District Court (Mo.) Denies MSJ in TCPA/FDCPA Case; Says Plaintiff’s Opposition Stating that He Did Not Know if He Signed the Form Defendant Put Into Evidence Was Sufficient to Create Triable Issue of Fact

In Buchholz v. Valarity, LLC, 2014 WL 2882504 (E.D.Mo. 2014), Judge Adelman denied summary judgment to the parties in a TCPA/FDCPA telephonic harassment case. The District Court found that Plaintiff’s allegation that he did not know whether he provided his cellular telephone number to the Defendant was sufficient to defeat summary judgment.

Defendant first argues that no genuine issue of material fact exists with regard to Plaintiff’s TCPA claim because Plaintiff gave prior, express consent allowing contact via his cell phone. Defendant contends that Plaintiff signed and dated a “Consent for Physician Services” form indicating consent to Mercy and collection agencies to contact him about his account using cell phone numbers provided by Plaintiff. (Def.’s SUMF Ex. C, ECF No. 30–3) Plaintiff, on the other hand, claims that he is entitled to judgment as a matter of law on his claim that Defendant violated the TCPA by placing over 200 calls to Plaintiff’s cell phone. Plaintiff asserts that he does not know if he signed the consent document. (Pl.’s Statement of Genuine Issues ¶ 13, ECF No. 43) Further, Plaintiff argues that both Defendant and Mercy are unable to produce any document indicating that Plaintiff provided his cell phone number to either entity. (Pl.’s SUMF ¶ 20, 22, ECF No. 46) ¶  The pertinent provision of the TCPA makes it unlawful for any person within the United States:  “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice—to any telephone number assigned to a … cellular telephone service … or any service for which the called party is charged for the call[.]”  47 U.S.C. § 227(b)(1)(A)(iii). Here, both parties have submitted affidavits and deposition excerpts in support of their opposing positions. After thorough review of the parties’ briefs and the exhibits attached thereto, the undersigned finds that whether Plaintiff provided Mercy with his cell number is an issue of material fact which precludes summary judgment on the TCPA claim. See  Moore v. CCB Credit Servs., Inc., No. 4:11CV2132 RWS, 2013 WL 211048, at *6 (E.D.Mo. Jan. 18, 2013) (denying summary judgment on the factual issue of whether the plaintiff provided the creditor with her cell phone number, which creditor in turn provided to a third-party collector). As a result, the Court will deny both the Defendant’s Motion for Summary Judgment and the Plaintiff’s Motion for Summary Judgment.

The District Court found that summary judgment should be denied on Plaintiff’s harassment claim under the FDCPA too.

Here, the Plaintiff alleges that Defendant placed 233 calls to Plaintiff’s cell phone between November 30, 2011 and March 11, 2013 and three times a day on several occasions.FN1 (Pl.’s SUMF ¶¶ 14, 27–29, ECF No. 46) In addition, Defendant called Plaintiff 210 times after March 6, 2012, the second time he told Defendant to stop calling him. ( Id. at ¶ 36) The Court finds that, based on Plaintiff’s allegations in this case, summary judgment is not appropriate, and a jury should determine whether Defendant’s conduct violated the FDCPA. Therefore, the undersigned will deny both parties’ motions for summary judgment on Plaintiff’s FDCPA claim.