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Davis v. Dish Network, LLC

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

October 22, 2019




         Presently 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 Defendant's motion.

         I. BACKGROUND

         This 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.”[1] Resp. in Opp'n, at 18.

         Over 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.

         Plaintiffs 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.

         On 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.

         Although 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.[2] 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.

         Around 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, [3] and 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.[4] 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.”[5] Def.'s Ex. A, at ¶ 7.

         On July 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.[6] 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.[7] 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.


         A court 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)).

         In 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.


         Defendant 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, respectively.

         Rather 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.

         A. The (877) ...

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