Stephen Hill v. Homeward Residential, Inc.Stephen Hill v. Homeward Residential, Inc.
Case Information
*1 Before: CLAY and McKEAGUE, Circuit Judges; BERTELSMAN, District Judge. [*] _________________
COUNSEL ARGUED: Troy J. Doucet, DOUCET & ASSOCIATES, CO., L.P.A., Dublin, Ohio, for Appellant. Kimberly Y. Smith Rivera, MCGLINCHEY STAFFORD, Cleveland, Ohio, for Appellee. ON BRIEF: Troy J. Doucet, DOUCET & ASSOCIATES, CO., L.P.A., Dublin, Ohio, for Appellant. Kimberly Y. Smith Rivera, MCGLINCHEY STAFFORD, Cleveland, Ohio, for Appellee.
McKEAGUE, J., delivered the opinion of the court in which CLAY, J., and BERTELSMAN, D.J., joined. CLAY, J. (pg. 11), delivered a separate concurring opinion. _________________
OPINION
_________________
McKEAGUE, Circuit Judge. The Telephone Consumer Protection Act prohibits companies from making automated calls to a person’s cellphone without that person’s prior express consent. We must primarily decide whether a person gives his “prior express consent” when he gives his creditor his cellphone number in connection with a debt he owes. In line with the agency in charge of enforcing the Act, we conclude that this constitutes “prior express consent” to be called on that number about the debt. Because the district court’s decision reflects that rule, and because the court did not commit any other error, we affirm.
I
Congress passed the Telephone Consumer Protection Act in response to “[v]oluminous
consumer complaints about abuses of telephone technology—for example, computerized calls
dispatched to private homes.”
Mims v. Arrow Fin. Servs., LLC
,
Stephen Hill claims he received well over a hundred of these prohibited phone calls from his creditor, Homeward Residential, Inc., in connection to a debt he owed. His story began in 2003 when he obtained a mortgage loan from Jordan West Companies. He provided his home and work numbers on that loan. Three years later, though, he cancelled his home phone and replaced it with a cellphone. After his loan transferred to Homeward, he contacted the company to advise it that his primary phone number had changed. Homeward then replaced Hill’s obsolete home number with his cellphone number in its records. Hill knew that this number would be used if Homeward needed to reach him about his mortgage.
Hill eventually fell behind on his mortgage, but Hill and Homeward worked out a loan modification so Hill could keep his home. Hill listed his cell phone number on that document. When he continued to fail to pay his mortgage payments on time, Homeward called him to collect its payments. In July 2010, Hill told Homeward not to call him at work anymore, instructing Homeward to call his cellphone instead. This left his cellphone number as the only number listed in his records with Homeward.
Hill’s loan modification failed, and he ultimately defaulted on his mortgage. After that, from May 2011 through January 2013, Hill filled out at least ten forms with Homeward to try to mitigate his losses. He provided his cellphone number on all these forms. See Appellee Br. 3–4 (listing the forms). He also provided express written consent for Homeward to call his cellphone. See, e.g. R. 19-3 (Uniform Borrower Assistance Form) at 30 (“I consent to being contacted concerning this request for mortgage assistance at any cellular or mobile telephone number I have provided[,] . . . includ[ing] . . . telephone calls to my cellular or mobile telephone.”). By doing so, Hill testified that he understood Homeward “would call me at that cell phone number.” R. 18-1 (Hill Depo.) at 49.
To collect from Hill and in other matters regarding his loan, Homeward called Hill on the number he provided: his cellphone. In all, Homeward called him an alleged 482 times from 2009 to 2013. One hundred seventy-six of these calls used Prairie, a device “capable of autodialing a phone number.” Appellee Br. 13. But Homeward says that it didn’t actually use its phone systems that way, instead only manually dialing Hill’s number. Likewise, Homeward says it never used automated messages to call Hill, although Hill disputes the point.
Hill, upset at these repeated calls, sued Homeward in federal court. He complained that Homeward’s calls constituted either knowing or negligent violations of the Telephone Consumer Protection Act, which, as explained, prohibits companies from using auto-dialers to call cellphone numbers without the called party’s consent. After discovery, each side moved for summary judgment, but the court denied each motion. It held that two genuine issues of material fact existed: (1) whether Homeward used an “automatic telephone dialing system” to call Hill; and (2) whether Hill offered his cellphone number to Homeward, or whether Homeward “captured” Hill’s number and called Hill outside the scope of his consent. R. 31 at 3–11. The case would proceed to a jury on these two questions.
