United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Bond Arterton, U.S.D.J.
Robert Ashlund alleges in his Second Amended Complaint
("Am. Compl.") that Defendant I.C. System, Inc.
("ICS") violated Sections 1692d and 1692d(5) of the
Fair Debt Collection Practices Act ("FDCPA"), 15
U.S.C. § 1692 et seq. (Count One), as well as
Section 1692f of the FDCPA (Count Two). Defendant now moves
[Doc. # 73] for summary judgment on both Counts, while
Plaintiff moves [Doc. # 69] for summary judgment on Count One
only. Oral argument was held June 26, 2018. For the following
reasons, Plaintiffs Motion is denied and Defendant's
Motion is granted.
January 13, 2016, creditor Eversource Energy
("Eversource") (formerly known as Connecticut Light
& Power) assigned a delinquent account under the name of
Mary Ashlund to Defendant for collection. (Def.'s Loc. R.
56(a) 1 Stmt. ¶¶ 3-4; Pl.'s Loc. R.
56(a)2 Stmt. ¶¶ 3-4.) A skip trace vendor,
FirstData, provided telephone number (XXX) XXX-2424 to
Defendant in connection with Mary Ashlund's account.
(Id. ¶ 5.) Thereafter, Defendant began making
calls to the phone number ending in 2424 in an effort to
collect the debt owed by Mary Ashlund, placing 62 calls
between January 14, 2016 and April 11, 2016. (Id.
claims these calls "came in bursts" with fifteen
calls between January 16, 2016 and January 29, 2016, twenty
calls between February 2, 2016 and February 29, 2016, and
thirteen calls in the period between March 1, 2016 and March
17, 2016. (See Ex. H (Def.'s Call Log) to
Pl.'s Mot. for Summ. J. at ICS 6-13.) In fact, there were
slightly fewer calls in total because Defendant's call
log includes several erroneously-made duplicate entries, a
fact which Plaintiff admits-and while there were indeed
thirteen calls between March 1 and March 17, from the period
between January 16 and 29, there were thirteen, not fifteen
calls, and from February 2 to February 29 there were
nineteen, rather than twenty calls. (Def.'s Loc. R. 56(a) 1
Stmt. ¶ 10; Pl.'s Loc. R. 56(a)2 Stmt. ¶ 10.)
Defendant called twice a day on eight occasions: January 18,
2016, January 22, 2016, January 25, 2016, January 26, 2016,
March 17, 2016, March 21, 2016, March 22, 2016, and March 24,
2016. (Pl.'s Loc. R. 56(a) 1 Stmt. ¶ 13; Def.'s
Loc. R. 56(a)2 Stmt. ¶ 13.)
turns out, the 2424 number was not Mary Ashlund's phone
number, but the cellular telephone of her adult son,
Plaintiff. (Ex. A (Pl.'s Aff.) to Pl.'s Opp'n
¶¶ 2-3.) Shortly after the calls started, Plaintiff
claims to have answered a call on his cell phone during which
a representative stated he was calling from Defendant to
collect a debt. Plaintiff asserts that he told Defendant he
did not owe any debts, to stop calling, and then hung up.
(Ex. C (Pl.'s Dep.) to Pl.'s Opp'n at 24:2-10.)
According to Plaintiff, this was a very brief conversation
and Defendant did not identify the specific debt or the
debtor's name. (Id. at 23:21-24:1.) Defendant
denies this conversation occurred, contending that only four
of ICS' calls to Plaintiff were even connected and of
those four, none of ICS' calls resulted in a conversation
with Plaintiff." (Def.'s Loc. R. 56(a) 1 Stmt.
retained Kimmel & Silverman, P.C. for representation in
response to the calls. This law firm mailed Defendant a
letter demanding that Defendant ""IMMEDIATELY CEASE
AND DESIST" contacting Plaintiff, that "there ...
be absolutely no calls, letters, or other communications
whatsoever by any debt collector [, ]" and advising
Defendant not to "contact our client at home, at work,
by cellular phone, by mail, or otherwise." (Exhibit E
(Attorney Cease and Desist Letter) to Pl.'s Mot. for
Summ.}.) Defendant received this letter on January 18, 2016.
