Reddin v. Rash Curtis & Associates

          MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT

          WILLIAM B.SHUBB, UNITED STATES DISTRIC:T JUDGE

         Plaintiff brought this action under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p, and California’s Rosenthal Fair Debt Collection Practices Act (“RFDCPA”), Cal. Civ. Code §§ 1788-1788.32, based on two phone calls she received from defendant Rash Curtis & Associates. Pursuant to Federal Rule of Civil Procedure 56, defendant now moves for summary judgment on all of plaintiff’s claims.

         I. Factual and Procedural Background

         The limited facts giving rise to plaintiff’s FDCPA and RFDCPA claims are essentially undisputed. Defendant is a debt collection agency and was assigned to collect a number of debts owed by plaintiff’s son. (Keith Decl. ¶ 3 (Docket No. 10-4).) At approximately 10:00 a.m. on February 25, 2015, defendant placed an automated call to plaintiff’s home number regarding that debt. (Id.) After the call, plaintiff called defendant and informed it that she did not want it to call her home number again. (Id. ¶ 5.) She also obtained defendant’s email address and sent an email to defendant instructing it not to call her home again. (Id.; Reddin Decl. Ex. A (Docket No. 12-1).) Defendant received the email request and informed plaintiff that it would process her request. (Reddin Decl. Ex. A.) Although defendant removed plaintiff’s home number from its collection account after receiving her email, the number had already been loaded into a dialer campaign through defendant’s vendor, Global Connect, and Global Connect did not update its system to remove plaintiff’s number until that night.^[1] (Keith Decl. ¶ 6.) At 6:00 p.m. that same day, defendant autodialed plaintiff’s home number a second time before it had been removed from the dialer campaign. (Id. ¶¶ 3, 6.)

         Plaintiff initiated this action against defendant in state court, and defendant removed it to this court on the basis of federal question jurisdiction. In her Complaint, plaintiff alleges claims for violations of the FDCPA and RFDCPA. She specifically alleges that defendant violated subsections 1692c(a)(1), 1692d, 1692d(5), 1692e(2)(A), 1692e(10), 1692f, and 1692f(1) of the FDCPA and subsections 1788.11(d) and 1788.11(e) of the RFDCPA. (Compl. ¶ 11.) Defendant now moves for summary judgment on all of plaintiff’s claims pursuant to Rule 56.

         II. Analysis

         Summary judgment is proper “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). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.

         Once the moving party meets its initial burden, the burden shifts to the non-moving party to “designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.

         In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . .” Id.

         1. FDCPA Claim

         In 1977, Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The Act establishes a nonexclusive list of unlawful debt collection practices and provides for public and private remedies. Id. §§ 1692-1692p.

         a. Subsection 1692c(a)(1)

         Subsection 1692c(a)(1) generally prohibits a debt collector from communicating with a “consumer in connection with the collection of any debt . . . at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer.” Id. § 1692c(a)(1). FDCPA defines “consumer” as “any natural person obligated or allegedly obligated to pay any debt.” Id. § 1692a(3). For purposes of § 1692c, “the term ‘consumer’ includes the consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator.” Id. § 1692c(d).

         Here, it is undisputed that plaintiff was not obligated to pay any debt and that defendant telephoned her home only in an effort to collect debts her son owed, and plaintiff conceded at oral argument that her son was not a minor. Although plaintiff cites several cases recognizing FDCPA claims by non-debtors, those claims were for violations of other subsections of the FDCPA that are not limited to “consumers.” (See Pl.’s Opp’n at 5 (Docket No. 13) (citing cases addressing § 1692d and § 1692e, which are not limited to “consumers”).) Plaintiff relies heavily on the Sixth Circuit’s recognition in Montgomery v. Huntington Bank that a non-debtor may bring claims under § 1692d and § 1692e. 346 F.3d 693, 696 (6th Cir. 2003). In that case, however, the Sixth Circuit expressly distinguished those subsections from § 1692c: “[R]elief is ...