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Casto v. Branch Banking and Trust Co.

United States District Court, S.D. West Virginia, Huntington Division

January 2, 2018




         Pending before the Court is Defendant's Motion for Summary Judgment (ECF No. 26). Defendant requests summary judgment in its favor on each of Plaintiff's seven counts. By Memorandum Opinion and Order issued July 27, 2017, this Court held that motion in abeyance so that Plaintiff could conduct additional depositions. ECF No. 35. In that Memorandum Opinion and Order, the Court also directed the parties to submit supplemental briefing after the completion of the additional depositions. The parties have since conducted those additional depositions. Having received Plaintiff's Surresponse (ECF No. 41)[1] and Defendant's Surreply (ECF No. 43), the Court believes that the Motion for Summary Judgment is ready for adjudication. As explained below, the Court GRANTS, IN PART, and DENIES, IN PART, Defendant's Motion for Summary Judgment.

         I. BACKGROUND

         This case arises out of Defendant's debt collection efforts against Plaintiff. Sometime before December of 2015, Plaintiff became in arrears upon debts allegedly owed to Defendant. Def.'s Mem. in Supp. of Mot. for Summ. J., ECF No. 27, at 2. Defendant, through various forms of contact, sought to collect on the outstanding debt. Ex. A to Def.'s Mot. for Summ. J., ECF No. 26-1, at 1-15. In the face of these collections, Plaintiff retained counsel. Id. at 19.[2]

         By a letter dated in early to mid-December[3], Plaintiff notified Defendant that he had retained counsel (the “Notification Letter”). Id. This letter additionally instructed Defendant to cease calling Plaintiff, and instead to call his lawyer. Id. Although the Notification Letter reflects a date in early to mid-December, the envelope is postmarked December 21, 2015. Id. at 18. The envelope, sent via first-class mail, also contains a clear and correct address for Defendant's registered service agent, CT Corporation System (“CT”). Id. at 17, 18; Ex. 1 to Pl.'s Surresponse, ECF No. 41-1, at 7.

         Despite a postmark on December 21, CT did not process the Notification Letter through its system until January 6, 2016, 16 days after that postmark date. Defendant processed this letter in its system the next day, January 7, 2016. Id. at 5. On the day it processed Plaintiff's letter, which instructed that calls cease, Defendant made one last call to Plaintiff's cellphone. Id. at 12; Ex. B to Pl.'s Resp. to Def.'s Mot. for Summ. J., ECF No. 31-2, at 2. Defendant made this call roughly five hours after noting on their records that Plaintiff had requested that all calls be directed to his attorney. Id. at 5, 12. However, from the period of December 21, 2015 through January 7, 2016, Plaintiff received at least 33 calls from Defendant.[4] See Id. at 11; Ex. B to Pl.'s Resp. to Def.'s Mot. for Summ. J., at 1-2.

         This series of events lead Plaintiff to file the current action before this Court. See generally Compl. In his complaint, Plaintiff asserted seven counts: (1) Violation of the Telephone Consumer Protection Act (“TCPA”); (2) Violations of the West Virginia Consumer Credit and Protection Act (“WVCCPA”); (3) Violation of the West Virginia Computer Crimes and Abuse Act (“WVCCAA”); (4) Violation of the Telephone Harassment Statute (“WVTHS”); (5) Common Law Negligence; (6) Intentional Infliction of Emotional Distress (“IIED”); and (7) Common Law Invasion of Privacy. Defendant contends that summary judgment in its favor is appropriate for each of these counts.

         Although the parties agree on most of the facts in this case, factual disputes remain. The most important and relevant of these disputes concern Plaintiff's letter. Specifically, the parties disagree as to when CT received the Notification Letter. Plaintiff asserts that CT received the letter prior to January 6, 2016, the date on which it processed the letter. Pl.'s Resp. to Def.'s Mot. for Summ. J., ECF No. 31, at 3. At the very least, Plaintiff contends that the postmark date of December 21, 2015, when compared to CT's processing date, January 6, 2016, presents a genuine dispute of material fact suitable for a jury. Because the date of receipt is a material fact with regard to at least three of his claims, Plaintiff maintains that summary judgment would be inappropriate Defendant, on the other hand, contends that CT received the letter on the same date it processed the letter. Def.'s Mem. in Supp. of Mot. for Summ. J., at 4. Defendant argues that Plaintiff's evidentiary showing is insufficient to establish that CT received the Notification Letter prior to January 6, 2016. Def.'s Reply, ECF No. 32, at 1-3. Therefore, Defendant argues that no real disputes of material fact remain. Id. Defendant further argues that because the parties appear to agree that Defendant placed its last call to Plaintiff on January 7, 2016, Defendant should prevail on summary judgment as a matter of law.