Before trial, Hill tried to subpoena an unidentified corporate representative of Homeward
to testify about twenty-six topics at trial. Homeward moved to quash the subpoena because it did
not comply with
Trial began—and ended nearly as quickly as it began. A jury returned a general verdict for Homeward after one day. The court accepted the verdict and issued judgment.
II
Hill appealed. He makes three arguments: (A) that the district court should have granted his summary-judgment motion because the record showed that Homeward used an auto-dialer to call his cellphone without his prior express consent; (B) that the jury instruction on “prior express consent” was too broad; and (C) that the district court should have compelled a Homeward witness to testify at trial. None has merit.
A
Hill’s
post-trial
appeal from the district court’s denial of his
pretrial
summary-judgment
motion cannot succeed, because a losing party may not “appeal an order denying summary
judgment after a full trial on the merits.”
Ortiz v. Jordan
, 562 U.S. 180, 184 (2011);
accord Jarrett v. Epperly
,
We accordingly lack appellate jurisdiction over this portion of Hill’s appeal. Hill lost his
summary-judgment motion in August 2014 but did not appeal it until November 2014—after he
lost at trial. He does not say that the evidence produced
at trial
shows that he must win, but
rather that the evidence
at summary judgment
does. Here is what he should have done: make a
Rule 50(a) motion, renew that motion after the jury verdict under Rule 50(b), and then appeal the
denial of the Rule 50(b) motion.
See Maxwell v. Dodd
,
Even though Homeward did not address our lack of appellate jurisdiction, we have “a
duty to consider [it] sua sponte.”
Mattingly v. Farmers State Bank
,
No exceptions apply. When a summary-judgment denial involves “a pure question of
law,” our caselaw says that we may review it.
In re AmTrust Fin. Corp.
,
B
The district court’s jury instructions on “prior express consent” were not overly broad.
Our role in reviewing these instructions is merely to ensure they “adequately informed the jury
of the relevant considerations” of the law.
United States v. Kuehne
,
The court’s jury instruction on this issue read, in full:
“‘Prior express consent’ means that before Defendant made a call to Plaintiff’s cellular telephone number, Plaintiff had given an invitation or permission to receive calls to that number.
Autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ‘prior express consent’ of the called party.” R. 54 at 75.
This language adequately reflects the legal definition of prior express consent
promulgated by the Federal Communications Commission (FCC). It was taken directly from the
FCC’s rulings—which shape the law in this area,
see
Hill takes issue because the instruction leaves out a small excerpt from these rulings— that “prior express consent is . . . granted only if the wireless number was provided . . . during the transaction that resulted in the debt owed.” Id. Hill adds the word initial before “transaction” and thus reads the rule to limit consent to only when it’s given at the “initial transaction” that creates the debt. Appellant Br. 11 (emphasis in original); Reply Br. 4. That would be 2003 for Hill—before Homeward was Hill’s creditor and before Hill even had a cellphone—too early, Hill says, for him to possibly give his express consent.
But this excerpt does not bear the weight Hill puts on it. Unlike Hill, the FCC never uses
the words
initial
or
original
before “transaction.” It instead says that the debtor has given his
consent when he gives his number “
during the transaction
” that involves the debt (
i.e.
“regarding the debt”). 23 F.C.C. Rcd. at 564–65, 567 (emphasis added). This language does not change the general definition of express consent; it instead “emphasize[s]” that creditors can call
debtors only “to recover payment for obligations owed,” not on any topic whatsoever.
See id.
at
564, 565 n.36. So it ensures that a debtor who gives his number
outside
the context of the debt
has not given his consent to be called regarding the debt. FCC’s Letter Brief,
Re: Nigro v.
Mercantile Adjustment Bureau, LLC
, 2014 WL 3612689 (C.A.2), at *8–*9;
see Nigro v.
Mercantile Adjustment Bureau, LLC
,
Although the FCC has yet to explicitly address this issue,
see
FCC’s Letter Brief, 2014
WL 3612689 at *10–*11, courts interpreting the excerpt agree with our reading. A debtor
consents to calls about “an existing debt” when he gives his number “in connection with” that
debt, 23 F.C.C. Rcd. at 564—including after his initial signing of the loan.
See Moore v.
