Stoops v. Wells Fargo Bank, N.A.

197 F.Supp.3d 782

Melody STOOPS, Plaintiff,

v.WELLS FARGO BANK, N.A., Defendant.

CIVIL ACTION NO. 3:15-83

United States District Court, W.D. Pennsylvania.

Signed June 24, 2016

Glenn C. Romano, Glenn C. Romano, P.C., Hatboro, PA, Joseph Richard Manning, Jr., The Law Offices of Joseph R. Manning, Jr., APC, Newport Beach, CA, Gregory H. D. Alumit, Vincent D. Howard, Howard Law, PC, Anaheim, CA, for Plaintiff.

Martin C. Bryce, Jr., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, PA, Divya Shenoy Gupta, Eric J. Troutman, Dorsey & Whitney LLP, Costa Mesa, CA, for Defendant.

MEMORANDUM OPINION AND ORDER

KIM R. GIBSON, UNITED STATES DISTRICT JUDGE

I. Introduction

This matter comes before the Court upon cross-motions for summary judgment filed by Defendant Wells Fargo Bank, N.A. (ECF No. 44) and Plaintiff Melody Stoops (ECF No. 56). These matters have been fully briefed (see ECF Nos. 44, 54, 55, 56, 61, 64, 65, 67, 68, 70, 76, 77) and are ripe for disposition. For the reasons that follow, Defendant's motion for summary judgment will be GRANTED , and Plaintiff's motion for summary judgment will be DENIED .

II. Jurisdiction and Venue

The Court has jurisdiction over the instant action pursuant to 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391.

III. Background

The following facts are not in dispute. In June 2014, Plaintiff bought and activated prepaid cell phones that were serviced by Tracfone Wireless ("Tracfone"). (ECF Nos. 56–1 ¶ 1; 65-1 ¶ 1.) To activate the cell phones, Plaintiff provided Tracfone with the last four digits of each cell phone's serial number and a zip code of her choosing. (ECF Nos. 56–1 ¶ 2; 65-1 ¶ 2.) Plaintiff selected Florida zip codes, and Tracfone assigned telephone numbers for each cell phone. (ECF Nos. 56–1 ¶¶ 3–4; 65-1 ¶¶ 3-4.) Despite residing in Pennsylvania, Plaintiff selected locations in Florida that she knew to be economically depressed " ‘because there is a depression in Florida,’ " where " ‘people would be usually defaulting on their loans or their credit cards,’ " and because it is the location with which " ‘[she] is most familiar.’ " (ECF Nos. 44–1 ¶¶ 8-9 (quoting ECF No. 44–4 at 16); 54-1 ¶¶ 8-9 (quoting ECF No. 54-7 at 35-36).)

Plaintiff has purchased at least thirty-five cell phones and cell phone numbers with prepaid minutes for the purpose of filing lawsuits under the Telephone Consumer Protection Act ("TCPA"). (See ECF Nos. 44–1 ¶¶ 3–4, 7; 54-1 ¶¶ 3-4, 7.) Plaintiff added minutes to her cell phones by buying "airtime cards" for $19.99 so that the cell phones would receive more calls. (See ECF Nos. 44–1 ¶¶ 10–11; 54-1 ¶¶ 10-11; 56-1 ¶¶ 15-16; 65-1 ¶¶ 15-16.) She was not reimbursed for the purchase of the cell phones or for adding minutes to the cell phones. (ECF Nos. 56–1 ¶ 17; 65-1 ¶ 17.)

After purchasing and charging the cell phones, Plaintiff waited for them to ring and sometimes answered the calls to identify the caller. (ECF Nos. 44–1 ¶ 12; 54-1 ¶ 12.) Plaintiff tracks the incoming calls to her cell phones on a call log sheet. (ECF Nos. 44–1 ¶ 13; 54-1 ¶ 13.) She carries her cell phones with her when she travels so that she can continue to record the incoming calls. (ECF Nos. 44–1 ¶ 14; 54-1 ¶ 14.) Although Plaintiff occasionally informed the caller to stop calling, she intended for the calls to continue because she " ‘was hopefully going to ask [her] lawyers to do trebling with knowing and willful’ " violations of the TCPA if they did. (ECF Nos. 44–1 ¶¶ 15–16 (quoting ECF No. 44–4 at 23); 54-1 ¶¶ 12, 15-16.) Plaintiff has filed at least eleven TCPA cases in this jurisdiction, although she "[does not] know how many," and has sent at least twenty pre-litigation demand letters, although she "[does not] know" how many. (ECF Nos. 44–1 ¶ 18 (quoting ECF No. 44–4 at 5–6, 33–34); 54-1 ¶ 18.) Plaintiff's sister, Taisha Campbell, has also filed TCPA lawsuits of her own. (ECF Nos. 44–1 ¶ 27; 54-1 ¶ 27.)

In 2014, Plaintiff bought two cell phones that were assigned (863) XXX-6128 and (305) XXX–4589 as telephone numbers. (ECF Nos. 44–1 ¶ 20; 54-1 ¶ 20.) Plaintiff selected these area codes because she was familiar with the areas and because she believed that the areas were economically depressed. (ECF Nos. 44–1 ¶ 21; 54-1 ¶ 21.) Defendant had two delinquent customers in area codes 863 and 305 who had owned the telephone numbers prior to Plaintiff and consented to receiving auto-dialed calls or calls with a prerecorded voice. (ECF Nos. 44–1 ¶ 22; 54-1 ¶ 22.)

