In Chavious v. CBE Group, Inc., 2012 WL 113509 (E.D.N.Y. 2011), Judge Seybert granted summary judgment in a call-volume/FDCPA harassment case, finding that the call volume was not excessive in light of Plaintiff’s failure to answer the telephone or to tell the collector to stop calling.
Plaintiff has not established a triable issue of fact in this case. Courts have awarded defendants summary judgment where the volume and pattern of calls demonstrates an intent to contact debtors rather than an intent to annoy, abuse, or harass them. See Carman v. CBE Group, Inc., 782 F.Supp.2d 1223, 1232 (D.Kan.2011) (“[T]he evidence suggests an intent by CBE to establish contact with plaintiff, rather than an intent to harass.”); Tucker v. CBE Group, Inc., 710 F.Supp.2d 1301, 1305 (M.D.Fla.2010). In these cases, as here, the caller was unable to reach anyone on the other end of the phone or the call recipient did not ask the defendant to refrain from calling. Carman, 782 F.Supp.2d at 1232; Tucker, 710 F.Supp.2d at 1305. In the Court’s view, the volume and pattern of calls in this case—thirty-six calls over approximately two months, all made at reasonable times and not one immediately following another—is consistent with cases in which other courts have awarded defendants summary judgment on Section 1692d(5) claims. See, e.g., Lynch, 2011 WL 2472588, at *2 (fifty-six calls over approximately three months, without more, was not an FDCPA violation); Carman, 782 F.Supp.2d at 1227 (149 calls over two months, without more, was not a violation); Clingaman v. Certegy Payment Re-covery Svcs., No. 10–2483, 2011 WL 2078629, at *4 (S.D.Tex. May 26, 2011) (fifty-five calls between March 4 and June 18 was not a violation where plain-tiff never asked defendant to stop calling); Jones v. Rash Curtis & Assocs., No. 10–CV–0225, 2011 WL 2050195, at *2–3 (N.D.Cal. Jan. 3, 2011) (179 calls was not a violation where, among other things, plain-tiff did not ask defendant to stop calling). ¶ Some, although not all, of the cases on which Plaintiff relies involve situations where plaintiffs asked defendants not to continue calling. For example, in Meadows v. Franklin Collection Service, Inc., 414 Fed. Appx. 230, 233–34 (11th Cir.2011), to which Plaintiff cites extensively, the Eleventh Circuit reversed a district court’s grant of summary judgment to a defendant. The Eleventh Circuit explained: “Franklin, moreover, continued to call Meadows until March 2009 despite being informed in May 2006 that the debts were not her own and that the debtors did not live with her…. Considering the volume and frequency of the calls, Meadows’s testimony that she informed Franklin of its mistake in May 2006, and Meadows’s testimony regarding the emotional stress caused by the calls, we find that there is a genuine issue of material fact as to whether Franklin caused Meadows’s telephone to ring with the intent to annoy or harass her.” Id. (emphasis added). Similarly, in Williams–Platt v. Bureau of Collection Recovery, Inc., to which Plaintiff also cites, a district court concluded that from “the number of calls Defendant made to Plain-tiff, along with Plaintiff’s contention in her affidavit that she asked to be removed from Defendant’s call list, a jury could reasonably find that Defendant placed the calls with the intent to annoy, abuse, or harass.” No. 09–CV–3609, 2011 WL 2633821, at *3 (D.Minn. June 15, 2011) (emphasis added). ¶ In awarding Defendant summary judgment, the Court agrees with Defendant that whether it was able to reach Plaintiff and whether Plaintiff asked Defendant to stop calling is relevant to whether Defendant intended to annoy, abuse, or harass. Analyzing Plaintiff’s claims this way does not, as Plaintiff argues, improperly impose an affirmative burden on plaintiffs in Section 1692d(5) cases to show that they asked defendants to stop calling. Rather, the Court’s logic simply recognizes that an inference of intent to annoy, abuse, or harass is much more readily drawn against a defendant who repeatedly calls someone after being asked to stop. Many Section 1692d(5) cases reflect this rationale. See, e.g., Clingaman, 2011 WL 2078629, at *4; Jones, 2011 WL 2050195, at * 3 (awarding defendant summary judgment where “[t]here is no genuine issue of fact that Plaintiff asked the collectors to stop calling, or asked them to refrain from calling at all or specifically at work, or complained about the number of calls received”); see also Prewitt v. Wolpoff & Abramson, LLP, No. 05–CV–0725, 2007 WL 841778, at *3 (W.D.N.Y. Mar. 19, 2007) (denying defendant summary judgment where it continued to call plaintiff after plaintiff had said he could not pay the debt due to financial constraints). In this case, the Court also thinks it significant that Defendant ceased calling Plaintiff, despite an inability to reach him, on its own initiative after only two months.