The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
DECISION ORDER REPORT and RECOMMENDATION
This case was referred to the undersigned by Honorable Richard J. Arcara on February 23, 2009 for all pretrial matters. The matter is presently before the court on Defendant's motions, filed June 30, 2010, for summary judgment (Doc. No. 42), and September 2, 2010, to strike portions of Plaintiff's affidavit filed in opposition to summary judgment (Doc. No. 47).*fn1
On January 22, 2009, Plaintiff Lisa M. Strom ("Plaintiff" or "Strom") filed a Complaint commencing the instant action alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("the FDCPA" or "the Act"). On September 24, 2009, Plaintiff filed an amended complaint (Doc. No. 23) ("Amended Complaint") asserting the same FDCPA claims set forth in the original complaint, and also asserting a New York common law claim for intentional infliction of emotional distress.
Plaintiff specifically alleges Defendant National Enterprises, Inc.
("Defendant" or "NES"), violated 15 U.S.C. §§ 1692d and 1692d(2), "by
using language the natural consequence of which was abuse [of] the
hearer," Amended Complaint ¶ 24.A ("First Claim"), 15 U.S.C. §
1692d(5) "by repeatedly causing Plaintiff's telephone to ring with the
intent to annoy, abuse and harass," Amended Complaint ¶ 24.B ("Second
Claim"), and 15 U.S.C. §§ 1692e, 1692e(2)(A), 1692e(5), and 1692e(10)
"by [falsely] stating Defendant would freeze Plaintiff's bank accounts
and take away Plaintiff's Social Security Disability Insurance,
stating Plaintiff must be in court imminently," because Defendant had
already filed in Tonawanda Court*fn2 a claim against
Plaintiff for $26,000, and that Defendant had been authorized by
Plaintiff's creditors to commence legal action to collect such claim, Amended Complaint ¶ 24.C ("Third
Claim"),*fn3 , *fn4
and that Defendant's allegedly unlawful actions caused
Plaintiff to become nervous, anxious, upset, and to suffer from
physical symptoms and emotional distress in violation of New York
common law, Amended Complaint ¶ 25 ("Fourth Claim"). In connection
with her claims, Plaintiff seeks actual damages, statutory damages,
costs, disbursements, and attorneys fees pursuant to 15 U.S.C. §
1692k. Id. ¶ 29.
On June 30, 2010, Defendant filed a motion seeking summary judgment (Doc. No. 42) ("Defendant's Summary Judgment Motion"), supported by Defendant's Memorandum of Law in Support of Its Motion for Partial*fn5 Summary Judgment (Doc. No. 42-7) ("Defendant's Summary Judgment Memorandum "), Statement of Facts Pursuant to Local Rule 56.1(a) (Doc. No. 42-2) ("Defendant's Statement of Facts"), the Affidavit of Eric Thut in Support of Defendant's Motion for Summary Judgment ("Thut Affidavit") (Doc. No. 42-5), and Defendant's Appendix of Exhibits A through C to Local Rule 56.1(a) Statement of Material Facts (Doc. No. 42-3) ("Defendant's Exh(s). __").
In opposition to Defendant's Summary Judgment Motion, on August 19, 2010, Plaintiff filed Plaintiff's Response to Defendant's Material Statement of Facts (Doc. No. 45) ("Plaintiff's Statement of Facts"), a Memorandum of Law in Opposition to Defendant's Motion for Partial Summary Judgment (Doc. No. 44) ("Plaintiff's Summary Judgment Memorandum"), the Affidavit of Plaintiff, Lisa Strom (Doc. No. 44-4) ("Plaintiff's Affidavit"), Plaintiff's Appendix Pursuant to Local Rule 56.1(d) Statement of Material Facts (Doc. No. 44-2) ("Plaintiff's Appendix"), with exhibits A and B (Docs. Nos. 44-3 through 44-4) ("Plaintiff's Exh(s). __"). On September 2, 2010, Defendant filed a Reply in Support of Defendant's Motion for Partial Summary Judgment (Doc. No. 46) ("Defendant's Summary Judgment Reply"), transcripts of the October 12, 2009 videotaped depositions of LaShandra Spencer ("Spencer Transcript"), Joseph Yanock ("Yanock Transcript") (Doc. No. 46-2), and Linda Saleh ("Saleh Transcript") (Doc. No. 46-2) and the Amended Affidavit of Eric Thut ("Thut Supplemental Affidavit")*fn6 (Doc. No. 46-3).
On September 2, 2010, Defendant filed a Motion to Strike portions of Plaintiff's Affidavit (Doc. No. 47)("Defendant's Motion to Strike"), supported by the attached Memorandum of Law ("Defendant's Motion to Strike Memorandum"). On October 5, 2010, Plaintiff filed a Memorandum of Law in Opposition to Defendant's Motion to Strike Plaintiff's Affidavit (Doc. No. 51) ("Plaintiff's Motion to Strike Memorandum"). Defendant filed, on October 12, 2010, Defendant's Reply In Support of its Motion to Strike Portions of Plaintiff's Affidavit (Doc. 52) ("Defendant's Motion to Strike Reply"). Oral argument was deemed unnecessary.