Firstsource Advantage, LLC
, No. 07-CV-770, 2011 WL 4345703, at *10 (W.D.N.Y. Sept. 15,
2011). While debtors may “[t]ypically” give their cellphone number “as part of a credit
application” at the beginning of the debtor–creditor relationship,
see
23 F.C.C. Rcd. at 565 n.36,
it doesn’t
have
to be that way.
Mais v. Gulf Coast Collection Bureau, Inc.
,
Finally, a debtor does not need to give his consent to automated calls specifically; his general consent to being called on a cellphone constitutes “prior express consent.” The FCC’s regulations for telemarketers now require a more specific type of consent—namely, that the called party consents, in writing, to being called by an auto-dialer . E.g. , 47 C.F.R. 64.1200(f)(8). But these telemarketer regulations do not apply in the debtor–creditor context. 23 F.C.C. Rcd. at 565. In this context, once the debtor gives his consent to be called on his cellphone, the creditor can use automated calls to that number. See id. at 564.
The district court did not err by leaving out the excerpt from the FCC’s ruling; its instructions adequately informed the jury of the law and did not confuse or mislead them.
C
Hill’s final argument—that the district court’s denials of his requests to compel a
Homeward representative to testify at trial—fares no better than his first two. The court made
three rulings relating to Hill’s request for a Homeward trial witness: It (1) quashed Hill’s
subpoena; (2) denied his request for a trial deposition; and (3) denied his motion to compel. We
can reverse these rulings “only if . . . [they] w[ere] an abuse of discretion resulting in substantial
prejudice.”
B & H Med., L.L.C. v. ABP Admin., Inc.
,
(1)
The subpoena
. Hill’s subpoena failed several aspects of
(2) The trial deposition . The district court was right to deny Hill’s unusual request— made after his subpoena failed—to take a “deposition” on new topics at trial. The Rules don’t allow for it. Hill’s claimed support, Rule 30(b)(6), does not help, because that rule contemplates depositions during discovery , not at trial. Of course, discovery had long since closed when Hill made this request—only one full business day before trial. Allowing a trial “deposition” in these circumstances would allow “an end-run around the failed subpoenas.” R. 49 (District Court Order) at 1. Like the district court, we will not require it.
(3)
The motion to compel
. The court also correctly rejected Hill’s last-ditch effort: his
motion to compel. When all else failed—on the Friday before the Monday trial—Hill moved the
district court to compel Homeward to bring a witness to trial. There is no procedure for this
request in the Rules; Hill attempted it because he was out of options. But his real option—one
that, at least five-and-a-half weeks before trial, Homeward told him he would need to do—was to
subpoena a corporate witness who either “resides, is employed, or regularly transacts business in
person” in Ohio.
Hill tries to avoid these conclusions by urging us to “temper[]” the “technical” Rules by
interpreting them “through the lens of common sense.” Appellant Br. 24. But these rules were
not made to be “tempered”; they were made to be “technical”—from the specific amount of fees
tendered, to the court issuing the subpoena, to the geographic scope of the request. It is not
surprising, then, that Hill can point to only one case that supports his position,
Conyers v. Balboa
Ins. Co.
, No. 8:12-CV-30-T-33EAJ, 2013 WL 2450108, at *1 (M.D. Fla. June 5, 2013) (using
Rule 30 to expand
III
For these reasons, we affirm.
_________________
CONCURRENCE
_________________
CLAY, Circuit Judge, concurring. I join the majority opinion in full. I write separately
only to highlight the limited scope of the primary question presented in today’s case. Plaintiff
Stephen Hill challenges the district court’s interpretation of the Federal Communications
Commission (FCC) regulations concerning the circumstances under which a debtor gives a
creditor “prior express consent” to call his cellphone. Hill does
not
challenge the FCC’s
interpretation of
I agree with the majority that “a debtor does not need to give his consent to automated calls specifically” because the FCC regulations say as much. Majority Op. at 8. However, I express serious doubt as to whether the FCC correctly interpreted the statute when it promulgated its regulations. The notion that a debtor gives his prior express consent to receiving calls from a creditor using an auto-dialer or prerecorded voice simply by giving his cellphone number to the creditor strikes me as contrary to both the plain language of the statute and the underlying legislative intent. See id. at 2 (quoting Mims v. Arrow Fin. Servs., LLC , 132 S. Ct. 740, 744 (2012)). But because the plaintiff in this case does not challenge the FCC regulation itself, we do not have occasion to pass judgment on it. I concur in the majority opinion on the understanding that such a challenge is not foreclosed in a future case.
Notes
[*] The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky, sitting by designation. 1