Order Granting Motion for Summary Judgment
Thе Plaintiff sued the Defendants for alleged violations of the Fair Debt Collections Act (“FDCPA”), 15 U.S.C. § 1692 et seq., the Florida Consumer Collection Practices ' Act (“FCCPA”), Fla. Stat. § 569.55 et seq.,' and the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. This matter is now before the Court on the Defendants’ Motion for Summary Judgment (ECF No. 60) and Motions to Supplement their Rule 11 Motion (ECF Nos. 65, 77). Also pending is the Plaintiffs Motion to Voluntarily Dismiss Without Prejudice (ECF No. 85), For the following reasons, the Plaintiffs motion to dismiss is denied, the' Defendants’ motions to' supplement are denied, and the Defendants’ motion for summary judgment is granted.
1. Background
On December 23 2014, the Plaintiff received two calls from Defendant Allied Interstate LLC (“Allied”). Allied was seeking to collect on an alleged debt that “Stephanie Martin” owed eBay Inc. (“eBay”). The Plaintiff, however, asserts that she has never had an eBay account or transacted any business with eBay. The Plaintiff claims that the eBay account. must have been opened fraudulently.
On December 24, 2014, the Plaintiff faxed Allied a cease and desist letter through the online fax company FaxZero. The letter stated that the Plaintiff did not owe a debt and requested that Allied stop calling her cell phone. Although the Plaintiff received an email receipt from FaxZe-ro stating , that her. fax was sent and re-ceiyed by Allied, FaxZero currently, has no record of the fax and Allied’s corporate representative and Vice President of Operations, Jonathan Juarez, claims that it was never received. Juarez, however, is unsure of how faxes to the company are received and recorded. Between December 26, 2014 and January 12, 2015, Allied called the Plaintiffs cell phone fifteen times. Most of the calls went unanswered, but the Plaintiff states that she answered at least one call and “heard an auto dialer.” (ECF No. 60-2, Martin Dep. 86:9-14.)
On January 12, 2015, the Plaintiff faxed another cease and desist letter. The letter informed Allied that the Plaintiff had retained an attorney to pursue TCPA and FDCPA violations and requested that Allied contact her within seventy-two hours to settle the matter. The Plаintiff received a receipt from FaxZero that the fax was sent and received. The Plaintiff also completed a form on Allied’s website containing the same information. The same day, the Plaintiff received an email from advocacy.group@allied-interstate.com confirming the receipt of her complaint. Although the email was from an Allied email address, the email was signed by an employee from Defendant iQor Holdings US, Inc. (“iQor”) and also included the email address Advocacy.Group@iQor.com.
On January 13, 2015, Allied placed another .call to the Plaintiff. On January 15, 2015, the Plaintiff received an email from Brendan Lee, the Vice President of iQor’s legаl department claiming that Allied had never received the Plaintiffs December 24, 2014 fax and that Allied was ceasing all collection efforts regarding the eBay debt. The Defendants further assert that Allied sent the Plaintiff a debt verification letter
On May 29, 2015, the Plaintiff sued the Defendants for violations of the FDCPA, FCCPA, and TOPA. (ECF No. 1.) On January 11, 2016, the Defendants filed their motion for summary judgment and motion for sanctions for filing a frivolous suit. (ECF Nos. 58, 60.) To the motion, the Defendants attached records obtained from eBay which they claim provides “incontrovertible proof ... that Plaintiff Stephanie Martin was not telling the truth when she averred that the eBay aсcount was not hers.” (See ECF No. 60 at 1.) After their original Rule 11 motion, the Defendants filed two motions to supplement, which included additional “incontrovertible evidence.” (ECF Nos. 65, 77.)
On March 9, 2016, the Plaintiffs attorney moved to withdraw. (ECF No. 79.) The Court granted the motion and gave the Plaintiff until April 22, 2016 to obtain new counsel. (ECF No. 81.) The Plaintiff elected to proceed pro se and moved to voluntarily dismiss the case without prejudice “so it c[ould] be filed again as a class action.” (ECF No. 85.)
