In Buchholz v. Valarity, LLC, 2014 WL 5849434 (E.D.Mo. 2014), Judge Adelman clarified his previous ruling on the parties’ summary judgment motions, finding that a TCPA plaintiff can orally revoke consent.
This case stems from Defendant’s use of an automatic telephone dialing system (“ATDS”) to repeatedly call Plaintiff’s cell phone in an attempt to collect a $354 debt Plaintiff owed to Mercy Clinic Family Medicine Branson West (“Mercy”) for healthcare services provided by Dr. Paul Geiger, a physician associated with Mercy. (D.’s Statement of Uncontroverted Material Facts, (ECF No. 30 ¶ ¶ 5, 19, 22); (D.’s Response to Plaintiff’s Request for Admission No. 10, (ECF No. 46–6.) Plaintiff was seen by Dr. Geiger on several occasions between November 30, 2010 and April 10, 2012. (ECF No. 46–5.) Pursuant to an agreement with Defendant, Mercy assigns delinquent accounts to Defendant for the purpose of debt collection. (ECF No. 30–2 at 11.). Mercy placed Plaintiff’s debt with Defendant for collection and sent Defendant an Electronic Data Placement file containing Plaintiff’s past due accounts and Plaintiff’s cell phone number. (D’s SUMF ¶ ¶ 18–21); (ECF No. 46–4 p. 83 ll. 6–9.) Defendant placed the disputed calls to Plaintiff’s cell phone number in an attempt to collect a balance associated with Plaintiff’s visits to Dr. Geiger, on October 12, 2011 and April 10, 2012. (D.’s Response to Plaintiff’s Request for Admission Nos. 2, ¶ 9; (ECF No. 46–6.) None of the calls Defendant placed to Plaintiff were for “emergency purposes” within the meaning of 47 U.S.C § 227(b)(1)(A). (ECF No. 9 at ¶ 31.) Defendant asserts that it obtained Plaintiff’s cell phone number in connection with intake information, including a “Consent for Physician Services” form (“Consent Form”). Mercy requests when a patient first presents for treatment. D’s SUMF at IT 8. It is undisputed, however, that Plaintiff’s cell phone number does not appear on the Consent Form.FN2 To date, neither Mercy nor Defendant has produced any document showing that Plaintiff provided his cell phone number to either Mercy or to Defendant, (ECF No. 43–2 p. 8 ll. 1–11; p. 26 ll. 3–12); (ECF No. 46–4 p. 78 ll. 16–21; p. 82 ll. 11–14); (ECF No. 46–8), and the exact manner in which Mercy obtained Plaintiff’s telephone number is unknown.
The District Court bound Plaintiff to his previous discovery admissions:
On July 31, 2013, Defendant served its First Requests for Admission on Plaintiff. Request No. 2 asked Plaintiff to “[a]dmit you signed the [Consent for Physician Services form].” On September 3, 2013, Plaintiff served his response stating, “[a]dmitted.” Thereafter, when Plaintiff was asked during his October 21, 2013 deposition whether he had signed the Consent Form, Plaintiff responded “I believe that’s my signature;” “it looks like [my signature.]; “[m]y signature varies depending on how stiff my fingers are;” and “[i]t may not be mine.” (Buchholz Dep., ECF No. 94–3, p. 51–52.) On March 28, 2014, Plaintiff also moved summary judgment motion on Count I, the TCPA claim, asserting that the undisputed record establishes that Defendant used an automated telephone dialing system to place 233 calls to Plaintiff, 221 of which were made after Plaintiff revoked his consent to be contacted by instructing Defendant to stop calling him and therefore that Defendant violated the TCPA. (ECF No. 45.) Plaintiff also asserts that he is entitled to partial summary judgment on Count II, the FDCPA claim, because Defendant has offered no evidence establishing that he consented to contact in connection with this particular debt. In the alternative, Plaintiff argued that even if he had consented to receive such calls, Defendant’s conduct in calling him 221 times after he had asked Defendant to stop calling him was, as a matter of law, harassing, and oppressive conduct. See 15 U.S.C § 1692. In addition, on March 28, 2014, the same day that that he moved for summary judgment, on the final day of the discovery period and nearly eight months after serving his original response, Plaintiff served Defendant with an Amended Response to Request for Admission No. 2, stating that he was “[u]nable to admit or deny” that he had signed the Consent Form. (ECF No. 41–4.) . . . For these reasons, the Court will grant Defendant’s motion to strike Plaintiff’s proposed Amended Response to Request for Admission No. 2 and Plaintiff’s original response admitting the authenticity of the signature on the Consent Form therefore stands.
But, the District Court found that a TCPA consumer could orally revoke consent:
Upon review of each of the aforementioned precedents, this Court is persuaded by the reasoning of the Third and Eleventh Circuits with respect to the availability of oral revocation and concludes that Plaintiff’s assertion that he orally revoked his consent to be contacted on his cell phone is cognizable as a matter of law under the TCPA. See Johnston v. USAA Fed. Sav. Bank, No. 12–CV–02486–LTB–KLM, 2014 WL 5439965, at *3–4 (D.Colo. Oct. 27, 2014) (holding that “the weight of authority suggests that consent may be revoked under the TCPA and that if messages continue after consent is revoked, those messages violate the TCPA”) (internal quotation omitted)). . . Assuming without deciding that these two assertions are correct the Court nevertheless concludes that Defendant’s motion for reconsideration should be denied. Regardless of the truth of those assertions, the Court’s determination that oral revocation is available as a matter of law under the TCPA requires it to further consider whether the facts before it establish oral revocation here. On the record before it the Court finds that whether Plaintiff effectively revoked his consent to be called when he told Defendant to “stop calling” remains a disputed fact. Compare (ECF No. 30, ¶¶ 32 ¶ 33); (ECF No. 58–12, ¶ 21) with ECF No. 46, ¶¶ 33 ¶ 35); (ECF No. 46–10 at 3.); see also Osorio, 746 F .3d at 1256 (concluding that the question of whether oral revocation occurred should “proceed to a jury” where the consumer contended he told the debt collector to “stop calling” but the debt collector denied that he had done so). Therefore, even if Plaintiff’s consent to be called is presumed, the dispute regarding revocation precludes the entry of summary judgment for Defendant on the TCPA claim. For this reason Defendant’s motion for reconsideration will be denied and the Court’s earlier ruling denying Defendant’s motion for summary judgment stands.