Based on the following, Defendant's Motion to Strike is DENIED; Defendant's Summary Judgment Motion should be DENIED.
In June 2004, Plaintiff Lisa M. Strom ("Plaintiff" or "Strom"), underwent surgery to remove a malignant brain tumor, and was rendered unable to work. Subsequent to the surgery, Plaintiff received Social Security Disability Income ("SSDI"), had no other income, but did have debts, including a credit card loan with Citibank ("Citibank"), and a student loan with National Collegiate Trust ("the subject debts"). Amended Complaint ¶
10. Defendant National Enterprise Systems, Inc. ("Defendant" or "NES") was employed by Citibank and National Collegiate Trust to collect the subject debts. With no income with which to make required payments, Plaintiff defaulted on the subject debts. In March 2008, an employee of NES contacted Plaintiff by telephone in an attempt to collect the subject debts.*fn8 Defendant's employees continued to contact Plaintiff by telephone at least once a month between October and November 2008, in an attempt to collect the subject debts. In each telephone conversation with NES, when Plaintiff inquired why Defendant continued to contact her despite its knowledge that she was unable to pay the subject debts. Defendant's collector stated the telephone calls would continue until Plaintiff paid the subject debts.
According to Plaintiff, during one of the telephone calls between March and November 2008,*fn9 Defendant advised it would freeze Plaintiff's bank account and seize any SSDI benefits in Plaintiff's bank account. Amended Complaint ¶ 16. When Plaintiff replied that Defendant could not legally seize her SSDI funds, Defendant's representative replied whether Defendant could actually seize SSDI funds was irrelevant because Plaintiff's bank account would be frozen. Id. Plaintiff claims she began suffering seizures upon being told Defendant planned to freeze her bank account. Id.
For instance, on November 10, 2008, Defendant telephoned Plaintiff to collect the subject debts, which Plaintiff explained she was unable to pay. Defendant accused Plaintiff of deliberately not paying the subject debts and "trying to screw [Defendant] over." Amended Complaint ¶ 17 (bracketed material added). Plaintiff explained she had been diagnosed with brain cancer and was financially unable to make payments on the subject debts. Id. Defendant advised Plaintiff's bank accounts would be "frozen" and terminated the call. Id.
Later that same day, Plaintiff called Defendant and spoke with an NES employee identified as Mr. Bailey ("Bailey"),*fn10 who stated Plaintiff had to appear in Tonawanda Court and pay $16,000 of the subject debts, and $27,000 in total for court costs. Amended Complaint ¶ 18. Bailey further advised that if Plaintiff paid $3,500 prior to the court appearance scheduled for November 21, 2008, Defendant NES would settle the subject debts for $4,000. Id. Defendant transferred Plaintiff's call to Mark Ellis ("Ellis"), who inquired whether Plaintiff was able to pay $3,500 of the subject debts. Id. ¶ 19. When Plaintiff stated she was unable to pay $3,500 of the subject debts, Ellis informed Plaintiff he would mark Plaintiff's account as a "refusal to pay," that the subject debts would cost Plaintiff $26,000, and hung up the phone. Id. Plaintiff claims she suffered another seizure during the November 10, 2008 telephone calls with Defendant. Id.
On November 14, 2008, Defendant called Plaintiff to explain Defendant was filing a claim against Plaintiff for the subject debts. Id. ¶ 20. Plaintiff alleges she suffered a seizure after the November 14, 2008 telephone call. Id. ¶ 21.
Plaintiff maintains that following each telephone conversation with Defendant, Plaintiff experienced stress, became nervous, upset, anxious and suffered from physical symptoms and emotional distress. Amended Complaint ¶ 22.
Defendant has moved to strike portions of the Plaintiff's Affidavit filed in opposition to summary judgment on the basis that it improperly attempts to prove a causal connection between Defendant's telephone calls and Plaintiff's seizures based on inadmissible hearsay. Defendant's Motion to Strike Memorandum at 2. Defendant argues that striking portions of the Plaintiff's Affidavit is warranted as none of the information provided by Plaintiff regarding Plaintiff's seizures related to Defendant's collection actions based on Plaintiff's personal knowledge, that Plaintiff failed to show affirmatively that she is competent to describe the facts stated in her affidavit, and that Plaintiff's attempts to rely on statements made to her by her physician for the truth of the matter asserted constitute inadmissible hearsay. Id.
