Postl v. Diversified Recovery Bureau LLC

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JOSHUA POSTL, Plaintiff, v. DIVERSIFIED RECOVERY BUREAU LLC, Defendant.

No. 4:22-CV-1122 RLW

United States District Court, E.D. Missouri, Eastern Division

January 23, 2024

MEMORANDUM AND ORDER

RONNIE L. WHITE UNIED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Diversified Recovery Bureau LLC's Motion for Summary Judgment. (ECF No. 19). For the reasons set forth below, the Court will grant in part and deny in part Defendant's Motion.

Background

This suit arises from Plaintiff Joshua Postl's allegations that Defendant unlawfully attempted to collect on his outstanding debt. In his Complaint, Plaintiff asserts violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., (“FDCPA”) and the Missouri Merchandising Practices Act, Mo. Rev. Stat § 407.010 et seq., (“MMPA”). (ECF No. 1). In his response to Defendant's summary judgment motion, Plaintiff expresses his intent to abandon his claims under sections 1692d, 1692e, and 1692f of the FDCPA. (ECF No 22). The Court will therefore grant Defendant summary judgment on those claims.

Plaintiff's remaining claims arise under section 1692c(a)(1) of the FDCPA, which prohibits debt collectors from communicating with consumers at inconvenient times, and the MMPA. Plaintiff's claims under these sections are premised on his allegations that Defendant called his cellular telephone (hereinafter, “phone”) before 8:00 a.m.^[1]on two occasions: on August 31, 2022 at 7:22 a.m., and on September 30, 2022 at 6:51 a.m. The record demonstrates the following relevant facts.

Defendant maintains records of its collectors' communication efforts. These records include Account Notes and a Dialer Log, which reflect manual and auto-dialed telephone calls. (Def.'s Statement of Proposed Facts (“SUMF”) ¶ 5, ECF No. 20). On or about March 10, 2022, Defendant acquired Plaintiff's debt account for servicing. (Id. at ¶ 3). Defendant's Dialer Log shows that on August 31, 2022, Defendant placed an auto-dialed call to Plaintiff's phone at 9:21 a.m. The collection agent who pre-recorded the message utilized in the call was on leave that day. This call was not reflected in Defendant's Account Notes. (Id. at ¶¶ 9-10, 13-15). Defendant's Account Notes reflect that on September 30, 2022, Defendant placed a call to Plaintiff's phone at 8:51 a.m. The collection agent who manually placed the call, upon arriving at Defendant's work facility that day, initially accessed the employee network at 7:56 a.m. (Id. at ¶¶ 11 16-21). The Dialer Log also reflects a call placed to Plaintiff on this date at 8:50 a.m. (SUMF, Ex. Ryan B at 3). According to the deposition testimony of Defendant's Chief Operating Officer, Scott Ryan, calls made through the dialer campaign are not manually entered in the Account Notes, because a collector does not initiate the attempted contact and therefore does not notate the account. (SUMF, Ex. Little D at 31-32).

During his deposition, Plaintiff testified to receiving the two calls in question. According to Plaintiff, he did not answer the calls, but instead listened to the voicemail messages left by Defendant's collectors. Plaintiff further testified that he did not retain the original voicemail messages and was unsure what happened to them when he switched phone carriers, but that he instead possessed recordings of the original voicemail messages. (SUMF, Ex. Little C at 24, 46-48, 61-62).

When questioned about the actual damages he sustained in connection with the calls he received prior to 8:00 a.m., Plaintiff testified, in part: “[Y]ou just don't expect a phone call before 8:00 a.m. unless its an emergency. So I'm getting a phone call, waking up, seeing it's not my, you know, mother telling me something has happened or someone had died. So that, you know, little heart skipping a beat, our blood pressure, and-and then, you know, migraines afterwards.” (Id. at 53-54).

Defendant's records do not show any calls made to Plaintiff's phone on either date prior to 8:00 a.m. (SUMF ¶ 12). Plaintiff's phone records from his service carrier, Mint Mobile, do not show any calls placed by Defendant to Plaintiff-before 8:00 a.m. or at any other time-on the dates in question. (SUMF, Ex. Little E). As relevant, the Account Notes show that on April 19, 2022, two phone calls were placed by a collector to Plaintiff's phone less than a minute apart. (SUMF, Ex. Ryan A at 12). The Dialer Log reflects a single call placed to Plaintiff at this time. (SUMF, Ex. Ryan B at 2).

In support of its summary judgment motion, Defendant argues that Plaintiff did not suffer a concrete injury sufficient to confer Article III standing. Defendant further argues that Plaintiff's section 1692c(a)(1) and MMPA claims fail on the merits because there is no admissible evidence showing Defendant placed any phone calls to him prior to 8:00 a.m. on either date in question.^[2](ECF No. 19).

Legal Standard

The Court may grant a motion for summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). The substantive law determines which facts are material and which are irrelevant. Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

A moving party always bears the burden of informing the Court of the basis of its motion. Celotex Corp., 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating there is a dispute as to a genuine issue of material fact, not the “mere existence of some alleged factual dispute.” Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 247. “‘The nonmoving party may not rely on allegations or denials,' but rather ‘must substantiate [his] allegations with sufficient probative evidence that would permit a finding in [his] favor on more than mere speculation or conjecture.'” Carter v. Pulaski Cnty. Special Sch. Dist., 956 F.3d 1055, 1059 (8th Cir. 2020) (quoting Ball v. City of Lincoln, Neb., 870 F.3d 722, 727 (8th Cir. 2017) (cleaned up)). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The Court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Id. at 249. “‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'” Torgerson, 643 F.3d at 1042 (quoting Reeves v. Sanderson Plumbing Prods.,Inc., 530 U.S. 133, 150 (2000)).

Discussion

A. Article III Standing

Article III of the Constitution limits federal courts' jurisdiction to cases or controversies. Standing is “an essential and unchanging part” of this requirement. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). To establish standing, a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 578 U.S. at 338 (citations omitted). To establish an injury in fact, a plaintiff must show an injury that is “concrete and particularized,” even in the context of a statutory violation. Id. at 340-41. “For standing purposes.. .an important difference exists between (i) a plaintiff's statutory cause of action to sue a defendant over the defendant's violation of federal law, and (ii) a plaintiff's suffering concrete harm because of the defendant's violation of federal law.” TransUnion LLC v. Ramirez, 594 U.S. 413, 426-27 (2021). Concrete harms can be either tangible or intangible. Id. at 425.

Plaintiff here asserts both tangible and intangible harms. The Court finds, however, that it need not address Plaintiff's purported intangible injuries, because it finds his tangible injuries alone sufficient to establish concrete harm for standing purposes. “As Spokeo explained, certain harms readily qualify as concrete injuries under Article III.” TransUnion, 594 U.S. at 425. “The most obvious are traditional tangible harms, such as physical harms.” Id. “If a defendant has caused physical injury to the plaintiff, the plaintiff has suffered a concrete injury in fact under Article III.” Id.

Plaintiff's deposition testimony demonstrates that, because of the phone calls made to him by Defendant's collectors prior to 8:00 a.m., his heart skipped a beat, he experienced heightened blood pressure, and he suffered migraines. Contrary to Defendant's argument, these physical manifestations of distress go beyond general statements of anxiety. See Drechen v. Rodenburg, LLP, No. 22-705, 2022 WL 17543056, at *4 (D. Minn. Dec. 8, 2022) (finding headaches, digestive orders, and chronic pain physical harms that can rise to level of concrete harm; collecting cases); Billups v. I.C. Sys., Inc., No. 21 C...