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. 23). Defendant argues that Plaintiff has
failed to produce sufficient evidence to permit a reasonable
juror to find in Plaintiff's favor. Def.'s Mot.
for Summ. J., ECF No. 23, at 1. Consistent with that
contention, Defendant believes it is entitled to judgment as
a matter of law. Id. Plaintiff filed his response to
Defendant's motion, in which he counters Defendant's
contentions. Having reviewed the complete briefing on the
matter, the Court agrees with Defendant with regard to two of
Plaintiff's counts, but disagrees with regard to the
remaining count. Accordingly, and for the reasons provided
below, the Court GRANTS, IN
PART, and DENIES, IN
PART, Defendant's Motion for Summary Judgment
(ECF No. 23).
Christopher O'Dell (“Mr. O'Dell” or
“Plaintiff”) got in trouble with credit card
debt. Ex. 2 to Def.'s Mot. for Summ. J., ECF No.
24-2, at 6-7; Ex. 1 to Def.'s Mot. for Summ.
J., ECF No. 24-1, at 1. Sometime late in the first
decade of the 2000's, Mr. O'Dell opened a credit card
account with USAA Savings Banks (the “USAA Card”).
Ex. 2 to Def.'s Mot. for Summ. J., at 5. Mr.
O'Dell did not use the card for extravagant purchases.
Id. at 16. Instead, he used the USAA Card for
general purchases at the grocery store or drugstore, as well
as to pay bills and cover day-to-day expenses. Id.
at 5. Despite sensible use of the card, and while
simultaneously holding two jobs, Mr. O'Dell fell behind
with payments on the USAA Card. Id. 5-7.
November 2012, faced with mounting debt held by numerous
entities, and with an insufficient income to cover it all,
Mr. O'Dell stopped making payments on the USAA Card.
Id. at 5-7. By this point, he owed roughly $11, 000
on the USAA Card. Id. at 5. Mr. O'Dell, who
worked as a janitor when he was not working as a
schoolteacher, freely admitted that he owed the debt.
Id. at 17. By his own admission, Mr. O'Dell just
got “overextended.” Id. at 5. He,
however, did not expect USAA to merely forgive this accrued
debt. Id. at 6.
with Mr. O'Dell's expectation, USAA did not just call
it even and forgive the debt. Instead, Defendant came calling
to collect on that debt. Defendant began a multi-faceted
approach to retrieving the money USAA was owed. In addition
to sending letters, Defendant initiated a regular course of
calls to Mr. O'Dell's home, cell, and work numbers in
December 2012. Ex. 1 to Def.'s Mot. for
Summ. J., at 1; Ex. 2 to Def.'s Mot. for Summ.
J., at 7-10; see generally Ex. 3 to Def.'s Mot.
for Summ. J., ECF No. 23-3; Ex. 4 to Def.'s Mot.
for Summ. J., ECF No. 23-4.
the same time that Mr. O'Dell stopped making payments and
Defendant started making calls, Mr. O'Dell sought the
assistance of a lawyer. Ex. 2 to Def.'s Mot. for
Summ. J., at 7. Mr. O'Dell felt overwhelmed by the
calls, as well as the pressure to pay the debt, and he needed
help. Id. at 7-8, 10, 14. His attorney provided him
with a strategy for documenting the calls that Mr. O'Dell
received. Id. at 8. Additionally, Mr.
O'Dell's lawyer provided him with a script that he
was to read upon answering one of Defendant's calls.
Id. at 10. The script read as follows: “PLEASE
DON'T CONTACT ME ANYMORE IT MAKES ME NERVOUS. SCOTT
STAPLETON OF HUNTINGTON, WEST VIRGINIA IS MY LAWYER.”
Ex. 4 to Def.'s Mot. for Summ. J., at 1
(capitalization original). According to Mr. O'Dell, he
read this script on January 23, 2013, then hung up.
Id.; Ex. 2 to Def.'s Mot. for Summ. J.,
at 11-12. After reading this script, Mr. O'Dell stopped
answering Defendant's calls. Ex. 2 to Def.'s Mot.
for Summ. J., at 11-12.
call records fail to reflect this attorney notification.
See generally Ex. 3 to Def.'s Mot. for Summ. J.
However, Defendant's records do reflect that Mr.
O'Dell provided notification that he had legal
representation. Only, Defendant's records show that Mr.
O'Dell first mentioned retaining a lawyer
before, not after, January 23, 2013. Compare Ex.
3 to Def.'s Mot. for Summ. J., at 57 (showing the
acknowledgment that Mr. O'Dell had told Defendant's
representative that he was represented by an attorney)
with Ex. 2 to Def.'s Mot. for Summ. J., at 11-12
(explaining that Mr. O'Dell does not recall notifying
Defendant of his representation before January 23, 2013).
to Defendant's call records, on December 31, 2012,
Defendant's call center received an incoming
call. Ex. 3 to Def.'s Mot. for Summ.
J., at 57. During the course of this call, Mr.
O'Dell appears to have notified Defendant that he was
represented by an attorney. Id. But, according to
Defendant's record of the conversation, Mr. O'Dell
could not recall specific information regarding his attorney
at the time. Id.; Ex. 2 to Def.'s Mot. for
Summ. J., at 12. Further, the note in Defendant's
call logs indicates that Defendant's representative told
Mr. O'Dell that he would remain in their system until he
provided more information regarding his attorney. But the
representative instructed him to call back to provide the
information when he had it available. Id.
O'Dell, however, did not recall this conversation.
Ex. 2 to Def.'s Mot. for Summ. J., at 12. During
Mr. O'Dell's deposition, Defendant's counsel
asked him whether he had notified Defendant regarding his
hiring of an attorney prior to January 23, 2013. Id.
Mr. O'Dell responded that he had not. Defendant's
counsel read to Mr. O'Dell the interpretation of
Defendant's notes from that December 31, 2012
call. Id. Even after this prompt, Mr.
O'Dell did not recall this conversation taking place.
Id. Additionally, Mr. O'Dell clarified that this
alleged conversation on December 31, 2012 could not have been
the same one that he noted on January 23, 2013.
of the date on which Mr. O'Dell first notified Defendant
that he had retained an attorney, Defendant continued to call
him dozens and dozens of times. Mr. O'Dell's call log
shows 183 calls from Defendant within a four-month period.
See Id. at 8, 12; See generally Ex. 4 to
Def.'s Mot. for Summ. J. Although Defendant's
representatives did not abuse Mr. O'Dell verbally in the
calls, the incessant calling made Mr. O'Dell very
nervous. Id. at 10, 13-14.
effort to remedy what Mr. O'Dell believed was
“harassment, ” he filed the complaint in this
action. Id. at 4. Originally, Mr. O'Dell's
attorney filed the complaint in the Circuit Court of Mason
County, West Virginia. Notice of Removal, ECF No. 1.
However, Defendant timely removed the action to this Court.
complaint, Mr. O'Dell asserts three counts: (1)
Violations of the West Virginia Consumer Credit and
Protection Act (“WVCCPA”); (2) Intentional
Infliction of Emotional Distress (“IIED”); and
(3) Common Law Invasion of Privacy. Compl., ECF No.
1-1, ¶ 11-22. He also requests relief in the form of
appropriate statutory, compensatory, and punitive damages.
Id. at 7-8. Defendant contends that summary judgment
is appropriate in its favor for each of Mr. O'Dell's
explained below, the Court believes summary judgment is
appropriate in Defendant's favor with regard to Counts II
and III, alleging claims of IIED and Common Law Invasion of
Privacy, respectively. However, because there remain genuine
issues of material fact, the Court must permit certain
aspects of Mr. O'Dell's Count I, stating claims under
the sections 46A-2-128(e) & 46A-2-125(d) of the WVCCPA,
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.
Defendant argues for summary judgment on each of Mr.
O'Dell's claims, the Court will review each claims,
and the parties' respective arguments, in turn.
Count I: WVCCPA Claims
of Mr. O'Dell's Complaint alleges violations under
multiple sections of the WVCCPA. The WVCCPA is a
comprehensive consumer protection code that provides private
causes of action for aggrieved debtors against debt
collectors. See Bourne v. Mapother & Mapother,
P.S.C., 998 F.Supp.2d 495, 500-01 (S.D. W.Va. 2014)
(citation omitted). As a general matter, the Supreme Court of
Appeals of West Virginia (“West Virginia Supreme
Court”) has instructed that courts applying the WVCCPA
should construe the statute broadly and liberally.
See id. (citing State ex rel. McGraw v.
Scott Runyan Pontiac-Buick, Inc., 461 S.E.2d 516, 523 (
W.Va. 1995)). To that end, when considering the WVCCPA,
courts should give effect to the purposes intended by the
legislature. Id. at 501.
O'Dell puts forward three claims that rely upon sections
of the WVCCPA: (1) one under W.Va. Code § 46A-2-128(e);
(2) one under W.Va. Code § 46A-2-125; and (3) one under
W.Va. Code § 46A-2-125(d). See Compl. at
⁋ 12. In its motion, Defendant contests that summary
judgment on each of these claims is appropriate.
respect to Mr. O'Dell's claims under section
46A-2-125 and section 46A-2-125, Defendant argues that
Plaintiff cannot maintain a claim under the umbrella
provision of 46A-2-125 that is separate from his 46A-2-125(d)
claim. The Court need not reach a decision with regard to
that question. In his response, Plaintiff failed to respond
to Defendant's contention that the claim under the
umbrella section, 46A-2-125, should be dismissed. As such,
Plaintiff has produced no evidence to support a potential
claim under the umbrella provision. Therefore, the Court
agrees with Defendant. However, because the Court will permit
Mr. O'Dell's claim to continue under the subsection,
46A-2-125(d), the Court will merely construe Mr.
O'Dell's citation to the umbrella section 46A-2-125
as superfluous. The Court will combine the second and third
claims under WVCCPA, and appropriately analyze the claim
under the relevant framework applicable to subsection
Claim under W.Va. Code § 46A-2-128(e)
to Mr. O'Dell's first claim under the WVCCPA, Mr.
O'Dell claims that Defendant violated section
46A-2-128(e). That section prohibits “[a]ny
communication with a consumer whenever it appears that the
consumer is represented by an attorney and the attorney's
name and address are known, or could be easily
ascertained.” W.Va. Code § 46A-2-128(e)
(2013). A debt collector does not violate the
provision if the communication occurs after “the
attorney fails to answer correspondence, return phone calls
or discuss the obligation in question.” Id.
contends that Mr. O'Dell's 46A-1-128(e) claim must
fail because he has not presented sufficient evidence that
“his attorney's name was known to [Defendant] or
could [have been] easily ascertained.” Def. Mem. in
Supp. of Mot. for Summ. J., at 6. Defendant conceded
that Plaintiff testified at his deposition that he read the
script with the name of his attorney, Scott Stapleton, to
Defendant's representative. Id. However,
Defendant argues “there is no evidence that [Defendant]
had knowledge of Mr. Stapleton's ...