In Dunning v. Portfolio Recovery Associates, LLC, — F.Supp.2d —-, 2012 WL 5463294 (S.D.Fla. 2012), Judge Demitrouleas denied summary judgment in an FDCPA call-volume case, not because of the volume of the calls but because of a factual question regarding whether they were received and, if so, their content.
The Court finds the parties’ dispute about the accuracy of Plaintiff’s call logs compared to the Comcast records to be a red herring in this case with regard to the volume of Defendant’s calls. The parties agree that Defendant called Plaintiff between 50 and 100 times in 2011, and not more than 20 times in 2012. See DSOMF at ¶ 1; PSOMF at ¶ 1. ¶ Plaintiff alleged in his amended complaint that since approximately June 2011, Defendant called Plaintiff up to four times per day, called Plaintiff from various numbers, and continued to call Plaintiff after Plaintiff asked Defendant to stop calling. The Court finds that, based upon the evidence presented in the record, there is a genuine issue of fact regarding whether anyone from Portfolio ever actually spoke to Plaintiff in connection with collecting his debts and, if so, over the substance of the communication. Plaintiff testified at his deposition that he spoke with Portfolio representatives over the telephone on nine or ten occasions. DSOMF at ¶ 7; PSOMF at ¶ 7; (Dunning Dep. 20:10–13; 21:10, 14–16; 25:9–11, 17). Plaintiff also testified at his deposition that, after Plaintiff requested that Defendant cease communication, Defendant placed more than eighteen phone calls to Plaintiff. (Dunning Dep. 35:18–22; Affidavit of Eddie Dunning at ¶ 9). Plaintiff testified at his deposition that, during a phone conversation, Defendant’s representative “got very rude” and “was, like, a sergeant to me.” (Dunning Dep. 21:22–23; 23:11–12). However, Defendant has no record of actually speaking with Plaintiff. DSOMF at ¶ 6; PSOMF at ¶ 6; (Privette Affidavit ¶ 3). ¶ . . . Defendant’s argument is misplaced, as it is di-rected at the call volume, and disregards the remainder of the Plaintiff’s contentions in this action that De-fendant engaged in harassment through the content of its calls to Plaintiff, and by continuing to call him multiple times after Plaintiff asked Defendant ten times to stop calling. Rather, the Court finds that Plaintiff has presented sufficient evidence to create a fact issue for the jury as to the harassing nature of Defendant’s calls. Defendant called Plaintiff between 50 and 100 times in 2011, and not more than 20 times in 2012. There are genuine issues of material facts regarding whether any representative of Defendant spoke to Plaintiff, what Defendant’s representatives said to Plaintiff, whether Plaintiff repeatedly requested that Defendant cease communication, and whether Defendant continued to call Plaintiff after Plaintiff repeatedly requested that Defendant cease calling him.