District Court (N.H.) Says Call Pattern and Volume Were Insufficient to Constitute FDCPA Harassment Claim

The evidence in the record shows that Carrington called Wenzel’s cell phone seven times between July 28 and October 11, 2016, and never more than once on a single day. There is no evidence that Wenzel ever answered any of these calls or told Carrington to stop calling. . . . Even viewing the facts in the light most favorable to plaintiffs, there is no evidence in the record from which a reasonable jury could infer that Carrington made the calls with the intent to abuse, annoy, or harass Wenzel. See Carman v. CBE Grp., Inc., 782 F. Supp. 2d 1223, 1232 (D. Kan. 2011) (granting summary judgment on § 1692d(5) claim where defendant called plaintiff 149 times over two months but never “at odd or unreasonable hours” and never “on the same day within two hours of each other”); Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1229 (E.D. Cal. 2010) (granting summary judgment on § 1692d(5) claim where defendant called plaintiff 18 times because plaintiff “presents no evidence that [defendant] called her immediately after she hung up, called multiple times in a single day, called her place of employment, family, or friends, called at odd hours, or called after she requested [defendant] to cease calling”); Tucker v. CBE Grp., Inc., 710 F. Supp. 2d 1301, 1305 (M.D. Fla. 2010) (granting summary judgment on § 1692d(5) claim where defendant called plaintiff 57 times because there was no evidence in the record that defendant spoke to plaintiff or that defendant made the calls with the intent to harass plaintiff, rather than simply reach her). Wenzel’s opinion about the nature of the calls is not evidence of Carrington’s intent. See, e.g., Pugliese v. Prof. Recovery Serv., Inc., No. 09-12262, 2010 WL 2632562, at *9-10 (E.D. Mich. June 29, 2010) (granting summary judgment on plaintiff’s § 1692d(5) claim and noting that although plaintiffs may have been annoyed with defendant’s calls, there was no evidence that defendant made the calls with the intent to abuse or harass plaintiffs). Therefore, defendants are entitled to summary judgment on Count V.