United States District Court, E.D. Missouri, Northern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion for
Summary Judgment, [Doc. No. 28]. For the reasons set forth
below, the motion is granted.
Shannon Benson claims that efforts made by Defendant
Portfolio Recovery Associates, LLC to collect debt allegedly
owed by Benson violated the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et seq. Plaintiff alleges
that Defendant, a debt collector, in connection with the
collection of a debt engaged in conduct the natural
consequence of which were to harass, oppress, or abuse
Plaintiff, and caused a telephone to ring to engage Plaintiff
in telephone conversation repeatedly or continuously with the
intent to annoy, abuse or harass Plaintiff in violation of
FDCPA §§ 1692d and 1692d(5).
seeks summary judgment on Plaintiff's claim, arguing that
its communications with Plaintiff did not violate the FDCPA.
In support of its motion, Defendant claims that Plaintiff has
not presented evidence to support her claim.
judgment is proper where the evidence, when viewed in a light
most favorable to the non-moving party, indicates that no
genuine issue of material fact exists and that the moving
party is entitled to judgment as a matter of law.”
Davison v. City of Minneapolis, Minn., 490 F.3d 648,
654 (8th Cir. 2007); see Fed. R. Civ. P. 56(a).
Summary judgment is not appropriate if there are factual
disputes that may affect the outcome of the case under the
applicable substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). An issue of material
fact is genuine if the evidence would allow a reasonable jury
to return a verdict for the non-moving party. Id.
“The basic inquiry is whether it is so one-sided that
one party must prevail as a matter of law.” Diesel
Machinery, Inc. v. B.R. Lee Industries, Inc., 418 F.3d
820, 832 (8th Cir. 2005) (internal quotation marks and
citation omitted). The moving party has the initial burden of
demonstrating the absence of a genuine issue of material
fact. Torgerson v. City of Rochester, 643 F.3d 1031,
1042 (8th Cir. 2011) (citation omitted). Once the moving
party has met its burden, “[t]he nonmovant must do more
than simply show that there is some metaphysical doubt as to
the material facts, and must come forward with specific facts
showing that there is a genuine issue for trial.”
Id. (internal quotation marks and citation omitted)
survive a motion for summary judgment, the “nonmoving
party must ‘substantiate his allegations with
sufficient probative evidence [that] would permit a finding
in [his] favor based on more than mere speculation,
conjecture, or fantasy.'” Putman v. Unity
Health System, 348 F.3d 732, 733-34 (8th Cir. 2003)
(quoting Wilson v. Int'l Bus. Machs. Corp., 62
F.3d 237, 241 (8th Cir. 1995)). The nonmoving party may not
merely point to unsupported self-serving allegations, but
must substantiate allegations with sufficient probative
evidence that would permit a finding in his or her favor.
Wilson, 62 F.3d 237, 241 (8th Cir. 1995). “The
mere existence of a scintilla of evidence in support of the
[nonmoving party's] position will be insufficient; there
must be evidence on which the jury could reasonably find for
the [nonmovant].” Anderson, 477 U.S. 242 at
252; Davidson & Associates v. Jung, 422 F.3d
630, 638 (8th Cir. 2005). Summary Judgment will be granted
when, viewing the evidence in the light most favorable to the
nonmoving party and giving the nonmoving party the benefit of
all reasonable inferences, there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law. Samuels v. Kansas City Mo. Sch.
Dist., 437 F.3d 797, 801 (8th Cir. 2006). “Mere
allegations, unsupported by specific facts or evidence beyond
the nonmoving party's own conclusions, are insufficient
to withstand a motion for summary judgment.” Thomas
v. Corwin, 483 F.3d 516, 526-7(8th Cir. 2007).
“Simply referencing the complaint, or alleging that a
fact is otherwise, is insufficient to show there is a genuine
issue for trial.” Kountze ex rel. Hitchcock
Foundation v. Gaines, 2008 WL 2609197 at *3 (8th Cir.
prevail on a claim pursuant to the FDCPA, plaintiff must
allege and prove that “(1) the plaintiff is a
‘consumer' within the meaning of the statute; (2)
the defendant collecting the debt is a ‘debt
collector' within the meaning of the statute; [and] (3)
the defendant has violated by act or omission a provision of
the FDCPA.” Glackin v. LTD Fin. Servs., L.P.,
No. 4:13-CV-00717 CEJ, 2013 WL 3984520, at *1 (E.D. Mo. Aug.
1, 2013). The first two elements are not in dispute.
FDCPA expressly prohibits many harassing, deceptive, and
unfair debt collection practices, including the use of
obscene language or threats of violence, impersonation of
government officials, misrepresentation of a consumer's
legal rights, and simulation of court process. In addition to
such specific prohibitions, the FDCPA in general terms
prohibits any harassing, unfair or deceptive collection
practices. This allows courts, where appropriate, to
proscribe other improper conduct which has not been
specifically addressed. “[A]lthough the question of
whether conduct harasses, oppresses, or abuses will
[ordinarily] be a question for the jury, ... Congress has
indicated its desire for the courts to structure the confines
of § 1692d.” Gallagher v. Gurstel, Staloch
& Chargo, P.A., 645 F.Supp.2d 795, 799 (D. Minn.
2009) (quoting Harvey v. Great Seneca Fin. Corp.,
453 F.3d 324, 330 (6th Cir.2006) (internal quotation
omitted)). “If a creditor's alleged acts do not
have the natural consequence of harassing, oppressing, or
abusing a debtor, courts will dismiss the claim.”
determine whether a debt collector's calls amount to
harassment, annoyance or abuse, the volume of calls must be
examined along with the pattern in which they were made and
whether or not they were accompanied by oppressive
conduct.” Moore v. CCB Credit Services, Inc.,
4:11CV2132 RWS, 2013 WL 211048, at *3 (E.D. Mo. Jan. 18,
2013). “Making legitimate, persistent efforts to
contact a debtor does not violate the FDCPA.”
Id. at *4. Even “placing one or two unanswered
calls a day in an unsuccessful effort to reach the debtor, if
this effort is unaccompanied by any oppressive conduct
(threatening messages), ” is not sufficient to show an
FDCPA violation. Id. at *3.
Record and Discussion
has, in accordance with the Court's Local Rules,
submitted a Statement of Uncontroverted Material Facts.
Although Plaintiff included a “Counter-Statement of
Material Facts” in her memorandum, she failed to note
the disputed paragraph number from Plaintiff's statement
of facts and failed to support some of her statements with
any specific references to admissible ...