United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE.
before the Court is Plaintiff John Scott Casto II's
Motion to Compel Depositions and for a New Scheduling Order
(ECF No. 23) and Defendant Branch Banking and Trust
Company's Motion for Summary Judgment. ECF No. 26. For
the following reasons, the Court GRANTS, in part,
Plaintiff's motion and HOLDS IN ABEYANCE Defendant's
action involves the debt collection efforts made by Defendant
against Plaintiff. It is undisputed that Plaintiff mailed a
letter to Defendant withdrawing his consent to be contacted
by phone and advising Defendant that he hired an attorney.
The letter is postmarked December 21, 2015. Defendant states
that the letter was received by its registered agent on
January 6, 2016, and it was recorded in its business records
on January 7, 2016. The parties agree that no phone calls
were made after January 7, 2016. As no calls were made
thereafter, Defendant moves for summary judgment on
Plaintiff's claims it violated the Telephone Consumer
Protection Act (Count I), the West Virginia Consumer Credit
and Protection Act (Count II), West Virginia Computer Crimes
and Abuse Act (Count III), West Virginia Telephone Harassment
Statute (Count IV), common law negligence (Count V),
Intentional Infliction of Emotional Distress (Count VI), and
Common Law Invasion of Privacy (Count VII).
responds that the only issue to resolve is when the
registered agent received the notice. Plaintiff insists that it
should not have taken from December 21 to January 6 to travel
thirteen miles to reach Defendant's agent.
Plaintiff's counsel states he is aware of five cases in
which Defendant's registered agent states it never
received letters of attorney representation, and one case in
which the agent said a letter was received three weeks after
it was sent. Plaintiff speculates that his letter likely was
received by December 22, and alleges that Defendant called
him at least 27 times between December 22 and January 7.
Thus, Plaintiff insists that the issue of when the letter was
received must be reserved for a jury.
obtain summary judgment, the moving party must 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(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., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
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.
case, it is clear that Plaintiff's mere speculation about
when his letter may have been received is not sufficient to
defeat summary judgment. However, prior to Defendant filing
its Motion for Summary Judgment, Plaintiff filed his Motion
to Compel Depositions and for a New Scheduling Order. In his
motion, Plaintiff states he has been attempting to schedule
depositions of Defendant's corporate representatives for
months to no avail because defense counsel has failed to
provide dates for those depositions. In response, Defendant
states it does not oppose a new Scheduling Order to permit a
deposition, but it does object to the scope of the
depositions sought by Plaintiff.
to Defendant, Plaintiff requests a Rule 30(b)(6) deposition
covering the following topics:
1. Defendant's policies and procedures on collections in
West Virginia during the four years prior to the filing of
this civil action;
2. Training of collections staff for debt collection in West
Virginia during the four years prior to the filing of this
3. Debt collection techniques and systems, including computer
systems used for debt collection in West Virginia used the
four years prior to the filing of this civil action;
4. Compliance with West Virginia and national debt collection
laws as they were used in West Virginia debt collection in
the four years prior to the filing of this civil action;
5. Knowledge of past litigation in West Virginia over the
four years prior to the filing of this civil action involving
debt collection abuse allegations; and
6. The facts and substance of the case as they relate to the
Defendant and as they are ...