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Kenny v. Mercantile Adjustment Bureau, LLC

United States District Court, Second Circuit

May 1, 2013

EMMET KENNY, Plaintiff,
v.
MERCANTILE ADJUSTMENT BUREAU, LLC, Defendant.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief District Judge.

I. INTRODUCTION

Plaintiff Emmet Kenny commenced this action on December 16, 2010, seeking damages for Defendant Mercantile Adjustment Bureau's ("MAB") alleged violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"), and the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. §§ 227, as well as its intentional infliction of emotional distress. Currently before this Court is MAB's Motion for Summary Judgment. (Docket No. 36.) The motion is fully briefed and the Court finds there is no need for oral argument. For the reasons stated below, Defendant's Motion is granted and this case is dismissed.

II. BACKGROUND

The following facts are undisputed, unless noted otherwise. MAB is a debt collection agency, and this action involves calls it made to Plaintiff's cell phone. Plaintiff, who does not have a home telephone number, obtained the cell phone number at issue approximately eight years ago.

Approximately four or five years ago, Plaintiff took his brother-in-law, Lloyd Richards III, to Kenmore Mercy Hospital for treatment. During the admissions process, the hospital required a contact number, so Plaintiff allowed Richards, who did not then have a home or cellular phone, to enter Plaintiff's cell phone number on the hospital admission form. According to Plaintiff, he told the hospital staff: "You can call me if Lloyd's dead or he's dying" and "Don't call me for anything else." Pl's Depo. 34:13-16, 35:13-18.

Over a several year period, both men incurred debts for medical services that were placed with MAB for collections. Two accounts related to Plaintiff, and were placed with MAB by Buffalo Emergency Associates on October 3, 2001 and May 15, 2008, respectively. These accounts are not in dispute. At issue here are phone calls Plaintiff claims to have received in 2010 on twelve MAB accounts involving debts his brother-in-law, Richards, owed to Kenmore Mercy Hospital and Buffalo Emergency Associates.

The first two accounts were placed with MAB by Buffalo Emergency on April 21, 2010. MAB did not initiate any calls to Plaintiff's cell phone regarding these accounts.[1] On September 9, 2010, Richards called MAB and left a message regarding one of the accounts. He requested a return call, and left Plaintiff's cell as the number where he could be reached. MAB returned the call, was told by Plaintiff that it was a wrong number, and it removed Plaintiff's number from both of its Richards accounts.

Buffalo Emergency placed another of Richards' accounts with MAB on May 21, 2010. Five calls were placed to Plaintiff's cell number over a 15-day period. On June 10, 2010, MAB was advised that it was calling a wrong number and it removed the number from this file.

On June 18, 2010, Buffalo Emergency placed two more Richards accounts with MAB. Plaintiff's cell number, which Richards had given at the hospital, was called once on June 22, 2012. The phone number was removed from these accounts later that same day. Kenmore Hospital and Buffalo Emergency each placed an account for Richards with MAB on July 19, 2010. MAB placed one call to Plaintiff's cell on August 9, 2012, before removing his number from Richards' accounts on August 12, 2010.

Kenmore Mercy placed another Richards account with MAB on August 19, 2010. Two dialer calls were made to Plaintiff's cell. Plaintiff advised MAB, on September 9, 2010, that it was calling a wrong number, at which time his number was removed from the account.

On September 20, Kenmore Mercy placed a new account for Richards with MAB. Two manual calls were made to Plaintiff's cell. A short time later, on September 29, 2010, Buffalo Emergency placed another new Richards account with MAB. Dialer calls were placed to Plaintiff's cell on October 4 and 14, 2010. Plaintiff advised MAB, on October 14, 2010, that it was calling a wrong number, at which time his number was removed from these final two accounts.

Plaintiff commenced this action on December 16, 2010, alleging that Defendant: (1) violated the FDCPA by intentionally placing repeated calls to harass and annoy him, and by failing to state that they were calling to collect information for Lloyd Richards; (2) violated the TCPA by contacting his cell phone with an automated dialing system and recorded voice without his consent; and (3) intentionally and maliciously inflicted emotional distress on him. MAB has moved for summary judgment.

III. DISCUSSION

"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, 124 S.Ct. 53, 157 L.Ed.2d 24 (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

In his first claim for relief, Plaintiff asserts that MAB violated three ...


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