United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL, CHIEF JUDGE
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.
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) of the TCPA.
(Id. at 4-6.) The facts giving rise to this case are
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.)
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.)
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.
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.)
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.)
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.
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.
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, ...