District Court (Mo.) Finds 65 Calls in 5 Months Not to be Harassment; Holds Matter over for Trial on Consent to Call Cell Phone under TCPA

In Moore v. CCB Credit Services, Inc., 2013 WL 211048 (E.D.Mo. 2013), Judge Sippel found no actionable FDCPA harassment, but held the matter over for trial on the issue of consent and charges for calls under the TCPA.  The District Court found that the number of calls did not amount to actionable harassment:

It is undisputed that CCB made 65 calls to Moore’s cell phone over a five month period between May 10, 2011 and September 30, 2011. Moore never answered any of these calls.  Moore never spoke to a CCB representative. Moore states that CCB never left her any rude or offensive messages. Moore did not return CCB’s calls because she assumed it was a debt collector and she did not have any money to pay them. When CCB placed calls to Moore she could see the calling number on her phone’s display screen.  Moore does not offer any evidence that CCB was causing her phone to ring repeatedly in an attempt to harass her or has engaged in any conduct the natural consequence of which is to harass, oppress, or abuse Moore

The District Court found a triable issue of fact as to Plaintiff’s TCPA claim, and held the matter over for bench trial:

CCB asserts that the evidence shows that Moore obtained her cell number in 2008 and that Laclede’s contemporaneous business records indicate that on August 24, 2009, Moore spoke to Laclede and her cell number was provided to Laclede on that date which establishes that Moore provided the number to La-clede. Laclede updated Moore’s phone number in the normal course of business on August 24, 2009 and provided that number to CCB in May 2011. CCB asserts that Moore’s equivocation in her 2012 deposi-tion that she could not recall any calls Laclede may have made to her juxtaposed to her blanket unequiv-ocal denial in her 2012 post-deposition affidavit would not lead a rational trier of fact to find for Moore. ¶ I find that the issue of whether Moore provided Laclede with her cell number is an issue of material fact which precludes summary judgment on Moore’s TCPA claim. ¶  I note that in her complaint, Moore asserts that the CCB violated the TCPA by placing calls to her cell phone causing Moore to be charged for the calls. Neither party has addressed whether Moore must prove that she incurred a charge to prevail on her TCPA claim. ¶ So two issues remain in this matter. First is the factual issue of whether Moore provided Laclede with her cell phone number. Second is the legal issue of whether Moore must show she was charged for the calls. ¶ Because this case is set for a bench trial, I propose that the parties can submit the case to me to resolve the first issue on the record. A trial on the record will promote judicial economy in this matter. The legal issue of whether Moore must show she was charged for the calls is an issue of law which I will resolve with supplemental briefs. If the parties consent to submitting Moore’s TCPA claim to me on the record I will allow them to supplement the record on the issue of consent.