         Based upon the evidence and pleadings submitted, the Court believes that issues of disputed material fact remain for Plaintiff's TCPA claim, one of his WVCCPA claims, and his WVCCAA claim.


         To 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). “Material facts” are those that might affect the outcome of a case, and a “genuine issue” exists when a reasonable jury could find for the nonmoving party upon the evidence presented. The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 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). So too, it is not the province of the Court to make determinations of credibility. Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991). 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) (citation omitted).

         Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, in order to survive summary judgment, the nonmoving party 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, after adequate time for discovery, does not make a showing sufficient to establish that element. See 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 Co., 264 F.3d at 465.


         Defendant argues for summary judgment on each of Plaintiff's claims based upon Plaintiff's inability to demonstrate a genuine issue of material fact. Because Defendant has moved for summary judgment on each of Plaintiff's seven counts, the Court will address each of the counts and the parties' respective arguments, in turn.

         a. Count I: TCPA Claim

         Plaintiff's first claim arises under the TCPA. That statute makes it unlawful to place “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to a party's cell phone number. 47 U.S.C. § 227(b)(1)(A)(iii) (2015). The statute additionally provides a private cause of action for those who are the target of conduct violative of this prohibition. Id. § 227(b)(3).

         Although somewhat ambiguous from the face of his complaint and subsequent pleadings, Plaintiff does not appear to dispute the fact that Defendant had consent to call him at some point in time. Compl. ¶ 11; Pl.'s Resp. to Def.'s Mot. for Summ. J., at 3-4 (discussing that the letter served a notice of a cease and desist request). Instead, Plaintiff appears to contend that the letter revoked his consent for Defendant to contact him. Id. Based upon this revocation, Plaintiff claims Defendant violated the TCPA by calling him after Defendant received the Notification Letter.

         The parties do not contest that Plaintiff had the ability to revoke his consent to be contacted under the TCPA. See generally Cartrette v. Time Warner Cable, Inc., 157 F.Supp.3d 448, 453-55 (E.D. N.C. 2016) (finding that the plaintiff could revoke consent to contact under the TCPA even where a contractual relationship appeared to prohibit such revocation). Indeed, this Court just recently provided a lengthy analysis supporting a plaintiff's ability to revoke consent. In Huffman v. Branch Banking & Trust Co., this Court examined consent revocation under the TCPA. No. 3:16-8637, 2017 WL 2177351 (S.D. W.Va. May 17, 2017). The plaintiff in Huffman had revoked consent with the same type of letter as Plaintiff sent in this case. See Id. at *1-3. This Court examined both regulatory clarifications and case-law development in other circuits regarding the ability of an individual to revoke consent to call under the TCPA. See Id. at *2-3. Ultimately, the Court found that an individual could revoke consent under the TCPA “through any reasonable means.” Id. at *3 (citing In re Rules & Regulations Implementing the TCPA of 1991, 30 FCC Rcd. 7961, 7965 (July 10, 2015)). As in this case, the parties in Huffman did not contest that the plaintiff had the ability to revoke consent. Id.

         But, in Huffman, the parties did contest whether the means taken by the plaintiff in that case were effective. CT was the service agent for the defendant in Huffman. Id. The defendant had argued that that receipt of a consent revocation letter by CT could “not bind the knowledge of revocation to” the defendant. Id. After citing West Virginia Code, the Court concluded that “sending notice to a corporation's registered agent clearly meets the reasonable means standard” for revocation of consent. Id. Additionally, the Court found that a notice sent to a registered agent that provided adequate cease and desist notice under the WVCCPA would also effectively revoke consent under the TCPA. Id. at *3-4. The Court reiterates the legal analysis conducted in Huffman, and incorporates it here. See Id. at *2-4.