2. The Plaintiffs Motion to Dismiss
Under Federal Rule of Civil Procedure 41(a)(2), a plaintiff who wishes to voluntarily dismiss a case after the defendant has filed an answer or motion for summary judgment must seek leave from the district court. “[A] plaintiff may ask the court to dismiss an action at any time.” Anago Franchising, Inc. v. Shaz, LLC,
The purpose of Rule 41(a)(2) “is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.” Id. (quoting McCants v. Ford Motor Co., Inc.,
Here, the Plaintiff seeks to dismiss this case so that she may refile it as a class action. In July 2015, as part of the parties’ joint scheduling report, the Plaintiff agreed that additional parties would need to be added to the action and failed to join any additional parties or pursue a class action before the deadlines set out in the Court’s scheduling order. (ECF Nos. 8, 11.) Furthermore, this litigation has been going on for over a year, with extensive discovery, multiple hearings before a magistrate judge, and a fully-briefed motion for summary judgment. The Dеfendants have expended considerable time and expense litigating this case. See Stephens,
Therefore, although the Court notes that this is a close case, after considering Rule 41(a)(2) and the relevant case law, only a dismissal with prejudice would be appropriate at this juncture. Accordingly, the Court denies the Plaintiffs motion.
3. The Defendants’ Motion for Summary Judgment
The Defendants argue that they are entitled to summary judgment because the “incontrovertible” eBay evidence establishes that the Plaintiff owes the alleged debt and the evidence fails to support any violations of the FDCPA, the FCCPA, or the TCPA. (ECF No. 60 at 1-2.)
a. Legal Standard
Under Fedеral Rule of Civil Procedure 56, “summary judgment is appropriate where there ‘is no genuine issue as to any material fact’ and the moving party is ‘entitled to a judgment as a matter of law.’ ” See Alabama v. N. Carolina,
“[Ojnce the moving party has met its burden of showing a basis for the motion, the nonmoving party is required to ‘go beyond the pleadings’ and present competent evidence designating ‘specific facts showing that there is a genuine issue for trial.’” United States v. $183,791.00,
b. The eBay Evidence
As previously mentioned, the Defendants relied heavily on documents from eBay in their motion for summary judgment. These documents provide informa
Federal Rule of Civil Procedure 56(e) requires that “affidavits” and documents that support or oppose a motion for summary judgment “shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence.” Therefore, “[t]he general rule is that inadmissible hearsay ‘cannot be considered on a motion for summary judgment.’ ” Macuba v. Deboer,
Similarly, a court may consider unauthenticated evidence on a motion for summary judgment if the evidence is unchallenged or “where it finds that those records cоuld be reduced to admissible evidence at trial.” Mims v. Old Line Life Ins. Co. of America,
Hearsay “is a statement, other than one made.by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” “Hearsay is inadmissible unless the statement is not hearsay as provided by Rule 801(d), or falls into one of the hearsay exceptions enumerated in Rules 803, 804, and 807.” United States v. Baker,
Here, it is clear that the eBay documents are hearsay—they were created by eBay and are being used by the Defendants to establish the truth of the matter asserted, namely that the Plaintiff is the individual who created the account, as well as detailing how the account was used. See Fed. R. Evid. 801(c) (defining hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). Although the Federal Rules of Evidence recognize an exception to the hearsay rule for records of regularly conducted activity, the Defendants have offered no explanation on how they could or would satisfy this, or any other, hearsay exception at trial. For example, the Defendants chose not to depose a corporate representative of eBay or submit an affidavit or declaration by an eBay employee authenticating the documents. See Jones v. UPS Ground Freight,
c. The FDCPA Claims
Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt colleсtion abuses.” 15 U.S.C. § 1692(e). Because the FDCPA is a remedial statute, its provisions must be liberally construed in favor of the consumer debtor. See Mammen v. Bronson & Migliaccio, LLP,
The Defendants argue that the Plaintiff has provided no evidence that she owes a “debt” under the FDCPA. The existence of a “debt” is a threshold requirement for the statute’s applicability. See Hawthorne v. Mac Adjustment, Inc.,
The Defendants argue that there was no “transaction” within the meaning of the statute because the sale of the iPad which resulted in the charges by eBay creating the alleged debt never actually went through. The “Stephanie Martin” on eBay never sent the iPad to the buyer. First, this argument looks to the wrong “transaction”—rather than focusing on the seller-buyer relationship, the Defendants should look to the relationship between the seller and eBay. ,
In Oppenheim v. I.C. Sys., Inc.,
-In reviewing whether a “transaction” occurred within the meaning of the FDCPA, the Eleventh Circuit “recognized the broad scope of ‘debt’ in the FDCPA,” and stating that “ ‘[a]s long as the transaction creates an obligation to pay, a debt is created.’” Id. at 837 (quoting Brown v. Budget Rent-A-Car Sys. Inc.,
Based on the Court’s reasoning in Op-penheim, and taking all reasonable inferences in favor of the Plaintiff, there is evidence that a “transaction” occurred in this case. “Stephanie Martin” created an eBay account and contracted to use eBay’s services. She then attempted to sell an item through the account; although the sale did not go through, it resulted in charges from eBay.
