Harris v. World Financial Network National Bank

867 F. Supp. 2d 888, 88 Fed. R. Serv. 40, 2012 U.S. Dist. LEXIS 46882, 2012 WL 1110003
CourtDistrict Court, E.D. Michigan
DecidedApril 3, 2012
DocketCase No. 10-14867
StatusPublished
Cited by14 cases

This text of 867 F. Supp. 2d 888 (Harris v. World Financial Network National Bank) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. World Financial Network National Bank, 867 F. Supp. 2d 888, 88 Fed. R. Serv. 40, 2012 U.S. Dist. LEXIS 46882, 2012 WL 1110003 (E.D. Mich. 2012).

Opinion

OPINION & ORDER

SEAN F. COX, District Judge.

Plaintiff Dan Harris filed this action against Defendants World Financial Network National Bank, Alliance Data Systems Corp., and Allied Data Systems, alleging violations of 47 U.S.C. § 227, the Telephone Consumer Protection Act (“TCPA”), and M.C.L. § 445.251, the Michigan Collection Practices Act (“MCPA”). The matter is currently before the Court on Plaintiffs Motion for Partial Summary Judgment as to TCPA claims and Plaintiffs motion to strike evidence and testimony. The parties have fully briefed the issues and the Court heard oral argument on March 22, 2012. For the reasons set forth below, the Court shall GRANT Plaintiffs motion for partial summary judgment and GRANT Plaintiffs motion to strike.

BACKGROUND

Plaintiff filed this action on December 8, 2011, alleging two counts: 1) violation of the Telephone Consumer Protection Act of 1991 and C.F.R. 16.1200 et seq.; and 2) violation of the Michigan Collection Practices Act. On September 22, 2011, Plaintiff filed a Motion for Partial Summary Judgment as to the TCPA claims only. (D.E. No. 60).

Pursuant to this Court’s practice guidelines, Plaintiffs motion and supporting brief included a separate statement of undisputed material facts. Defendants filed their response to Plaintiffs motion, and their supporting brief included a counter-statement of material facts. The following facts, viewed in alight most favorable to the Defendants, are gleaned from the parties’ statements and the uncontradicted documentary evidence submitted by the parties.

Plaintiff is the owner of a cellular telephone with a phone number with the last four digests of 1233 (“the 1233 number”), and maintains cellular telephone service through Verizon Wireless.

Defendant World Financial Network National Bank (“WFNNB”) is a national banking association that issues retail credit cards. Defendant Alliance Data Systems Corp. (“Alliance”) performs the servicing of these credit cards, including the billing and collections services. Alliance uses an Avaya Predictive Dialing system, an automated dialing system, to make its collection calls.

On or about June 14, 2010, Leann Morgan (“Morgan”), an individual who is not a party to this lawsuit, opened a credit account with WFNNB from Woman Within (the “Woman Within account”), an online and catalog retailer. Morgan’s personal information, including a telephone number, was forwarded to WFNNB in order to process the credit account. While applying for the credit account, Morgan provided Woman Within with Plaintiffs 1233 number. WFNNB approved Morgan’s account, and she made purchases that were charged to the Woman Within account.

On or about June 15, 2010, Morgan also applied for a WFNNB credit account with an online and catalog retailer known as Roaman’s (the “Roaman’s account”). Again, WFNNB received Plaintiffs 1233 number as the telephone number associated with the credit application for Morgan’s Roaman’s account. Morgan’s application was approved and she made purchases that were charged to the Roaman’s account.

Similarly, on or about August 10, 2010, Morgan opened a third credit account with WFNNB through another online and catalog retailer called Brylane Home (the “Brylane account”). WFNNB again received Plaintiffs 1233 number as the con[891]*891tact number associated with the account. Morgan also made purchases that were charged to her Brylane account.

Morgan fell past due on all three of her credit accounts with WFNNB and Alliance initiated collection efforts by using the automated dialing system to place calls to what it believed to be Morgan’s phone number.

Alliance called the 1233 number on August 18, August 28, and again on September 1 of 2010, and left a prerecorded message each time. From August 18, 2010, to October 27, 2010, Alliance called the Plaintiffs 1233 number 56 times using the automated dialing system.

Generally, when Alliance receives notice that they are calling a wrong number, that number can be removed from the Avaya calling system. It is Alliance’s practice that, if an unauthorized, third-party1 to an account notifies Alliance that the number they are calling is a wrong number, that number is removed from that specific account for which Alliance called. The phone number is not removed from all accounts or from the entire Avaya calling system. Alliance representatives are instructed to remove numbers from multiple accounts, or the entire system, only if the removal is requested by an actual cardholder or the actual debtor. (Thomas Dep. at 160-161). Defendants have the capability to configure the Avaya System to remove a phone number from all accounts associated with that phone number. Id.

On August 23, 2010, Plaintiff answered a phone call from Alliance and stated to an Alliance representative that it should stop calling him because they were calling the wrong number. After receiving additional calls from Alliance, Plaintiff answered another call from Alliance on September 4, 2010, and again notified the representative that Alliance was calling the wrong number. Alliance contends that each time Plaintiff notified Alliance that the 1233 number was not associated with Morgan, Alliance removed Plaintiffs 1233 number from that particular account.

Plaintiff never received additional phone calls from Alliance that were associated with the accounts for which Plaintiff notified Alliance that they had the wrong number. Plaintiff, however, continued to receive calls from Alliance regarding the third account.

On September 22, 2011, Plaintiff filed this motion for partial summary judgment as to the TCPA claims only. After Defendants filed an amended response brief on December 23, 2011, Plaintiff also filed a motion to strike evidence and certain testimony that Defendants rely upon in their response brief.

LEGAL STANDARD

Plaintiff brings his Partial Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The party seeking summary judgment has the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admission on file together with the affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party who “must [892]*892set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed. R. Crv. P. 56(e)).

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Bluebook (online)
867 F. Supp. 2d 888, 88 Fed. R. Serv. 40, 2012 U.S. Dist. LEXIS 46882, 2012 WL 1110003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-world-financial-network-national-bank-mied-2012.