United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
Robert Schlattmann brings this case under the Fair Debt
Collection Practices Act (“FDCPA”) against
defendant Portfolio Recovery Associates, LLC
(“PRA”), alleging that PRA called him over 70
times for a debt that Schlattmann did not owe. The parties
have cross-moved for summary judgment.
following facts are undisputed except where indicated.
Plaintiff acquired a residential telephone number ending in
-8996 in December 2014. Defendant PRA is a debt collector as
defined by the FDCPA. Between December 1, 2014 and June 11,
2016, defendant PRA called the 8996 telephone number 73 times
in an attempt to reach an individual identified as M.A. who
owned a credit account ending in 9992. M.A. previously used
the telephone number ending in 8996 which was acquired by
plaintiff in December 2014.
a log for the calls it made to phone number 9886 between
December 2014 and June 11, 2016. The average frequency of
PRA's phone calls to the 8996 number was four times per
month. Between December 2014 and June 11, 2016, PRA called
the 8996 number three times in a single day on one occasion
--- at 10:26 a.m., 12:17 p.m., and 5:17 pm. CST. The earliest
time PRA called the 9886 number was at 8:03 a.m. CST and the
latest call was at 8:35 p.m. CST.
submitted an affidavit from nonparty M.A., who was the
account holder for the credit account ending in 9992 and the
individual PRA intended to reach when PRA called number 8996.
M.A. states that PRA began calling him at various phone
numbers (including the 8996 number) beginning in 2008. M.A.
avers that he asked PRA to stop calling him and that he
changed his phone number and filed for bankruptcy in response
to PRA's efforts to collect on the debt. PRA's
business records do not reflect that M.A. ever asked PRA to
call logs to the 8996 number show that the phone calls
terminated in various ways. Most calls resulted in “No
Contact” due to “No answer” or
“Answering Machine/Voice Mail” for which
“No Message” was left. For six calls, an
“unknown party” answered the call. PRA states
that, according to its procedures, if its agent had learned
that the accountholder M.A. had not been reachable at the
8996 phone number, a result code of “Wrong
Number” would have been indicated on the log. None of
the calls to 8996 received a “Wrong Number” code
result. Two calls had the result code of “Cust hung up
in OUT Q, ” meaning that the call connected but the
party hung up before an agent of PRA could speak with him or
her. Three calls had the result code of “Left Message
Voice.” And one call had the result code “Did not
ID.” “Left Message Voice” is presumably
different from the codes reflecting that a message was left
on voicemail for calls that were not answered by person. But
defendant does not explain what “Left Message
Voice” or “Did not ID” codes mean.
received phone calls from the 8996 phone number on February
12, February 17, May 2, and June 14, 2016. PRA has recordings
for each of those calls. The caller said nothing to PRA
during the February 12, February 17, and May 2 calls. During
the June 14 call, however, the caller identified himself as
plaintiff Schlattmann and provided the 8996 phone number. PRA
apologized, stated it had a wrong number, and advised
plaintiff that it would remove the number. PRA states that
was the first time it learned that the accountholder M.A.
could not be reached at the 8996 phone number. Plaintiff,
however, states that he told defendant multiple times between
December 2014 and June 2016 that it had the wrong number and
not to call again.
filed this lawsuit on June 16, 2016, claiming that defendant
had violated the FDCPA.
to Rule 56(c), a district court may grant a motion for
summary judgment if all of the information before the court
demonstrates that “there is no genuine issue as to
material fact and the moving party is entitled to judgment as
a matter of law.” Poller v. Columbia Broadcasting
System, Inc., 368 U.S. 464, 467 (1962). The burden is on
the moving party. Mt. Pleasant, 838 F.2d at 273.
After the moving party discharges this burden, the nonmoving
party must do more than show that there is some doubt as to
the facts. Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Instead, the
nonmoving party bears the burden of setting forth specific
facts showing that there is sufficient evidence in its favor
to allow a jury to return a verdict for it. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
ruling on a motion for summary judgment, the court must
review the facts in a light most favorable to the party
opposing the motion and give that party the benefit of any
inferences that logically can be drawn from those facts.
Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.
1983). The Court is required to resolve all conflicts of
evidence in favor of the nonmoving party. Robert Johnson
Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210
(8th Cir. 1976). With these principles in mind, the Court
turns to the discussion