Even if a “transaction” does exists, a plaintiff must still show that the transaction was “primarily for personal, family, or household purposes” because the FDCPA only protects consumer debt rather than commercial or business debt. Oppenheim,
In order to understand these arguments and the evidence required to establish that a transaction was “primarily for personal, family, or household purposes,” it is helpful to examine the main case cited by the Defendants. In Evenson v. Palisades Collection, LLC, No. 2:13-cv-1226,
The Evenson court’s decision and the Defendants’ argument appears to rely on a line of cases that have held that a court should look to the “intended use” or “purpose” behind incurring the debt in order to determine whether the debt was for personal, family, or household purposes. See, e.g., Horton v. Trans Union, LLC, No. 12-2072,
“By its plain text, the FDCPA encompasses claims brought by individuals subjected to collection efforts for obligations they are falsely alleged to have owed.” Davis v. Midland Funding, LLC,
The Court, however, also declines to adopt the Plaintiffs interpretation of the statute. Citing cases which discuss the definition of “consumer,” the Plaintiff argues that she has established a “debt” under the FDCPA. (ECF No. 67 at 7-8); see also Davis,
To resolve the tension bеtween the definition of “debt” and who the FDCPA is meant to protect, the Court returns to the line of cases which state that a court should examine the purpose or intent behind entering into the transaction. Importantly, these cases do not state that intent is the only factor to consider. While it is the “primary focus,” these cases actually state that determining whether a transaction is primarily for personal, fami
Therefore, while a plaintiffs assertion of identity theft or mistaken identity alone is not sufficient to establish a “debt,” it is a factor to be considered. See Boosahda v. Providence Dane LLC,
The Court recognizes that under this approach a victim of identity theft or mistaken identity may still be unable to meet the evidentiary burden; the Court, however, cannot act as the legislature. This approach is not only consistent with the plain meaning of the FDCPA and the cases holding that the court should look at the transaction as a whole, but also with other cases that have considered an identity theft victim’s claims on motions for summary judgment. See Horton,
Now that the Court has determined the standard that should be applied, the Court turns to the evidence in this case. Although the Plaintiff has stated that the eBay account is not hers, she has cited no evidence on the record showing that the account or debt is consumer in nature. She has not provided eBay’s user agreement or shown that it was a personal rather than business account. In fact, the Plaintiff objected to and forced the Court to exclude any documentation about the eBay account from this Order. Although information may exist in the record creating an issue of material fact on whether this was a consumer transaction, it is not the Court’s responsibility to scour the record in order to find such information. See 2025 Emery Highway, LLC v. Bibb Cnty.,
Moreover, even if the Court were to conclude that the FDCPA applies in this case, the Defendants would still be entitled to summary judgment on the majority of the Plaintiffs claims. Nineteen calls over a month, the majority of which went unanswered, withоut more—for example who was the target of the call or derogatory language used during the call—is insufficient to sustain a claim for harassment under section 1692d of the FDCPA. See, e.g., Arianas v. LVNV Funding LLC,
d. The FCCPA Claims
The FCCPA defines “debt” in the same manner as the FDCPA. Fla. Stat. § '559.55(1); see also Oppenheim,
e. The TCPA Claims
