Mais v. Gulf Coast Collection Bureau, Inc.

944 F.Supp.2d 1226

Mark S. MAIS et al., Plaintiffs,

v.GULF COAST COLLECTION BUREAU, INC., Florida United Radiology, L.C., Sheridan Acquisition Associates, P.A., Defendants.

Case No. 11–61936–Civ.

United States District Court, S.D. Florida.

May 8, 2013.

Order Granting Certification June 10, 2013.

O. Randolph Bragg, Horwitz Horwitz & Associates, Chicago, IL, for Plaintiffs.

Donald A. Yarbrough, Fort Lauderdale, FL, for Plaintiffs/Defendants.

Ernest Henry Kohlmyer, III, Urban Thier Federer & Chinnery, P.A., Orlando, FL, Eileen Lynskey Parsons, Jason Seth Mazer, Ver Ploeg & Lumpkin, Miami, FL, for Defendants.

SUMMARY JUDGMENT ORDER

ROBERT N. SCOLA, JR., District Judge.

THIS MATTER is before the Court upon the Motions for Summary Judgment [ECF Nos. 119, 120], filed by Defendants Gulf Coast Collection Bureau, Inc. (“Gulf Coast”), Florida United Radiology, L.C. (“Florida United”) and Sheridan Acquisition Associations, P.A. (“Sheridan”), and the Motion for Partial Summary Judgment [ECF No. 156], filed by Plaintiff Mark Mais. For the reasons set forth below, the Court finds that Sheridan and Florida United are entitled to summary judgment, but that Gulf Coast is not. The Court also finds that Plaintiff is entitled to summary judgment in part.

Introduction¹

In 2009, Plaintiff Mark Mais went to the emergency room at Westside Regional Hospital (the “Hospital” or “Westside”) in Broward County, Florida to obtain treatment. Because Plaintiff was ill, his wife, Laura Mais, interacted with the Hospital admissions staff on his behalf. During the admissions process, Plaintiff's wife provided Plaintiff's cellular telephone number to the Hospital's admissions representative, although the number was identified as a residential line. Plaintiff's wife also signed the admissions documents on Plaintiff's behalf, including a form entitled “Conditions of Admission.”

In signing that form, Plaintiff's wife acknowledged receiving the Hospital's “Notice of Privacy Practices” and agreed that “the hospital and the physicians or other health professionals involved in the inpatientor outpatient care [may] release [Plaintiff's] healthcare information for purposes of treatment, payment or healthcare operations,” including “to any person or entity liable for payment on the patient's behalf in order to verify coverage or payment questions, or for any other purpose related to benefit payment.” The “Notice of Privacy Practices” also stated that the Hospital “may use and disclose health information about [Plaintiff's] treatment and services to bill and collect payment from [Plaintiff], [his] insurance company or a third party payor.”

After being admitted to the Hospital, Plaintiff received treatment from Florida United Radiology, L.C. (“Florida United”), for which he incurred a medical debt in the amount of $49.03. Florida United, a hospital-based provider that performs clinical services on behalf of hospital facilities, is the entity to which Plaintiff's debt was owed. Sheridan Acquisition, P.A. (“Sheridan”) is a holding company for Florida United. The two entities are separately run and operated; Sheridan's involvement is solely one of ownership.

McKesson, also known as Per–Se Technologies, was the billing company used by Florida United at the time Plaintiff received care. McKesson, as Florida United's agent, was permitted to access demographic information from the Hospital and to send out bills on its behalf. Plaintiff never provided his number to Florida United, the party to whom the debt was owed. Instead, McKesson, Florida United's billing vendor, electronically retrieved Plaintiff's phone number and other information from the Hospital. Thereafter, Plaintiff was billed $49.03 for the treatment he received from Florida United, but failed to pay the debt. Consequently, the account was forwarded to Gulf Coast Collection Bureau, Inc. (“Gulf Coast”) for collection pursuant to a written agreement between Sheridan, as Florida United's parent, and Gulf Coast.

Gulf Coast is a debt collector that uses a predictive dialer to dial telephone numbers through automated technology without human involvement. Using its predictive dialer, Gulf Coast placed calls to the Plaintiff and other putative class members in an effort to collect medical debts owed to Florida United. With respect to Plaintiff's $49.03 debt, Gulf Coast attempted between 15 and 30 debt collection calls to Plaintiff's cell phone and left four messages relating to the debt, allegedly in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C § 227(b)(1)(A)(iii). See First Am. Compl. ¶ 24.

