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Albert A. Nigro v. Mercantile Adjustment Bureau

March 11, 2013


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge



Plaintiff commenced this action seeking actual and statutory damages for Defendant's alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227 et seq. Presently before the Court is Defendant's motion for summary judgment.*fn1 The Court finds the matter fully briefed and oral argument unnecessary. For the reasons that follow, Defendant's motion is granted and the complaint is dismissed.


The following facts are undisputed by the parties unless otherwise specified. (See Def's St. of Undisputed Facts, Docket No. 24; Pl's Resp. to Def's Facts, Docket No. 26.)

In September 2008, Plaintiff contacted National Grid to discontinue electrical service for the residence of his mother-in-law, Joan Thomas, who had recently passed away. Defendant asserts that, at that time, Plaintiff "voluntarily gave National Grid his name and his [cell phone number] as a point of contact on the Joan Thomas account." (Def's St. of Undisputed Facts ¶ 6.) Plaintiff responds that he gave his cell phone number because this was "the condition imposed upon him" by National Grid to "effectuate disconnection of electrical service." (Pl's Resp. to Def's Facts ¶ 6) He states that he did not give his number "for any other purpose other than to shut off Ms. Thomas' electric service to the apartment." (Decl. of Albert Nigro ¶ 7, Docket No. 26.)

National Grid hired Defendant in April 2010 to collect the outstanding balance owed on the Thomas account. Between April 29, 2010 and January 28, 2011, Defendant utilized an automated dialing system to contact Plaintiff's cell phone 72 times. (Def's St. of Undisputed Facts ¶ 9; Pl's Resp. to Def's Facts ¶ 9.) Each call consisted of the following recording:

Message is for Joan Thomas. If you are not Joan Thomas, please disconnect this call. By continuing to listen to this message you acknowledge that you are Joan Thomas. This is (unintelligible) at Mercantile Adjustment Bureau. Please contact me about an important personal business matter at 800-466-5059. This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose. (Nigro Decl. ¶ 12.) Plaintiff never called Defendant or sent a written request to stop the calls to his cell phone number. He instead commenced the present action in December 2010, alleging that Defendant (1) violated the FDCPA by intentionally harassing Plaintiff by causing his cell phone to repeatedly ring; and (2) violated the TCPA by using an automated telephone dialing system and recorded voice to contact Plaintiff's cell phone without his consent.


"A motion for summary judgment may properly be granted . . . only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A court's function on a summary judgment motion "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor, 609 F.3d at 545. "A dispute regarding a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 248), cert denied, 540 U.S. 811 (2003). Further, a court must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003).

A. FDCPA Claim

The FDCPA prohibits a debt collector from engaging "in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt," including "[c]ausing a telephone to ring . . . repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." 15 U.S.C. § 1692d(5). As Defendant notes, "[a]ny call from a debt collector may be presumed to be unwelcome, but that alone is insufficient to constitute a violation of the FDCPA." Martin v. Select Portfolio Serving Holding Corp., No. 1:05-cv-273, 2008 WL 618788, *6 (S.D.Ohio Mar. 3, 2008). "To prevail under § 1692d, the [plaintiff] must show not only that the contents of the calls were harassing, abusive, or misleading, but must also establish the callers' intent." Id. (citing Juras v. Aman Collection Serv., Inc., 829 F.2d 739, 741(9th Cir. 1987), cert. denied, 488 U.S. 875 (1988)); Kerwin v. Remittance Assistance Corp., 559 F. Supp. 2d 1117, 1124 (D. Nev. 2008).

Courts generally consider the volume and pattern of calls in determining whether there was an intent to annoy or harass. Hinderliter v. Diverisified Consultants, Inc., No. 6:10-CV-1314, 2012 WL 3888148, *2 (N.D.N.Y. Sept. 7, 2012); Chavious v. CBE Group, Inc., No. 10-CV-1293, 2012 WL 113509, *2 (E.D.N.Y. Jan. 13, 2012); Carman v. CBE Group, Inc., 782 F. Supp. 2d 1223, 1229 (D. Kan. 2011). Specifically, "[c]courts have awarded defendants summary judgment where the volume and pattern of calls demonstrates an intent to contact debtors rather than an intent to annoy, abuse, or harass them." Chavious, 2012 WL 113509, *2. These judgments are often based on: undisputed evidence of factors such as the following: the plaintiff did not answer most or all of the defendant's telephone calls; the plaintiff did not ask the defendant to stop calling; the defendant did not make numerous calls in a single ...

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