United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE
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) 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.
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.
letter dated in early to mid-December, 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.
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. See Id. at 11; Ex. B to
Pl.'s Resp. to Def.'s Mot. for Summ. J., at 1-2.
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.
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
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
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)
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.
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.
Count I: TCPA Claim
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. §
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
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.
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.
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.
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.
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.
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
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.
two concrete facts, the postmarked date and the correctly
addressed envelope, give rise to a rebuttable presumption of
timely delivery. 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 ...