John Daubert v. NRA Group LLC
2017 U.S. App. LEXIS 11802
| 3rd Cir. | 2017Background
- Daubert received medical treatment; insurer paid part of the $46 radiology bill; $25 remained unpaid. MBMS and then debt collector NRA Group received his account and cell number. NRA sent a collection envelope (with a visible barcode that encodes the account number) and placed 69 calls to Daubert’s cellphone. Daubert answered once.
- Daubert sued under the FDCPA (envelope contents) and later added a TCPA claim (automated calls). NRA asserted bona fide error defense for the FDCPA claim and prior express consent for the TCPA claim.
- NRA designated Anita Schaar as its Fed. R. Civ. P. 30(b)(6) witness; she testified the Mercury Dialer placed calls automatically after a campaign was set. NRA later submitted an affidavit from Charlene Sarver contradicting that testimony (claiming a human must press a key to trigger calls).
- The district court granted summary judgment for Daubert on the TCPA claim, excluding Sarver’s affidavit under the sham-affidavit doctrine, and awarded statutory TCPA damages. The court denied summary judgment on FDCPA but at trial granted judgment as a matter of law for NRA, finding a bona fide error.
- On appeal, the Third Circuit affirmed summary judgment on the TCPA claim (no prior express consent) and reversed the judgment as a matter of law on the FDCPA claim, holding Jerman bars the bona fide error defense where the asserted error was a mistake of law based on nonbinding district-court authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Daubert gave "prior express consent" under the TCPA for autodialed calls | No consent; gave number to hospital only; no evidence he authorized creditor calls | NRA: number provision (via hospital) and billing practices show consent | Held: No reasonable jury could find prior express consent; summary judgment for Daubert affirmed |
| Whether the district court properly excluded Sarver’s affidavit under the sham-affidavit doctrine | N/A (plaintiff relied on 30(b)(6) testimony) | NRA: Sarver’s affidavit creates a genuine dispute about whether calls were autodialed | Held: District court did not abuse discretion excluding the affidavit; Schaar’s deposition stood |
| Whether use of the barcode on envelope violates FDCPA §1692f(8) and NRA’s liability | Daubert: barcode violated §1692f(8) (privacy/debtor-status disclosure) | NRA: relied on district-court decisions holding barcodes lawful; bona fide error defense applies | Held: District court found barcode violated FDCPA (unchallenged); bona fide error does not apply when error is mistake of law based on nonbinding precedent |
| Whether a debt collector can invoke the FDCPA bona fide error defense when relying on persuasive district-court authority | N/A | NRA: Good-faith reliance on persuasive district-court rulings is a bona fide error | Held: Jerman controls — mistakes of law are not protected; reliance on nonbinding district-court decisions is insufficient; judgment for Daubert on FDCPA reversed and remanded for damages calculation |
Key Cases Cited
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573 (Sup. Ct.) (bona fide error defense does not cover mistakes of law)
- Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (Sup. Ct.) (TCPA jurisdictional and statutory framework)
- Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir.) (FDCPA §1692f(8) protects against disclosure of bare account numbers; Court had reserved barcode question)
- Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir.) (FCC rulings: providing number to intermediary can evidence prior express consent)
- Baisden v. Credit Adjustments, Inc., 813 F.3d 338 (6th Cir.) (hospital admittance forms can show prior express consent under FCC guidance)
- Celotex Corp. v. Catrett, 477 U.S. 317 (Sup. Ct.) (summary-judgment burden-shifting principles)