United States District Court, E.D. California
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 ...