in part.

I. Summary¹

On or about September 2015, Ms. Fleming, a customer of Jersey Central Power & Light Company ("the power company"), experienced some financial difficulties and began to fall behind on her utility bill payments to the power company. (DSMF ¶¶ 1–2; PSMF ¶¶ 1–2.) Sometime between January and March 2015, she agreed to a payment plan with the power company but that payment plan "fell through." (DSMF ¶¶ 3-4; PSMF ¶¶ 3-4.) She was also experiencing some difficulty with the payment of other bills. (DSMF ¶ 5; PSMF ¶ 5.) On September 2, 2015, the power company placed the debt with ACS for collection. (PSMF ¶ 41; DCSMF ¶ 41.)

Sometime around the end of July 2015, Ms. Fleming claims she received a call about her bill. (DSMF ¶ 10; PSMF ¶ 10.) By her description, the caller was male, but she does not know the name of the individual, how he identified himself, or for what company he worked. (DSMF ¶¶ 11–12; PSMF ¶¶ 11–12.) Ms. Fleming states that she presumed that this man worked for either the power company or a debt collector working on its behalf. (PSMF ¶ 11; DSMF ¶ 11.) She was driving at the time and requested that the man call back later or give her a number she could use to call him back. (Id. )

On another phone call about the debt on September 15, 2015,² Ms. Fleming spoke with a man and a woman from ACS. (DSMF ¶¶ 13–14; PSMF ¶¶ 13–14.) The call began with the male representative, who inquired about her ability to pay her debt. (DSMF ¶¶ 16–17; PSMF ¶¶ 16–17.)

She told the male representative that she could not afford to pay the debt because she had lost her job, had no money, had just come out of a domestic violence situation, was living with someone else, and was struggling to feed her kids. (PSMF ¶ 42; DCSMF ¶ 42.) The male ACS representative then transferred Ms. Fleming to a female supervisor. (PSMF ¶ 44; DCSMF ¶ 44.) The supervisor asked Ms. Fleming if she was receiving assistance from the state or some other source and told Ms. Fleming about sources she could turn to for assistance. (DSMF ¶ 28; PSMF ¶ 28.) Ms. Fleming told the supervisor that she was not aware of any government or charitable programs that would be able to help her. (PSMF ¶ 45; DCSMF ¶ 45.) Towards the end of the conversation, the supervisor said, "Good luck. I might call again in the future, but I wish you good luck. Okay?," to which Ms. Fleming responded, "Okay. Thank you so much." (DSMF ¶ 28; PSMF ¶ 28.)

Ms. Fleming recalls another conversation with an ACS representative about her debt. She states that it occurred sometime after the call on September 15, 2015, but she could not remember who called or how long the conversation lasted. (DSMF ¶ 19; PSMF ¶ 19.) She also could not find this conversation in her call records. (DSMF ¶¶ 20; PSMF ¶¶ 20.) At her deposition, however, Ms. Fleming testified that she told the ACS representative during this phone conversation "to stop calling because [her] current situation did not change" since the last time she spoke to an ACS representative on September 15, 2015. (DSMF ¶ 19; PSMF ¶ 19.)

On December 7, 2015, counsel for Ms. Fleming sent a letter to ACS stating that they would be representing her and directing ACS to have no further direct communication with her. Counsel also explicitly revoked Ms. Fleming's consent to be called by ACS on her cell phone number. (DSMF ¶ 25; PSMF ¶ 25.) ACS has not directly contacted Ms. Fleming since receiving that letter. (DSMF ¶ 26; PSMF ¶ 26.) Ms. Fleming also stipulated at her deposition that she did not sustain any actual damages as a result of the phone calls. (DSMF ¶ 27; PSMF ¶ 27.)