On October 21, 2014, Defendant's agent, Yolanda Watson, spoke with Plaintiff. (ECF Nos. 56–1 ¶ 6; 65-1 ¶ 6.) On October 23, 2014, Defendant's agent, Mariam Aziz, spoke to Plaintiff. (ECF Nos. 56–1 ¶ 7; 65-1 ¶ 7.) Between September 15, 2014, and November 20, 2014, Defendant initiated seventy-three telephone calls to the telephone number (863) XXX-6128, and nineteen of these calls resulted in successful communication.

(ECF Nos. 56–1 ¶ 9; 65-1 ¶ 9.) Collectors in Defendant's home mortgage group dialed the telephone number in an effort to reach customers with the last name of "Newman." (ECF Nos. 56–1 ¶ 11; 65-1 ¶ 11.) Between September 23, 2014, and November 13, 2014, Defendant initiated twelve telephone calls to the telephone number (305) XXX-4589, and five of these calls resulted in successful communication. (ECF Nos. 56–1 ¶ 10; 65-1 ¶ 10.) Defendant's collectors dialed the telephone number in an effort to reach customers with the last name of "Pereira." (ECF Nos. 56–1 ¶ 12; 65-1 ¶ 12.) Plaintiff did not provide Defendant with either of these telephone numbers and did not inform Defendant that it could call her at the telephone numbers. (ECF Nos. 56–1 ¶¶ 18–19; 65-1 ¶¶ 18-19.) She does not know Defendant's previous customers who used the telephone numbers. (ECF Nos. 56–1 ¶ 20; 65-1 ¶ 20.) Defendant placed the calls to (863) XXX-6128 and (305) XXX-4589 in an attempt to reach its customers, not Plaintiff. (ECF Nos. 44–1 ¶ 23; 54-1 ¶ 23.)

Plaintiff filed a complaint in the Court of Common Pleas of Cambria County on March 4, 2015. (ECF No. 1-2.) Defendant removed the matter to this Court on March 31, 2015, (see ECF No. 1), and filed an answer to the complaint (ECF No. 5). Defendant filed a motion for summary judgment on December 10, 2015, (ECF No. 44), and Plaintiff filed a cross-motion for summary judgment on January 21, 2016, (ECF No. 56). After the parties fully briefed their respective motions, the Court held oral argument on May 23, 2016, (ECF No. 78), and this matter is now ripe for disposition.

IV. Applicable Law

A grant of summary judgment is appropriate when the moving party establishes that " ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Heffernan v. City of Paterson , 777 F.3d 147, 151 (3d Cir.2015) (quoting FED. R. CIV. P. 56(a) ). A genuine issue of material fact is one that could affect the outcome of litigation. Mahoney v. McDonnell , 616 Fed.Appx. 500, 504 (3d Cir.2015) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). However, " ‘[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.’ " Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

The initial burden is on the moving party to adduce evidence illustrating a lack of genuine issues. Id. (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party satisfies its burden, the non-moving party must present sufficient evidence of a genuine issue, in rebuttal. Id. (citing Matsushita Elec. Indus. Co. , 475 U.S. at 587, 106 S.Ct. 1348 ). When considering the parties' arguments, the Court is required to view all facts and draw all inferences in the light most favorable to the non-moving party. Id. (citing Armbruster v. Unisys Corp. , 32 F.3d 768, 777 (3d Cir.1994) ). Further, the benefit of the doubt will be given to allegations of the non-moving party when in conflict with the moving party's claims. Bialko v. Quaker Oats Co. , 434 Fed.Appx. 139, 141 n. 4 (3d Cir.2011) (citing Valhal Corp. v. Sullivan Assocs. , 44 F.3d 195, 200 (3d Cir.1995) ).

Nonetheless, a well-supported motion for summary judgment will not be defeated where the non-moving party merely reasserts factual allegations contained in the pleadings. Id. (citing Williams v. Borough of West Chester , 891 F.2d 458, 460 (3d Cir.1989) ). The non-moving party must resort to affidavits, depositions, admissions, and/or interrogatories to demonstrate the existence of a genuine issue. Connection Training Servs. v. City of Philadelphia , 358 Fed.Appx. 315, 318 (3d Cir.2009) (citing Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ).

V. Discussion

A. Defendant's Motion for Summary Judgment

Defendant makes four arguments in support of its motion for summary judgment.

First, Defendant argues that it did not "make any call" to Plaintiff because she manufactured the calls. (ECF No. 44 at 12-14.) Second, Defendant contends that Plaintiff consented to receive the calls. (Id. at 14–17.) Third, Defendant asserts that Plaintiff's claim is barred by the doctrine of assumption of the risk. (Id. at 17–20.) Finally, Defendant contends that Plaintiff lacks Article III standing to assert her claim because she is not a member of the class that the TCPA was designed to protect and did not suffer the type of harm that the TCPA was designed to prevent. (Id. at 20–25.) The Court will separately address each of Defendant's arguments.

1. Defendant's Argument that It Did Not "Make Any Calls"

Defendant argues that summary judgment must be granted in its favor because Plaintiff manufactured the TCPA claim for which she has filed suit. (Id. at 12–14.) Specifically, Defendant states that the TCPA makes it unlawful " ‘to make any call’ " to a cell phone using an automatic telephone dialing system ("ATDS"). (Id. at 12 (quoting 47...