         Based upon Huffman, Plaintiff's letter in this case effectively revoked consent for Defendant to contact him. The parties seemingly concede this finding, as they have disputed neither Huffman's analysis, nor its legal effect. See generally Def.'s Surreply, ECF No. 43; Pl.'s Surresponse, ECF No. 41. Instead, the parties' contentions, in this case, revolve around the factual circumstances surrounding the revocation of consent. As noted above, the parties disagree about when CT actually received the Notification Letter.

         Indeed, Defendant vies for summary judgment upon the receipt date of the notice revoking consent. Def.'s Mem. in Supp. of Mot. for Summ. J., at 5-6. Defendant claims that Plaintiff only revoked consent upon the Defendant's receipt of the Notification Letter. Id. Defendant believes that undisputable facts demonstrate that CT received the Notification Letter on January 6, 2016 and Defendant actually received it on January 7, 2016. Id. at 2-3. Defendant's last call took place on the same day it actually received the Notification Letter. Id. at 6. Under its view of the circumstances, Defendant did not place a call after Plaintiff had effectively revoked consent. Therefore, Defendant contends that it is entitled to summary judgment on this claim because as a matter of law it did not violate the TCPA.

         Unfortunately, Defendant draws a false equivalency between receiving and processing. As such, Defendant fails to note the core issue of the factual dispute regarding the revocation. Without a doubt, CT processed the Notification Letter on January 6, and Defendant actually received that letter the next day. Even Plaintiff concedes as much. Pl.'s Resp. to Def.'s Mot. for Summ. J., at 3. But, the pertinent question-and consequential fact-is when did CT receive that letter. See Huffman, 2017 WL 2177351, at *4 (finding that “CT's alleged receipt of the letter serves as reasonable means to revoke consent” under the TCPA). Although the evidence suggests that CT generally processes letters on the same day as it receives them, this is by no means a certainty, especially in light of the factual circumstances and procedural posture of this case. See Ex. 1 to Pl.'s Surresponse, ECF No. 41-1, at 6 (arguing that as a matter of practice CT's subcontractor generally processes mail within twenty-four hours of receiving it). In fact, an agent of CT testified that CT does not stamp a receipt date upon the arrival of mail. Id. Therefore, the date of receipt is not undisputed as Defendant claims.

         At the furthest point of reduction, the Court must decide whether it indisputably took 16 days for the USPS to deliver a letter thirteen miles. Pl.'s Resp. to Def.'s Mot. for Summ. J., at 3. In doing so, the Court must compare regular courses of business practice and decide which one was more “regular” in this particular instant. CT regularly processed letters on the day of receipt, suggesting that the Notification Letter reached CT on January 6, 2016. However, the USPS regularly delivers letters sent by First-Class Mail in one to three business days, suggesting that the Notification Letter reached CT on December 24, 2015, at the latest. Ex. 7 to Pl.'s Surresponse, ECF No. 41-6, at 1. This is a discrepancy of over ten days in the expected receipt date. To decide the issue, the Court would have attribute this discrepancy to the actions of either CT or USPS. If the delay was caused by an unusual error in the delivery of the mail by the USPS, then the Court would likely find January 6, the date of process, to constitute the date of the letter's delivery, and thus the date of consent revocation. However, if the USPS had delivered the letter in the usual course of delivery, and due CT's mistake, CT did not process the letter until January 6, then the Court would likely find that Defendant was constructively notified of Plaintiff's consent revocation prior to January 6. At the summary judgment stage, these types of questions constitute genuine issues of material fact. This determination befits the consideration of a jury, not the Court.

         Despite Defendant's refrain, Plaintiff has presented sufficient evidence to survive summary judgment. The most important concrete evidence is the postmarked envelope of the Notification Letter. As demonstrated from the postmark, the USPS received the Notification Letter on December 21, 2015. Ex. A to Pl.'s Resp. to Def.'s Mot. for Summ. J., ECF No. 31-1, at 3. Additionally, the envelope reflected the correct address for the intended arrival point, CT's office in Charleston.

         These two concrete facts, the postmarked date and the correctly addressed envelope, give rise to a rebuttable presumption of timely delivery.[5] Under the traditional common law mailbox rule, a correctly addressed letter placed into the mailing system is presumed to arrive at its delivery point in the usual time. See, e.g., Phila Marine Trade Ass'n, 523 F.3d at 147. Because Plaintiff has demonstrated (1) proper addressing and (2) placement ...

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