In opposition to the Defendant's Motion to Strike, Plaintiff maintains that 1) Plaintiff's statements explaining her symptoms do not constitute improper medical opinions; 2) that Plaintiff is competent to testify as to when and under what circumstances she suffers or is likely to suffer seizures; 3) Plaintiff's belief that stress causes seizures (based on the opinion of Plaintiff's physician) is admissible under Fed.R.Evid. 801(3) to show Plaintiff's state of mind; 4) Plaintiff's statements are admissible to establish Defendant's conduct meets the threshold requirement for intentional infliction of emotional distress; and 5) Defendant's reliance on Plaintiff's deposition testimony as evidence places Plaintiff's testimony before the court rendering Plaintiff's statements in Plaintiff's Affidavit unnecessary. Plaintiff's Motion to Strike Memorandum at 1-8.
Insofar as Defendant seeks to strike each of the challenged portions of Plaintiff's Affidavit for lack of personal knowledge, Defendant's Motion to Strike Memorandum at 1, Defendant essentially characterizes Plaintiff's statements as hearsay, defined as "a statement, other than one made by the declarant . . . offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Fed. R. Civ. P. 56(e) provides that [a] supporting and opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify to the matters stated.
Because hearsay is not admissible as evidence, hearsay statements in affidavits cannot be relied upon to avoid summary judgment. Estate of Hamilton v. City of New York, 627 F.3d 50, (2d Cir. 2010) (holding district court properly excluded hearsay statement that was not subject to any of the hearsay exceptions from evidence offered in opposition to summary judgment).
Upon a motion for summary judgment, "[a] court may therefore strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements." Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir.), cert. denied, 528 U.S. 965 (1999). To the extent an affidavit contains hearsay and other admissible evidence, a court may separately consider the admissible evidence. John Hancock Property and Casualty Insurance Co. v. Universale Reinsurance Co., Ltd., 147 F.R.D. 40, 45 (S.D.N.Y. 1993). The court considers whether any of the statements Defendant challenges in Plaintiff's Affidavit are inadmissible hearsay.
A. Statements Based on Personal Knowledge
A plain reading of Defendant's Motion to Strike establishes that Defendant seeks to strike statements contained in ¶¶ 4, 5A, 5B, 5D, 5E, 5F, 6, 7, 9, and 10 of Plaintiff's Affidavit because such statements are not based on Plaintiff's personal knowledge. Defendant's Motion to Strike Memorandum at 2-3. The particular statements Defendant seeks to strike include "and that they could cause me to suffer seizures," ¶ 4, "[u]pon hearing this, I began to suffer seizures," ¶ 5A, "[a]t the conclusion of the telephone call, I began to suffer seizures, and found it difficult to breathe," ¶ 5B, "I suffered another seizure during the course of the November 10, 2008 telephone calls," ¶ 5D, "I suffered another seizure when the telephone call ended," ¶ 5E, "and that the stress caused by the calls caused her to suffer seizures," ¶ 5F, "I have noticed that when I experience mental stress, that I often will suffer a seizure. In fact, I have noticed that my seizures differ when they are in reaction to a stressful situation as opposed to non-stress factors," ¶ 6, " [t]hat during each of the telephone calls described herein, I suffered a seizure . . . [t]hese are the types of seizures I have had in reaction to mental stress in the past," ¶ 7, "[t]hat in addition to the seizures I have suffered, the telephone calls and conversations described herein were a great source of anxiety, stress, and were extremely upsetting," ¶ 9, and "[i]n addition it was extremely upsetting to continue to receive the harassing and threatening telephone calls despite my pleas to stop because I could not handle them and that they caused seizures." ¶ 10. Defendant's Motion to Strike Memorandum at 2-3. Contrary to Defendant's contention that such statements are inadmissible hearsay, the court finds such statements are merely Plaintiff's own description of what Plaintiff personally experienced in connection with telephone calls from the Defendant's employees. See, e.g., Plaintiff's Affidavit ¶ 5A ("Upon hearing this, I began to suffer seizures.").
Nor is there any merit to Defendant's assertion that Plaintiff's Affidavit contains statements in which Plaintiff asserts a causal connection between and Defendant's contacts with Plaintiff and Plaintiff's seizures such that Plaintiff is asserting as evidence an expert medial opinion Plaintiff is unqualified to make. Defendant's Motion to Strike Memorandum at 2, 3. Plaintiff claims to have suffered emotional distress as a result of Defendant's calls, Amended Complaint ¶ 22, and such alleged distress is the basis for Plaintiff's state law emotional distress claim. Amended Complaint ¶ 25. Significantly, it is established that "'[w]hen the emotional distress alleged to have been suffered is the sort that would be experienced by reasonable people under the circumstances, some damage, even if merely nominal damage, can be presumed . . .. The extent of plaintiff's injury can be proved by plaintiff's testimony alone.'" Miller v. Midpoint Resolution Group, LLC, 608 F. Supp.2d 389, 394 (W.D.N.Y. 2009) (quoting In re Baker, 18 B.R. 243, 245 (Bankr. W.D.N.Y. 1982)). Accordingly, because the statements in Plaintiff's Affidavit challenged by Defendant in paragraphs 4, 5A, 5B, 5D, 5E, 5F, 6, 7, 9 and 10 describe what Plaintiff personally ...