In Little v. Portfolio Recovery Associates, LLC, 2014 WL 1400660 (D.Kan. 2014), Judge Martin denied in part and granted in part a debt collector’s Motion to Dismiss an FDCPA claim based upon call frequency. Judge Marten detailed the law on the number of calls permitted and/or permitted per day, and found that, at the Motion to Dismiss stage, the Plaintiff could state a claim.
PRA argues that the Amended Complaint remains impermissibly vague. It notes the many cases holding that frequent calls, by themselves, do not establish an intent to harass. In determining whether a collection service has violated § 1692d(5), the Court considers the volume and pattern of the calls by the debt collector to the plaintiff. A high volume of calls, even daily calls, unaccompanied by other egregious conduct is insufficient to raise a triable issue of fact for the jury. Webb v. Premiere Credit, No. 12–2001, 2012 WL 5199754, *3 (D.Kan. Oct. 22, 2012) (footnotes omitted). As PRA notes, Webb is consistent with other decisions interpreting § 1692d(5). See Miller v. Prompt Recovery Servs., No 11–2292, 2013 WL 3200659 (N.D. Ohio June 24, 2013); Conover v. BYL Collection Servs., No. 11–6244, 2012 WL 4363740 (W.D.N.Y. Sept 21, 2012); Carman v. CBE Group, 782 F.Supp.2d 1223, 1232 (D.Kan.2011). [FN2 FN2. Miller contains an extensive description of cases determining that a frequency of up to four daily calls by itself will usually not indicate an intent to harass. The court noted that in the case before it “it is clear that the volume of the calls—32 or 33 over a four month period, and the frequency of the calls—“including multiple times per day”—alone, do not create an issue of fact. Courts have found a much higher volume of calls, alone, insufficient to defeat summary judgment. See, e.g., Wait v. Fin. Recovery Servs., Inc., No. 8:09–cv–02336, 2010 WL 5209350 (M.D.Fla.Dec.16, 2010) (granting summary judgment, notwithstanding evidence that debt collector made 132 calls in a nine month period, often calling four times per day); Carmen v. CBE Group, Inc., 782 F.Supp.2d 1223 (D.Kan.2011) (granting summary judgment although debt collector called 139 times during two months); Pugliese [v. Professional Recover Service, No. 09–12262], 2010 WL 2632562 [ (E.D.Mich.2010) ] (finding evidence that the debt collector called 350 times during eight months insufficient, as a matter of law, to establish harassment under the FDCPA). Courts have also found that even “daily” calls, unaccompanied by other egregious conduct, do not establish harassment. See Arteaga [v. Assent Acceptance,] 733 F.Supp.2d [1281,] 1229 [ (E.D.Cal.2010) ] (allegations of “daily” or “near daily” phone calls alone do not raise an issue of fact as to harassment); see, e.g., Saltzman v. I.C. Sys., Inc., No. 09–10096, 2009 WL 3190359, at *7 (E.D.Mich.Sept.30, 2009) (“[A] debt col-lector does not necessarily engage in harassment by 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 such as threatening messages .”) (quoting Akalwadi v. Risk Mgmt.Alternatives, Inc., 336 F.Supp.2d 492, 505 (D.Md.2004)).” 2013 WL 3200659, at *5 (docket reference and footnote omitted).]
Judge Marten said that even multiple calls per day might be permitted, in the absence of other egregious conduct, but found that Plaintiff stated a claim at the pleading stage by alleging that the calls continued despite the Plaintiff telling the Defendant that she could not pay the debt.
However, a “high volume of calls, even daily calls” is one thing, multiple calls in the same day is another. As Webb itself recognized, “Other egregious conduct may include calling after immediately hanging up, calling multiple times in a single day, calling places of employment, calling family or friends, calling at odd hours, or calling after being asked to stop.” 2012 WL 5199754 at *3. See also Conover, 2012 WL 4363740 at *6 (“numerous calls on the same day or multiple calls during a short period of time may constitute harassment”). In the present case, the Amended Complaint alleges that PRA called “multiple times per day,” and that calls continued even after she told PRA that she could not pay the debt. ¶ PRA agrees that continuing to call after the debtor asks for such calls to stop may evidence an intent to harass, and distinguishes one of the cases cited by plaintiff on this basis. See Brandt v. I.C. System, 2010 WL 582051 (M.D.Fla. Feb. 19, 2010) (“[o]nce Plaintiff allegedly told Defendant to stop calling him, that he had already paid the alleged debt, and that their calls were bothering him, each of the 101 subsequent phone calls to Plaintiff constituted a violation of 15 U.S.C. § 1692d”). Here, PRA stresses, the Amended Complaint does not allege that Little asked PRA to stop calling, only that she could not pay the debt. ¶ . . . PRA cites two cases in support of its don’t call/can’t pay distinction, Durthaler v. Accounts Receivable Mgt., 854 F.Supp.2d 485, 489–92 (S.D.Ohio 2012) and Hinderliter v. Diversified Consultants Inc., No. 10–1314, 2012 WL 3888148 (N.D.N.Y. Sept. 7, 2012). . . The court finds that Durthaler is distinguishable in that the single statement the debtor could not pay was explicitly linked to a determination that the calls were not made “repeatedly.” Here, Little’s complaint makes precisely this allegation. Hinderliter is distinguishable because the plaintiff’s statement that he could not pay was clearly equivocal, and it was coupled with evidence showing the frequency of the calls. ¶ Further, the court notes that all of the cited cases involve resolution of summary judgment motions, rather than a motion to dismiss resting on Twombly and Igbal. Prior to granting summary judgment, the court in Webb v. Premiere Credit denied the defendant’s Rule 12(b) motion to dismiss. In doing so, the court rejected the argument “that Plaintiffs’ allegations lack ‘crucial’ information about the dates and times of the alleged phone calls.” Webb v. Premiere Credit, 2012 WL 2359434, *3 (D. Kan. June 20, 2012). The court found that the defendant called “continuously” and “on multiple occasions six times per day on continuous days,” and that this was sufficient to withstand the motion to dismiss. The court observed that “to the extent preparation of a defense requires more information about the ‘days or dates,’ the ‘time period,’ and the ‘time of day’ of the alleged phone calls, Defendant can determine those details through discovery .” Id. (footnote omitted). ¶ Here, the Amended Complaint does not give any maximum number of calls in a given day, stating only that PRA called “multiple times per day.” However, unlike Webb v. Premiere Credit, Little alleges that “they continued to call after advised Plaintiff could not pay.” Given requirement to grant all inferences in favor of the plaintiff, the court construes this statement that Little could not pay as unequivocal. While Paragraph 32 is ambiguous as to frequency of telephone calls after Little stated she could not pay, Paragraph 33 alleges that PRA agents continued to engage her in conversation “multiple times per day … after” she stated she could not pay. ¶ A complaint need not provide “detailed factual allegations,” Twombly, 550 U.S. at 545. It is sufficient if the claim for relief is plausible, and the court accordingly denies the Renewed Motion to Dismiss. See also Stuart v. AR Resources, 2011 WL 904167, *3 (E.D.Pa.2011) (allegation of repeated calls and that defendants “ ‘would continue calling her, despite her request to stop calling,’ “ was sufficient to satisfy Igbal and Twombly ); ShandPistilli v. Professional Account Services, 2010 WL 2978029, *5 (E.D.Pa.2010) (rejecting Twombly motion, noting allegations of “continuous calls” and that plaintiff “asked defendant to stop contacting her but defendant refused to do so,” and finding “[t]he law is clear that under such circumstances I may infer that the calls were made with the intent to harass or annoy”).