United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
TERRY I. ADELMAN, Magistrate Judge.
Plaintiff Leroy Buchholz filed this action alleging that Defendant Valarity, LLC violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., and willfully violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., by repeatedly calling his cell phone in connection with an unpaid medical bill. Now before the Court are the parties' Joint Motion for Clarification of the Court's Order of June 25, 2014, (ECF No. 93); Defendant's Renewed Motion to Strike Plaintiff's Amended Response to Request for Admission No. 2, (ECF No. 94); and Defendant's Motion for Reconsideration of the Court's Order of June 25, 2014, (ECF No. 97). The motions have been fully briefed.
For the reasons set forth below, the Court will grant Defendant's Renewed Motion to Strike Plaintiff's Amended Response to Request for Admission No. 2, grant the Joint Motion for Clarification of the Court's Order of June 25, 2014, and deny Defendant's motion for reconsideration of the denial of its motion for summary judgment with respect to the TCPA claim.
This case stems from Defendant's use of an automatic telephone dialing system ("ATDS") to repeatedly call Plaintiff's cell phone in an attempt to collect a $354 debt Plaintiff owed to Mercy Clinic Family Medicine Branson West ("Mercy") for healthcare services provided by Dr. Paul Geiger, a physician associated with Mercy. (D.'s Statement of Uncontroverted Material Facts, (ECF No. 30 ¶¶ 5, 19, 22); (D.'s Response to Plaintiff's Request for Admission No. 10, (ECF No. 46-6.) Plaintiff was seen by Dr. Geiger on several occasions between November 30, 2010 and April 10, 2012. (ECF No. 46-5.)
Pursuant to an agreement with Defendant, Mercy assigns delinquent accounts to Defendant for the purpose of debt collection. (ECF No. 30-2 at 11.). Mercy placed Plaintiff's debt with Defendant for collection and sent Defendant an Electronic Data Placement file containing Plaintiff's past due accounts and Plaintiff's cell phone number. (D's SUMF ¶¶ 18-21); (ECF No. 46-4 p. 83 ll. 6-9.)
Defendant placed the disputed calls to Plaintiff's cell phone number in an attempt to collect a balance associated with Plaintiff's visits to Dr. Geiger, on October 12, 2011 and April 10, 2012. (D.'s Response to Plaintiff's Request for Admission Nos. 2, & 9; (ECF No. 46-6.) None of the calls Defendant placed to Plaintiff were for "emergency purposes" within the meaning of 47 U.S.C §227(b) (1) (A). (ECF No. 9 at ¶ 31.)
Defendant asserts that it obtained Plaintiff's cell phone number in connection with intake information, including a "Consent for Physician Services" form ("Consent Form"). Mercy requests when a patient first presents for treatment. D's SUMF at ¶ 8. It is undisputed, however, that Plaintiff's cell phone number does not appear on the Consent Form. To date, neither Mercy nor Defendant has produced any document showing that Plaintiff provided his cell phone number to either Mercy or to Defendant, (ECF No. 43-2 p. 8 ll. 1-11; p. 26 ll. 3-12); (ECF No. 46-4 p. 78 ll. 16-21; p. 82 ll. 11-14); (ECF No. 46-8), and the exact manner in which Mercy obtained Plaintiff's telephone number is unknown. (ECF No. 43-2 p. 25 ll. 24-25; p.26 ll. 1-14; p. 36 ll. 6-15; p. 36 ll. 16-21; p 38 ll. 25; p. 39 ll. 1-7 & 10-15.)
Nonetheless, Defendant points to the Consent Form as evidence that Plaintiff consented to receive calls on his cell phone for purposes of collecting any debt owed Mercy for medical services.
Pursuant to Defendant's policy, obtaining either the "last four digits of the called party's social security number or his date of birth is the only acceptable means to identify the responsible party. (ECF No. 46-11, p. 34 ll. 1-9; p. 35 ll. 3-8.). This method of confirming the identity of the called party is not required under the FDCPA. Id. at p. 34 ll. 1-9; p. 35 ll. 3-8. Defendant does not have a policy or procedure limiting the number of times an individual is called in a single day or prohibiting calls on consecutive days. (ECF No. 46-4, p.4 ll. 5-7.)
Defendant placed 233 calls to Plaintiff's cell phone from November 30, 2011 through March 11, 2013. (ECF No. 46-7.) Plaintiff answered Defendant's calls on five occasions. (ECF Nos. 46-9 & 46-10.) On November 30, 2011, during a conversation with Defendant, Plaintiff informed Defendant that he did not wish to release personal information over the telephone. Plaintiff asked Defendant to mail him a letter or find another way to contact him. (ECF No. 46-10, p. 2-3); (ECF No. 46-12.) Defendant's records indicate that on January 23, 2012, during a conversation with Defendant, Plaintiff asked but Defendant refused to identify the purpose of the call unless Plaintiff confirmed his date of birth. Plaintiff informed Defendant that would not disclose personal information out over the phone and told the Defendant to "stop calling [him]." (ECF No. 46-11, p. 5-6.) This impasse occurred on several occasions.
Plaintiff received 221 additional calls from Defendant after the January 23, 2012 call. (ECF No. 46-12.) Defendant's records for March 6, 2012, indicate that Plaintiff again told the Defendant to stop calling him. (ECF No. 46-11, p. 7); (ECF No. 46-12.)
During each of the five documented conversations between Plaintiff and Defendant, Plaintiff identified himself as "Leroy" and/or "Leroy Buchholz." (ECF No. 46-11.) Defendant asserts that it continued to call Plaintiff, despite his requests that the calls stop, because Defendant's policies and procedures required that the contacted individual confirm his or her identity. (ECF No. 46-4, p. 92 ll. 25; p. 93 ll. 1-5.)
On February 26, 2013, Plaintiff filed this suit alleging in Count I that Defendant violated the TCPA by repeatedly placing non-emergency telephone calls to Plaintiff's cell telephone using an automatic telephone system or prerecorded or artificial voice without Plaintiff's prior express consent, and in Count II that Defendant violated the FDCPA by willfully engaging in conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt; by causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number; by attempting to collect on a ...