According to ACS's call log, after the September 15, 2015 phone conversation Ms. Fleming received 14 more phone calls from ACS on the following dates: September 22, September 26, October 1, October 8, October 15, October 20, October 26, October 30, November 4, November 12, November 16, November 21, December 1, and December 3, 2015. (PSMF ¶ 47; DCSMF ¶ 47.) Ms. Fleming did not recall answering any of those calls (unless one of them was the call to which she could not attach a specific date). Nevertheless, she found them "annoying, harassing, and invasive." (Id. ; PSMF ¶ 22.) ACS's call logs back up Ms. Fleming's statement that she spoke to an ACS representative on September 15, 2015. The logs do not corroborate the existence of the other two calls in which she says she actually spoke to a representative (i.e. , the call in July 2015 and the one on some unspecified date after September 15, 2015).

ACS made all calls to Ms. Fleming that appear in the call log using the LiveVox Human Call Initiator ("HCI") System. (DSMF ¶ 29; PSMF ¶ 29.) Ms. Fleming and ACS disagree over the exact makeup and capabilities of the LiveVox HCI system.

According to ACS, the HCI system requires human intervention before a call can be initiated and that it is not capable of automated or predictive dialing. (DSMF ¶¶ 31–32.) Further, it describes HCI as a distinct outbound dialing system that is separate from the other dialing systems used by LiveVox at the hardware and software level. (DSMF ¶ 33.) ACS says that HCI uses a set of servers exclusively dedicated to HCI calls and cannot launch automated calls. (Id. ) ACS does not install any LiveVox system on its own computers. (DSMF ¶ 33; PSMF ¶ 33.) To place a call using the HCI system, a "clicker agent" must physically "click on" or press the enter key to initiate a call to a particular number, and there must be a "closer agent" who is available to take the call. (DSMF ¶ 34.) The "clicker agent" has the ability to determine how often calls are made based on the availability of a "closer agent." (Id. ) HCI allegedly does not have the capacity to auto-dial, and none of its features can be modified, activated, deactivated, or otherwise altered to enable it to auto-dial. (Id. ¶ 35.) HCI cannot produce numbers to be dialed using a random or sequential number generator. (DSMF ¶ 36; PSMF ¶ 36.) Nor does it use an artificial or pre-recorded voice. (DSMF ¶ 37; PSMF ¶ 37.)

According to Ms. Fleming, the distinctions that ACS draws between HCI and an autodial system are not meaningful. ACS has a computer file of hundreds or thousands of account numbers with phone numbers. Those numbers, says Ms. Fleming, are loaded into "campaign database" software. That software in turn uses preprogrammed criteria to sort the phone numbers and send them to one or more of four LiveVox servers for dialing: the Automated Server; the HCI server; the Preview-All Server; or the Manual Server. (PSMF ¶ 48; see also PSMF ¶ 49.) When the combined system made up of the campaign database and the four servers is used, calls can be launched using the Automated Server where the computer dials each call from the stored list. (PSMF ¶ 50.) Calls can also be routed by the campaign database to the HCI server, where the system selects the next telephone number to call from the phone numbers stored in its database, where it displays each number one-at-a-time on a screen for a "clicker agent," whose sole job is to push a button that dials the number chosen by the computer. (PSMF ¶ 51.) In the HCI mode, the "clicker agent" does not have a choice of which number to call but merely selects the number presented to him or her. (PSMF ¶ 52.) The agent does not have the option to skip the number and go on to another call or to decline the call; the agent must either launch the call or log out of the system and stop working altogether. (PSMF ¶ 53; see also PSMF ¶ 54.) Under either the Automated or HCI server, there is no person on the phone line when the call is made, and the call is only transferred to a live agent to handle the call if the computer system detects that a human voice has answered. (PSMF ¶ 55.)

In June 2016, Ms. Fleming brought suit against ACS, making claims under the TCPA and FDCPA. ACS now moves for summary judgment on several grounds. First, it argues that Ms. Fleming cannot show that the allegedly harassing calls were placed without her consent.³ (Def. Br. at 11.) Second, it argues that Ms. Fleming cannot show that the calls were placed using an autodialer as defined under the TCPA. (Id. at 12.) Third, it argues that Ms. Fleming has not shown a sufficient number of phone calls to warrant relief under the FDCPA. (Id. at 16–19.)

II. Discussion

a. Standard of Review

Fed. R. Civ. P. 56(a) provides that summary judgment should be granted "if the movant 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) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Kreschollek v. S. Stevedoring Co. , 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary...