United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE
pending before the Court is Defendant DISH Network LLC's
(“DISH”) Motion for Summary Judgment. Mot.
for Summ. J., ECF No. 35. Plaintiffs Brenda Davis
(“Mrs. Davis”) and Clarence Davis (“Mr.
Davis”) timely filed a Response in Opposition, and
Defendant subsequently filed a Reply. Resp. in
Opp'n, ECF No. 36; Reply, ECF No. 37. The
Court granted leave for Plaintiffs to file a single-issue
Sur-Reply and for Defendant to file a similarly limited
Response. Pl.'s Sur-Reply, ECF No. 40; Resp.
to Pl.'s Sur-Reply, ECF No. 46. The issues have been
ably briefed and are ripe for review. For the reasons
detailed herein, the Court GRANTS
case originated with Plaintiffs' decision to enter into a
two-year television service contract with Defendant on April
12, 2016. See Def.'s Ex. B, ECF No. 35-2, at 1.
Plaintiffs established their account as part of a bundled
package with Frontier Communications Corporation
(“Frontier”), which also provided Plaintiffs'
telephone service. See Compl., ECF No. 1, at ¶
9. The Digital Home Advantage Plan Agreement (“Plan
Agreement”) governing Plaintiffs' television
service provided that an early termination fee of $20 per
outstanding month would be assessed against their account if
the plan were cancelled before the end of the two-year
contract. See Def.'s Ex. B, at 1. As a routine
part of beginning Plaintiffs' television service,
Defendant called the Davises a total seven times between
April 11, 2016 and April 27, 2016. Def.'s Ex. A,
ECF No. 35-1, at ¶ 6. Four of these calls were reminders
of upcoming service appointments, and three were prompts to
complete a technician satisfaction survey. Def.'s Ex.
G, ECF No. 35-7. Defendant avers that it “did not
call Plaintiffs after April 27, 2016.” Mot. for
Summ. J., at 5. While Defendant addresses these calls at
length in its motion, Plaintiffs concede they have
“made no claims against the Defendant for phone calls
placed in 2016.” Resp. in Opp'n, at 18.
the course of the next several months, Plaintiffs
“became increasingly dissatisfied with their
[television] service and contacted [Defendant] about
cancelling their service.” Id. at 4. When
Plaintiffs were informed that cancelling service would result
in a substantial early termination fee-calculated using the
$20 per month rate contained in their Plan Agreement-they
decided instead to enroll in “DISH Pause.”
Id.; Def.'s Ex. A, at ¶ 9. As its
name suggests, DISH Pause permits a television customer to
suspend programming while maintaining an active account with
Defendant. Def.'s Ex. A, at ¶ 8. To enroll
in DISH Pause, customers are required to pay a monthly fee of
$5; in exchange, customers continue to possess their
equipment and can reactivate their service at a future date.
Id. Importantly, months spent enrolled in DISH Pause
do not count against a customer's term commitment;
instead, the term is extended “by the number of days
that the service is paused.” Mot. for Summ.
J., at 5.
initiated DISH Pause on June 22, 2016, and extended their
enrollment in the program on February 15, 2017, and December
19, 2017. Def.'s Ex. A, at ¶ 9. Before
extending DISH Pause for the second time, a customer service
representative cautioned that “five dollars doesn't
count those months towards the contract.”
Def.'s Ex. H, ECF No. 35-8, at 13:20-22. While
Mrs. Davis expressed some confusion about how DISH Pause
related to her term commitment, she nevertheless requested to
extend her enrollment in the program. See Id. All
told, Plaintiffs were enrolled in DISH Pause for
approximately seventeen months.
April 17, 2018-two years and five days after beginning
service with Defendant- Plaintiffs unbundled and cancelled
their satellite television account. Def.'s Ex.
F, ECF No. 35-6, at ¶ 8. At this point, they also
returned their equipment and paid what they believed was
their early termination fee. Def.'s Ex. A, at
¶ 11; Compl., at ¶ 14. In reality, their
payment of $279.99 was the final bundled monthly bill from
Frontier and was comprised of $51.98 in internet charges,
$14.30 in satellite television charges, $227.21 in charges
from a previous bill, and $4.50 in convenience fees.
Def.'s Ex. F, ¶ 7.
Plaintiffs contend they misunderstood the mechanics of DISH
Pause and believed the $279.99 payment represented their
early termination fee, the factual record up to this point is
relatively undisputed. Nevertheless, the parties' stories
begin to diverge in late April 2019. Plaintiffs' early
termination bill arrived on April 21, 2019, correctly
calculated at $360.40 pursuant to the Plan Agreement's
$20 per month fee provision and applicable taxes and
fees. Def.'s Ex. A, at ¶ 12;
Def.'s Ex. I, ECF No. 35-9. On May 21, 2019,
second copy of the early termination bill arrived from DISH
seeking the same amount. Def.'s Ex. I. On June
6, 2018, an independent third-party debt collector and
attorney-Richard Maury Cobb (“Cobb”)-sent
Plaintiffs a collection letter mistakenly seeking payment of
$720.80 towards their DISH account. Compl., at
¶¶ 21-22; Def.'s Ex. K, ECF No. 35-11.
While Plaintiffs argue in their response that Cobb was acting
as Defendant's agent in seeking to collect an
ever-ballooning debt with no legitimate foundation,
Defendants claim the amount contained in the letter was
Cobb's sole error and that “[a]n independent
third-party vendor whom DISH contracted to collect delinquent
accounts independently hired Maury Cobb.” Resp. in
Opp'n, at 8; Def.'s Ex. O, ECF No.
37-3, at ¶ 4.
this same time, Plaintiffs allege they “received
numerous phone calls from [Defendant], to their cellular
phones, after revoking their consent to Defendant's calls
numerous times, during phone calls from Defendant.”
Compl., at ¶ 23. Plaintiffs claim these calls
were made using automatic telephone dialing systems,
that they came from a variety of numbers. Id. at
¶ 24; Resp. in Opp'n, at 18; Pl.'s
Ex. 4, ECF No. 36-4, at 18. Plaintiffs single out the
number (877) 839-0927, which they contend Defendant used to
call their cell phones during April and May
2018. Compl., at ¶¶ 26-30;
Pl.'s Ex. 4, ECF No. 36-4, at 18. Defendant
strongly disagrees with these allegations, disclaiming any
ownership of the (877) 839-0927 telephone number and stating
unequivocally that “DISH made its last telephone call
to the [Plaintiffs'] number on April 27,
2016.” Def.'s Ex. A, at ¶ 7.
5, 2018, Plaintiffs' counsel sent Right to Cure Notices
to Defendant and Cobb. Compl., at ¶ 34.
Defendant responded on July 20, 2018, informing Plaintiffs
that it had been seeking to collect an early termination fee
but that it would cease collection of the debt in the future.
Id. at ¶ 36. In July 2018, Defendant refunded
$6.67 in previously-billed DISH Pause payments. Reply,
at 10. “This response did not address [their] concerns,
” so Plaintiffs initiated the instant action on
November 8, 2018. See Compl., at 5. Though both DISH
and Cobb were originally named as defendants, Plaintiffs
settled with Cobb on December 18, 2018 and released their
claims against him in connection with the debt collection
letter. Def.'s Ex. E, at 37. On
August 5, 2019, the Court granted Defendant's Motion for
Partial Summary Judgment with respect to Count V of
Plaintiffs' complaint, reasoning that the Telephone
Harassment Act is a criminal statue without a private cause
of action. See Order, ECF No. 34. Defendant filed
the instant Motion for Summary Judgment on September 3, 2019,
and asks this Court to dismiss all remaining counts.
will “grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Facts are ‘material'
when they might affect the outcome of the case, and a
‘genuine issue' exists when the evidence would
allow a reasonable jury to return a verdict for the nonmoving
party.” The News & Observer Publ'g Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th
Cir. 2010). “The moving party is ‘entitled to
judgment as a matter of law' when the nonmoving party
fails to make an adequate showing on an essential element for
which it has the burden of proof at trial.”
Id. (citing Cleveland v. Policy Mgmt. Sys.
Corp., 526 U.S. 795, 804 (1999)).
considering a motion for summary judgment, the Court will not
act as a jury. It will not “weigh the evidence and
determine the truth of the matter, ” nor will it make
determinations of credibility. Anderson v. Liberty Lobby,
Inc., 447 U.S. 242, 249 (1986); Gray v.
Spillman, 925 F.2d 90, 95 (4th Cir. 1991). Instead, at
the summary judgment stage “the nonmoving party's
evidence is to be believed, and all justifiable inferences
are to be drawn in that party's favor.” Hunt v.
Cromartie, 526 U.S. 541, 552 (1999) (internal quotations
omitted). Nevertheless, such inferences “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). Moreover, the nonmoving party
“may not rely merely on allegations or denials in its
own pleading” but must instead “set out specific
facts showing a genuine issue for trial.” The News
& Observer Publ'g Co., 597 F.3d at 576 (quoting
Fed.R.Civ.P. 56(e)). These facts must offer “concrete
evidence from which a reasonable juror could return a verdict
in” the nonmoving party's favor. Anderson,
447 U.S. at 252. Indeed, “[m]ere speculation by the
non-movant cannot create a genuine issue of material
fact” sufficient for a nonmoving party to overcome its
burden. JKC Holding Co., 264 F.3d at 465. Put
simply: a “scintilla of evidence, ” without any
other support, is not enough to survive a motion for summary
judgment. Anderson, 447 U.S. at 252.
moves for summary judgment on each of the six remaining
counts of Plaintiffs' Complaint. Count I alleges a
violation of the federal Telephone Consumer Protection Act
(“TCPA”). Count II concerns violations of the
West Virginia Consumer Credit and Protection Act
(“WVCCPA”). Count IV claims that Defendant
violated the West Virginia Computer Crimes and Abuse Act
(“WVCCAA”). Counts VI, VII, and VII are
common-law tort claims grounded in negligence, intentional
infliction of emotional distress, and invasion of privacy,
than proceed directly through an analysis of each count, the
Court will first undertake a review of exactly which
communications remain at issue. As noted supra,
Plaintiffs do not contest Defendant's seven calls from
2016. Resp. in Opp'n, at 18. This leaves three
potential categories of communication in dispute: two early
termination bills from DISH, the Maury Cobb collection
letter, and a set of phone calls from (877) 839-0927. This
third category warrants the Court's immediate attention,
given its centrality to the bulk of Plaintiffs' claims
and the volume of argument that has surrounded it.
The (877) ...