Stephen Hill v. Homeward Residential, Inc.
799 F.3d 544
| 6th Cir. | 2015Background
- Stephen Hill provided his cellphone number to his mortgage servicer (Homeward) in various communications and loan-modification/assistance forms and instructed Homeward to call his cell about his mortgage.
- Homeward placed numerous calls to Hill’s cellphone while he was in default; Hill alleges 482 calls between 2009 and 2013, 176 of which involved a device capable of autodialing.
- Hill sued under the Telephone Consumer Protection Act (TCPA), alleging Homeward used an automatic telephone dialing system (ATDS) and prerecorded messages to call his cellphone without prior express consent.
- The district court denied both parties’ summary-judgment motions, identifying factual disputes (whether an ATDS was used and whether Hill provided the number to Homeward in connection with the debt), quashed Hill’s deficient subpoenas for a Homeward corporate representative, and a jury returned a verdict for Homeward.
- On appeal Hill argued (1) the summary-judgment denial was erroneous, (2) the jury instruction on "prior express consent" was too broad, and (3) the court abused discretion in quashing subpoenas and denying his motions to compel. The Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate review may consider denial of Hill’s pretrial summary-judgment motion after a full trial | Hill contends the summary-judgment record establishes liability | Homeward argues the case was tried; summary denial is interlocutory and not appealable after final judgment | Court held Hill cannot appeal the summary-judgment denial after a full trial; lacked jurisdiction to review that pretrial order |
| Whether giving a creditor a cellphone number in connection with a debt constitutes "prior express consent" under the TCPA | Hill argued consent must have been given at the initial transaction creating the debt and thus he did not consent to calls made later | Homeward argued that providing the number "in connection with an existing debt" constitutes prior express consent to be called about that debt, including by autodialer | Court held the FCC’s interpretation controls: numbers given in connection with an existing debt constitute prior express consent to calls about that debt, including automated calls |
| Adequacy of jury instruction defining "prior express consent" | Hill argued the instruction was overbroad because it omitted limiting language about the timing (initial transaction) | Homeward argued instruction mirrored FCC guidance permitting calls to numbers provided in connection with the debt | Court held the instruction accurately stated FCC-derived law and was not confusing or misleading |
| Whether the district court abused discretion by quashing subpoenas and denying trial deposition/compel requests | Hill argued the court should temper technical subpoena rules and compel a Homeward witness for trial | Homeward argued Hill’s subpoenas violated Rule 45 and discovery was closed; no proper procedure supported a trial deposition or last-minute compulsion | Court held no abuse of discretion: subpoenas were defective, Rule 30(b)(6) does not permit trial depositions, and motion to compel was untimely and procedurally unsupported |
Key Cases Cited
- Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012) (TCPA restricts automated calls and provides private right of action)
- Ortiz v. Jordan, 562 U.S. 180 (2011) (denial of summary judgment before trial is interlocutory and not appealable after final judgment)
- Jarrett v. Epperly, 896 F.2d 1013 (6th Cir. 1990) (procedural appellate principles regarding interlocutory orders)
- United States v. Kuehne, 547 F.3d 667 (6th Cir. 2008) (standard for reviewing jury instructions for abuse of discretion)
- Maxwell v. Dodd, 662 F.3d 418 (6th Cir. 2011) (procedures for Rule 50 motions and post-trial challenges)
- Nolfi v. Ohio Kentucky Oil Corp., 675 F.3d 538 (6th Cir. 2012) (limits on reviewing pretrial orders after jury verdict)
- Page Plus of Atlanta, Inc. v. Owl Wireless, LLC, 733 F.3d 658 (6th Cir. 2013) (appellate jurisdiction considerations)
- Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (6th Cir. 2015) (context on TCPA’s restrictions)
- Nigro v. Mercantile Adjustment Bureau, LLC, 769 F.3d 804 (2d Cir. 2014) (interpreting FCC language that number must be provided in connection with the debt)
- Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir. 2014) (debtor’s number provided after incurrence of debt can still constitute consent)