Johnson v. Capital One Servs., LLC

LAWANDA JOHNSON, Plaintiff, v. CAPITAL ONE SERVICES, LLC, Defendant.

Case No. 18-cv-62058-BLOOM/Valle

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

September 19, 2019

ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Defendant Capital One Bank (USA) N.A.'s ("Defendant" or "Capital One") Motion for Summary Judgment, ECF No. [24] (the "Motion"). Plaintiff Lawanda Johnson ("Plaintiff" or "Johnson") filed a response, ECF No. [37] (the "Response"), to which Defendant filed a reply, ECF No. [40] (the "Reply"). The Court has carefully considered the Motion, all opposing and supporting submissions, the record in this case and the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is granted in part and denied in part.

I. BACKGROUND

This case arises as a result of a series of unwanted telephone calls. In her Complaint, ECF No. [1], Johnson alleges that Capital One attempted to collect a debt arising from a Dress Barn Capital One credit card account. In its attempts to collect on the debt, Capital One allegedly placed a series of telephone calls to Johnson's cellular phone after she revoked her consent to receive calls from an automated telephone dialing system ("ATDS"). As a result, Plaintiff commenced this action against Capital One asserting claims for violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA") and the Florida Consumer Collection Practices Act ("FCCPA"), Fla. Stat. §§ 559.55-559.785.

II. RELEVANT FACTS

Johnson opened a Dress Barn credit card account on October 15, 2015. Defendant's Statement of Material Facts ("Def. SOMF"), ECF No. [25] ¶¶ 1, 3.¹ She regularly used her Dress Barn account until her last purchase on June 6, 2016. Id. ¶¶ 4-5. Thereafter, Johnson defaulted on the Dress Barn account by failing to make payments. Id. ¶ 6.

The card member agreement governing Johnson's Dress Barn account states in pertinent part:

Communications. You agree that we may communicate with you by mail, telephone, email, fax, prerecorded message, automated voice, text message or other means allowed by law regarding your Account.

You agree that we may contact you at any telephone number (including a mobile telephone number that you provide us) and use an automated telephone dialing system or similar device to do so. You agree that we may monitor or record any conversation or other communication with you.

Id. ¶ 8. On January 5, 2017, Johnson accessed her Dress Barn account online by signing in with her username and password. Id. ¶¶ 9-10. In her account, she changed her telephone number to a 2114 number. Id. ¶ 11. Capital One regularly maintains logs of calls and maintained a call log of all calls made to the 2114 number. Id. ¶¶ 13-14. Capital One first called the 2114 number on October 10, 2017. Id. ¶ 19. The call log reflects a conversation that took place on November 5, 2017, during which Johnson stated in a fake British accent that the agent had reached the wrong number. Id. ¶¶ 28, 31; Plaintiff's Opposing Statement of Material Facts ("Pl. SOMF"), ECF No.[36] ¶ 31, 35; ECF No. [46]. The call prompted the agent to make a "do not call again" entry in the call log. Def. SOMF ¶ 31. Nevertheless, because the 2114 number belonged to Johnson, the calls continued. Id. ¶ 32.

Johnson claims she revoked her consent to receive calls to the 2114 number in September 2017 by asking Capital One to stop calling because she could not make payments in the aftermath of Hurricane Irma, and again on May 9, 2018. However, the parties agree that no calls were made to the 2114 number in September 2017. Id. ¶¶ 33-35; Pl. SOMF ¶ 35. Johnson claims she revoked her consent on May 9, 2018, by asking not to be called using an auto dialer or prerecorded message, but Capital One's call log does not reflect that request. Def. SOMF ¶ 36-37. Johnson kept her own log of calls, which provide written guidance from her attorney to "ONLY REVOKE 1 TIME PER DEBT COLLECTOR: Tell them: 'DO NOT CALL ME USING AN AUTODIALER OR PRE-RECORDED MESSAGE ANYMORE.'" Id. ¶¶ 38-40.

