United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. Chambers, Chief Judge
before the Court is Defendant's Motion for Summary
Judgment (ECF No. 31). The issues presented have been fully
briefed, and the motion is now ripe for review. For the
following reasons, the Court GRANTS in part and DENIES in
part Defendant's Motion.
brought suit against Defendant for alleged violations of the
Telephone Consumer Protection Act (TCPA), the West Virginia
Consumer Credit and Protection Act (WVCCPA), common law
negligence, and common law invasion of privacy. See
Pl.'s Second Am. Compl., ECF No. 27. Plaintiff
alleges that he became in arrears to a debt owed to
Defendant. Id. at ¶ 8. Subsequently, Defendant
engaged Plaintiff in telephone calls and written
communications to collect on the debt. Id.
alleges that on March 1, 2016, he mailed a letter to CT
Corporation (CT), Defendant's registered agent,
specifying that he had retained an attorney to represent him
on the alleged debt. Id. at ¶ 9. The letter
further indicated that Plaintiff withdrew his consent to be
contacted directly and provided Defendant with the contact
information of his attorney. Id.; see
also Letter by Nicholas Huffman, ECF No. 31-1, at 4.
Plaintiff alleges that Defendant continued to call Plaintiff
on his cell phone multiple times per day using an automatic
telephone dialing system. Pl.'s Second Am.
Compl., ECF No. 27, at ¶ 10. Plaintiff asserts that
the calls totaled at least forty-four calls after Defendant
had received notice of attorney representation. Id.
at ¶ 16. Plaintiff alleges that Defendant intended to
annoy, abuse, or harass Plaintiff by engaging in these calls
after receiving notice. Id. at ¶ 17.
filed the instant case on September 7, 2016, and the Second
Amended Complaint contains four separate counts. See
generally Id. Count I charges Defendant with violating
the TCPA by calling Plaintiff with artificial or prerecorded
voices without Plaintiff's express consent in violation
of 47 U.S.C. § 227(b)(1)(A). Id. at
¶¶ 24-29. Count II alleges violations of the
WVCCPA, stating that Defendant engaged in unreasonable and
abusive conduct by continuing to call Plaintiff after he
revoked consent. Id. at ¶¶ 30-32.
Specifically, the Complaint cites West Virginia Code sections
46A-2-125(d) for calling repeatedly or at unusual times with
the intent to annoy, abuse, or oppress; 46A-2-128(e) for
communicating with Plaintiff after having written notice of
attorney representation; and 46A-2-127 for failing to
disclose the name of the business entity demanding money.
Id. at ¶ 31. Count III alleges common law
negligence, citing Defendant's failure to train and
supervise its employees to prevent violations of the above
listed statutes. Id. at ¶¶ 33-36. Lastly,
Count IV asserts a claim for common law invasion of privacy,
citing the expectation of privacy to be free from harassing
phone calls. Id. at ¶¶ 37-42. Plaintiff
seeks statutory damages, treble damages, general damages,
attorneys' fees and costs, and injunctive relief.
Defendant moved for summary judgment on all four claims.
obtain summary judgment, the moving party must show that no
genuine issue as to any material fact remains and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In considering a motion for summary
judgment, the Court will not “weigh the evidence and
determine the truth of the matter.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead,
the Court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986). Any inference,
however, “must fall within the range of reasonable
probability and not be so tenuous as to amount to speculation
or conjecture.” JKC Holding Co. v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001)
the Court will view all underlying facts and inferences in
the light most favorable to the nonmoving party, the
nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict
in his [or her] favor.” Anderson, 477 U.S. at
256. Summary judgment is appropriate when the nonmoving party
has the burden of proof on an essential element of his or her
case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
nonmoving party must satisfy this burden of proof by offering
more than a mere “scintilla of evidence” in
support of his or her position. Anderson, 477 U.S.
at 252. “Mere speculation by the non-movant cannot
create a genuine issue of material fact” to avoid
summary judgment. JKC Holding, 264 F.3d at 465.
Motion argues against each of Plaintiff's claims, stating
that Plaintiff cannot point to a genuine issue of material
fact to preclude summary judgment. The Court will address
each of Defendant's arguments in turn.
Count I: TCPA Claim
first count challenges Defendant's tactics to collect the
alleged debt as a violation of the TCPA. The TCPA states, in
relevant part, that it is unlawful “to make any call
(other than a call … made with the prior express
consent of the called party) using any automatic telephone
dialing system or an artificial or prerecorded voice”
to the called party's cell phone number. 47 U.S.C. §
227(b)(1)(A)(iii) (2015). It is further unlawful “to
initiate any telephone call to any residential telephone line
using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party, unless
the call … is exempted by rule or order by the
Commission.” 47 U.S.C. § 227(b)(1)(B) (2015).
of these sections, the phone calls are prohibited unless the
consumer presents prior express consent. Courts have
consistently held that a consumer gives prior express consent
when the consumer provides the cell phone number to the
creditor in an application or other communication. See,
e.g., Levy v. Receivables Performance Mgmt.,
LLC, 972 F.Supp.2d 409, 419 (E.D.N.Y. 2013); Adamcik
v. Credit Control Servs., Inc., 832 F.Supp.2d 744, 748
(W.D. Tex. 2011); see also In re Rules & Regulations
Implementing the TCPA of 1991, 23 FCC Rcd. 559, 559
(Jan. 4, 2008) (“[W]e clarify that autodialed and
prerecorded message calls to wireless numbers that are
provided by the called party to a creditor in connection with
an existing debt are permissible as calls made with the
‘prior express consent' of the called
party.”). The Federal Communications Commission (FCC)
has further clarified that debt collection calls fall under
the exemption language of § 227(b)(1)(B). See In re
Rules & Regulations Implementing the TCPA of 1991, 7
FCC Rcd. 8752, 8773 (Oct. 16, 1992) (“Whether the call
is placed by or on behalf of the creditor, prerecorded debt
collection calls would be exempt from the prohibitions on
such calls to residences as: (1) calls from a party with whom
the consumer has an established business relationship, and
(2) commercial calls which do not adversely affect privacy
rights and which do not transmit an unsolicited
advertisement.”). Therefore, Plaintiff's claim in
Count I must be based off the calls made to his cell phone
number as expressed in § 227(b)(1)(A).
this section does not provide an adequate mechanism to revoke
the previously provided express consent, courts have
recognized that consumers can revoke consent to be called on
their cell phones. See, e.g., Gager v. Dell Fin.
Servs., LLC, 727 F.3d 265, 270 (3d Cir. 2013) (citing
reasons to find consent revocable in TCPA, including common
law concept that consent can be revoked and how silence in
statute favors consumer). The parties do not dispute this
notion, and the ...