(Ex. F (Certified Mail Receipt for Cease and Desist Letter)
to Pl.'s Mot. for Summ. J.; Ex. G (Def.'s Dep.) to
id. at 40:19-21, 41:8-10, 42:8-13, 45:16-25, and
46:1-5.) Unfortunately, however, Plaintiff Counsel's
January 18, 2016, letter gave no telephone number or account
number to enable Defendant to comply with the cease demand,
particularly since Defendant did not have any collection
account associated with Plaintiffs name or address.
(Def.'s Loc. R. 56(a) 1 Stmt ¶¶ 28-29;
Pl.'s Loc. R. 56(a)2 Stmt. ¶¶ 28-29.) The
letter also failed to set forth Plaintiffs claim that he did
not owe the debt Defendant sought to collect. (Exhibit E to
Pl.'s Mot. for Summ. J.)
maintains that ICS left several voicemails on his cell phone,
but he has no record of the voicemails. (Def.'s Loc. R.
56(a) 1 Stmt. ¶ 30; Pl.'s Loc. R. 56(a)2 Stmt.
¶ 30.) Plaintiff also claims to have blocked
Defendant's calls to his phone number ending in 2424, but
has no record of blocking the calls either. (Def.'s Loc.
R. 56(a) 1 Stmt. ¶ 32; Pl.'s Loc. R 56(a)2 Stmt.
FDCPA applies to debt collection attempts by any person or
company that is a "debt collector" and which is
acting to collect a debt owed or alleged to be owed for
family, household, or personal purposes. See 15
U.S.C. § 1692a(5)-(6). There is no dispute that the
FDCPA applies here.
Plaintiffs Sections 1692d and 1692d(5) Claims
FDCPA prohibits "conduct the natural consequence of
which is to harass, oppress, or abuse any person in
connection with the collection of a debt." 15 U.S.C.
§ 1692d. Section 1692d then lists nonexclusive examples
of the type of conduct prohibited by the Act, including:
"[c]ausing 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." Id. § 1692d(5). Plaintiff asserts
two separate claims under 1692d: that Defendant's
repeated phone calls violate Section 1692d(5), and that
Defendant violated Section 1692d's general provision by
continuing to call Plaintiff despite Plaintiffs oral and
written requests that Defendant stop.
question of whether a plaintiff has put forth sufficient
evidence that he told a debt-collector to stop calling bears
on both of Plaintiff s 1692d claims. That Plaintiff made such
requests forms the basis for his claim that "the natural
consequence" of Defendant's conduct was to
"harass, oppress, or abuse" him under Section
1692d, and courts have often considered a plaintiffs evidence
of a request when deciding whether a defendant acted with
intent to annoy, abuse, or harass under Section 1692d(5),
see e.g., Conover v. BYL Collection Servs., LLC, No.
11-CV-6244P, 2012 WL 4363740, at *6 (W.D.N.Y. Sept. 21,
2012); Chavious v. CBE Grp., Inc., No. 10-CV-1293 JS
ARL, 2012 WL 113509, at *3 (E.D.N.Y. Jan. 13, 2012).
Therefore, the Court first addresses whether Plaintiff has
proffered sufficient evidence that he requested that
Defendant cease calling his phone number. Defendant maintains
that, despite Plaintiffs testimony to the contrary, its call
records indisputably show that Plaintiff never spoke to an
operator on any of the phone calls, and therefore could not
have made any oral request that Defendant stop calling.
Furthermore, Defendant urges that the letter sent by
Plaintiffs counsel on January 18, 2016 did not effectively
communicate Plaintiffs demand that Defendant cease calling
respect to Plaintiffs claim that he answered the phone and
spoke with a representative of Defendant, asking that
Defendant refrain from continuing to call his phone,
Defendant's internal Call Log generated from its computer
records for all calls to Plaintiffs telephone number show
that at no point was Plaintiff ever connected to an operator.
All but four of the calls reached Plaintiffs voicemail, at
which point Defendant hung up. (See Ex. C. (Call Log
Summary) to Def.'s Mot. for Summary Judgment.)
Defendant's records reveal three phone calls reflecting
"Hung up in Opening," and one "Operator
Transfer (Caller Abandoned Before Connect") both of
which indicate that although the call was initially
connected, it was disconnected before an ICS customer service
representative came on the line. (See id.; Ex. F
(Selbitschka Affidavit) ¶ 26.) And while Plaintiff
produces a several hundred page T-Mobile record (Ex. B to