In addition, Johnson asserts that prior to being connected to a representative on May 9, 2018, and on every call thereafter, there was a noticeable pause. Pl. SOMF ¶¶ 46-47. Johnson also asserts that she received a call from Capital One on May 16, 2018, during which she spoke to a representative named Bill, who told her that Capital One had used an autodialer. Id. ¶ 48. In her Declaration, Johnson further states that she received prerecorded voicemail messages from Capital One on May 19, 2018, and on at least thirty-six (36) other occasions. Id. ¶ 49. Capital One disputes these facts. Capital One now moves for summary judgment on Johnson's TCPA and FCCPA claims.

III. LEGAL STANDARD

A court may grant a motion for summary judgment "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). The parties may support their positions by citation to the record, including, inter alia, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P. 56(c). An issue is genuine if "a reasonable trier of fact could return judgment for the non moving party." Miccosukee Tribe of Indians of Fla. v. United States, 516 F. 3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it "might affect the outcome of the suit under the governing law." Id. (quoting Anderson, 477 U.S. at 247-48). The court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in the party's favor. Crocker v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which a jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Comm'n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).

The moving party shoulders the initial burden to demonstrate the absence of a genuine issue of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant satisfies this burden, "the nonmoving party 'must do more than simply show that there is some metaphysical doubt as to the material facts.'" Ray v. Equifax Info. Servs., L.L.C., 327 F. App'x 819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, "the non-moving party 'must make a sufficient showing on each essential element of the case for which he has the burden of proof.'" Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must produce evidence, going beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, andadmissions on file, designating specific facts to suggest that a reasonable jury could find in the non-moving party's favor. Shiver, 549 F.3d at 1343.

In resolving the issues presented under Fed. R. Civ. P. 56, "the court may not weigh conflicting evidence to resolve disputed factual issues; if a genuine dispute is found, summary judgment must be denied." Carlin Commc'n, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986); see also Aurich v. Sanchez, No. 08-80113-CIV, 2011 WL 5838233, at *1 (S.D. Fla. Nov. 21, 2011) ("If a reasonable fact finder could draw more than one inference from the facts, and that inference creates an issue of material fact, then the court must not grant summary judgment." (citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913 (11th Cir. 1993)). Even "where the parties agree on the basic facts but disagree about the factual inferences that should be drawn from those facts," summary judgment may be inappropriate. Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).

However, summary judgment is inappropriate where the Court would be required to weigh conflicting renditions of material fact or determine witness credibility. See Hairston, 9 F.3d at 919; see also Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) ("It is not the court's role to weigh conflicting evidence or to make credibility determinations; the non-movant's evidence is to be accepted for purposes of summary judgment."); see also Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he [or she] is ruling on a motion for summary judgment or for a directed verdict." (quoting Anderson, 477 U.S. at 255)); Gary v. Modena, No. 05-16973, 2006 WL 3741364, at *16 (11th Cir. Dec. 21, 2006) (Fed. R. Civ. P. 56 precludes summary judgment where court would be required to reconcile conflicting testimony or assess witness credibility); Ramirez v. Nicholas, No.13-60820-CIV, 2013 WL 5596114, at *4 (S.D. Fla. Oct.11, 2013) ("The Court may not make the credibility determinations needed to resolve this conflict; only the jury may do so."). Through this lens, the Court considers the Motion.

IV. DISCUSSION

In the Motion, Capital One argues that it is entitled to summary judgment on Johnson's TCPA and FCCPA claims because Johnson cannot meet her burden to prove that an ATDS was used, Johnson expressly consented to receive calls on her cell phone and did not effectively revoke that consent. Moreover, Capital One's calls did not violate the FCCPA, and if they did, any violation was the result of a bona fide error.² The Court considers the arguments in turn.

A. There is insufficient evidence to create a genuine issue of material fact as to whether Capital One used an ATDS

The...