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Oatman v. Augusta Collection Agency, Inc.

United States District Court, S.D. Georgia, Augusta Division

December 11, 2019




         Before the Court is Defendant Augusta Collection Agency, Inc.'s ("ACA") motion for summary judgment. The Clerk of Court gave Plaintiff notice of the motion for summary judgment and informed him of the summary judgment rules, the right to file affidavits or other materials in opposition, and the consequences of default. (Doc. 12.) Thus, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), are satisfied. The time for filing materials in opposition has expired, and the motion is ripe for consideration.

         I. Background

         Plaintiff brought this case pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., and the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §§ 227 et seq. (Compl., Doc. 1, at 1.) Plaintiff alleges that Defendant violated Sections 1692c, 1692d and 1692e of the FDCPA as well as Section 227 (b) (1) (A) (iii)[1] of the TCPA. (Id. at 4-6.) The facts giving rise to this case are as follows.

         Plaintiff incurred a debt of $2, 196 to Gold Cross, Inc. ("Gold Cross") for emergency medical services provided to him. (Oatman Dep., Doc. 12-2, at 51:22-52:4.) Gold Cross engaged Defendant to collect the debt. (Def.'s Statement of Facts, Doc. 12-1, ¶ 2.) Plaintiff has not been sued on the debt. (Oatman Dep., at 25:19-21.)

         Plaintiff provided his phone number to Defendant during his first call to Defendant on March 21, 2018. (Oatman Dep., at 65:5-16, 85:19-86:6; Decl. Robert A. Wylds Jr., Doc. 12-4, at 3 and ¶ 5.) During the call, Plaintiff also told Defendant that he believed his insurance would cover the debt; Plaintiff agreed with Defendant's agent that she should check with the insurance provider and Plaintiff's employer to see if the services were covered. (Id. at 75:1-75:20). They were not. (Id. at 76:2-76:10.)

         During the call, Defendant's agent allegedly threatened Plaintiff with lawsuits and garnishment, threatened to contact a third party regarding the debt, and used profanity. (Id. at 86:1-87:1, 93:21-94:10, 95:8-16.) The specific instances of profanity include: that the agent "[didn't] give a damn" and that Mt]he shit is going to get resolved one way or another." (Id. at 98:12-14.)

         After March 21, Plaintiff and Defendant exchanged calls a total of seven times: Defendant called Plaintiff on March 23, 26, 27, and 28, and Plaintiff called Defendant three times on March 27. (Id. at 85:1-11.) When Defendant initiated the calls, Plaintiff heard a "robot-type sound" and not a live person. (Id. at 87:16-22.) During the March 28th call, Plaintiff told Defendant not to call him again. (Id. at 79:2-8; Decl. Robert A. Wylds Jr., ¶ 7.) Plaintiff claims that Defendant called him after he revoked his consent, but it is clear that Plaintiff called Defendant several times after March 28 to inquire about his debt. (Oatman Dep., at 80:12-14, 82:17-25; Decl. Robert A. Wylds Jr., 8.)

         II. Procedural Arguments

         Before addressing the merits of the motion, the Court considers the Parties' procedural arguments. Plaintiff argues that Defendant waived its affirmative defense of consent because it was not pled in the Answer as required by Federal Rule of Civil Procedure 8(c). This argument fails. Defendant did plead consent in its seventh defense. (Answer, Doc. 5, at 2.)

         Next, Defendant argues that Plaintiff's failure to file a separate statement of facts requires the Court to deem Defendant's account of the facts admitted under Local Rule 56.1. This argument fails too. In support of its argument, Defendant cites two cases: Bank of Ozarks v. Kingsland Hosp., LLC, No. 4:11-cv-237, 2012 WL 5928642, at *4 (S.D. Ga. Oct. 5, 2012), and Garmley v. Cochran, 651 Fed.Appx. 933, 937 (11th Cir. 2016) . While the court in Garmley upheld the district court's decision to deem uncontested facts admitted, it did so under the Northern District of Georgia's local rules. Garmley, 651 Fed.Appx. at 937.

         As the court in Bank of Ozarks highlights, those local rules are more exacting than the local rules of this Court. Bank of Ozarks, 2012 WL 5928642, at *5 ("Whereas the Northern District's [Local Rule] 56.1 explicitly requires summary judgment respondents to file a responsive brief and an individually numbered response to the movant's [statement of facts], the Southern District of Georgia's [Local Rule] 56.1 only requires the [statement of facts] be 'controverted by a statement served by the opposing party.'"). That court then considered the nonmoving party's reply brief and the evidence it cited, to the extent it complied with Local Rule 56.1. Id.; see also id. at *5 n.3 ("Although a response brief alone can satisfy the requirements of [Local Rule] 56.1, the purpose of [Local Rule] 56.1 leaves the Court in this case wanting something better capable of focusing the Court's attention on what is, and what is not, genuinely controverted." (internal quotation and punctuation omitted)). Accordingly, the Court considers Plaintiff's response brief - which contains a section titled "Statement of Facts" and citations to Plaintiff's deposition throughout - and the evidence it cites insofar as it conforms with Local Rule 56.1.

         III. Legal Standard

         Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Facts are "material" if they could "affect the outcome of the suit under the governing [substantive] law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is genuine "if the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor." Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). Inferences drawn from the facts must be in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and the Court should "resolve all reasonable doubts about the facts in favor of the non-movant." United States v. Four Parcels of Real Prop., 941 F.2d 1428, ...

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