Gulf Coast, Florida United, and Sheridan (collectively, the “Defendants”) move for summary judgment, arguing that Plaintiff provided “prior express consent” to be called and, therefore, they are not liable for violating the TCPA, section 227(b)(1)(A)(iii). Florida United and Sheridan also argue that they cannot be held vicariously liable for Gulf Coast's calls, even assuming that Gulf Coast violated the statute. Plaintiff moves for partial summary judgment, advancing arguments that largely mirror the Defendants' contentions. He also seeks a ruling as to damages and injunctive relief.

Summary Judgment Standard

Under the familiar standard of Federal Rule of Civil Procedure 56, the movant is entitled to summary judgment if he shows that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law. See In re Harwell, 628 F.3d 1312, 1317 (11th Cir.2010). “An issue of fact is ‘material’ if, under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir.2004). “An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id. at 1260. A court may not weigh conflicting evidence to resolve disputed factual issues; if a genuine dispute is found, summary judgment must be denied. Skop v. City of Atlanta, GA, 485 F.3d 1130, 1140 (11th Cir.2007).

In applying the summary judgment standard, the district court must view the facts and evidence in light most favorable to the non-movant and draw all reasonable inferences in his favor. See Loren v. Sasser, 309 F.3d 1296, 1301–02 (11th Cir.2002). “The moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial,” and “[o]nly when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). When the burden shifts, the non-moving party “may not rest upon the mere allegations or denials of his pleadings,” but must “go beyond [them]” and affirmatively “set forth specific facts showing that there is a genuine issue for trial.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Sequence of Rulings in Class Action Case

Typically, district courts rule upon class certification motions before deciding summary judgment. Federal Rule of Civil Procedure 23(c) provides that the court should decide class certification at “an early practicable time,” which suggests that it should usually precede any summary judgment rulings. “But ‘usually’ is not ‘always,’ and ‘practicable’ allows for wiggle room.” See Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir.1995); see also Curtin v. United Airlines, 275 F.3d 88, 92 (D.C.Cir.2001). Indeed, as the Eleventh Circuit has held, the trial judge has the discretion to reverse the order of things and “to consider the merits of the [plaintiff's] claims before [ruling on] their amenability to class certification.” See Telfair v. First Union Mortg. Corp., 216 F.3d 1333, 1343 (11th Cir.2000).

Sometimes, as in this case, the defendants choose to move for summary judgment before the district court decides whether the case should proceed as a class action. Defendants may do so hoping that they will obtain a favorable ruling on the merits, disposing of the named plaintiff's claims, and ending the need to decide class certification. See, e.g., Cowen, 70 F.3d at 941;Curtin, 275 F.3d at 92. As Circuit Judge Posner explained in Cowen:

Class actions are expensive to defend. One way to try to knock one off at low cost is to seek summary judgment before the suit is certified as a class action. A decision that the claim of the named plaintiffs lacks merit ordinarily, though not invariably, disqualifies the named plaintiffs as proper class representatives. The effect is to moot the question whether to certify the suit as a class action unless the lawyers for the class manage to find another representative.

Cowen, 70 F.3d at 941. Thus, when the defendants tactically decide to move for summary judgment first, the district court does not err by ruling on their motion before deciding class certification. See, e.g., Cowen, 70 F.3d at 941;Curtin, 275 F.3d at 92;see also Webster v. Royal Caribbean Cruises, Ltd., 124 F.Supp.2d 1317, 1321 (S.D.Fla.2000) (Gold, J.). In such a case, “the defendant is assuming the risk of stare decisis protection rather than the protection of res judicata,” and “[w]here the defendant seeks summary judgment knowing of the possibility that other plaintiffs will enter the case and not be bound thereby, it is not for the plaintiffs or the court to deter them from assuming that risk.” See Thornton v. Mercantile Stores Co., Inc., 13 F.Supp.2d 1282, 1289–90 (M.D.Ala.1998); see also Cowen, 70 F.3d at 941–42 (by obtaining summary judgment first, “the defendant loses the preclusive effect on subsequent suits against him of class certification but saves the added expense of defending a class action and may be content to...