The TCPA makes it unlawful to call, other than for emergency purposes or with prior consent, any cell phone using an automatic telephone dialing system (“ATDS”) or prerecorded voice. 47 U.S.C. § 227(b)(l)(A)(iii). Thus, to make a claim under the TCPA, a plaintiff must show that “(1) a call was made to a cell or wireless phone, (2) by the use of any automatic dialing system or an artificial or prerecorded voice, and (3) without prior express consent of the called party.” Augustin v. Santander Consumer USA, Inc.,
Juarez testified that Allied does not use auto dialers and that all calls are dialed manually. (ECF No. 60-7, Juarez Dep. 43:15-25). The Plaintiff, however, alleges that Allied violated the TCPA because when she picked up one of the calls, she “heard an auto dialer.” (ECF No. 60-2, Martin Dep. 86:9-14.) Courts have routinely rejected similar claims by plaintiffs who try to maintain a TCPA claim on the belief that an ATDS was used based on “clicks,” “delays,” or “dead air” on the other end of the line. See Norman v. AllianceOne Receivables Mgmt., Inc.,
4. The Defendants’ Motions to Supplement
The Defendants have moved for Rule 11 Sanctiоns for pursuit of a frivolous claim. (ECF No. 58.) The Defendants allege that the Plaintiff is truly the individual who opened and used the eBay account, and that the Plaintiff and her attorneys were aware of this fact during the litigation, but refused to dismiss the case. (ECF No. 58 at 1.) As previously discussed, after filing the original motion, the Defendants filed two motions to supplement containing additional evidence. (ECF Nos. 65, 77).
Although the Defendants complied with Rule 11’s safe harbor provision when filing their original motion, they failed to comply when submitting their supplemental evidence. See Fed. R. Civ. P. 11(c)(2) (“A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets.”). “The purpose of the safe harbor provision is to allow the party against whom sanctions are' sought to withdraw the challenged document(s).” Mirabilis Ventures, Inc. v. Palaxar Grp., LLC, No. 07-cv-1788,
Therefore, the Court will deny the motions to supplement for failing to comply with the procedural requirements of Rule 11. See Mirdbilis Ventures, Inc.,
5. Conclusion
Because the Plaintiff has not presented evidence sufficient to establish that there is a “debt” under the FDCPA or FCCPA and only presents a conclusory belief that Allied used an ATDS device under the TCPA, the Court grants the Defendants’ motion for summary judgment (ECF No. 60). Further, the Court denies the Plaintiffs motion to voluntarily dismiss (ECF No. 85) and denies the Defendants’ motions to supplement (ECF Nos. 65, 77).
Done and Ordered, at Miami, Florida, on June 16, 2016.
Notes
. The Court notes, however, that even if it was to consider these documents in relation to the Defendants’- argument that the Plaintiff was the individual who opened the account and incurred the debt, , the documents do not provide the "incontrovertible proof” that the Defendants assert. The -Plaintiff has testified that she never opened the account or participated in the transactions, which is sufficient to create a dispute of material fact on this issue.
. In her opposition, the Plaintiff attacks the veracity of the letter and informed the Court that she was seeking the metadata showing when the letter was created. On June 3, 2016, Magistrate Judge Alicia M. Otazo-Reyes held a hearing on the Plaintiff’s Motion for Contempt, which argued that the Defendants’ productions regarding the metadata were insufficient. The Plaintiff failed to appear at the hearing and Judge Otazo-Reyez, after reviewing the discovery, found the Defendants’ productions to be sufficient. (ECF Nos. 90-91.) Therefore, the Plaintiff can no longer rely on her unsupported and conclusory allegation that the verification letter was somehow falsified.