Jordan v. ER Solutions, Inc.

900 F. Supp. 2d 1323, 2012 WL 5245384, 2012 U.S. Dist. LEXIS 156156
CourtDistrict Court, S.D. Florida
DecidedOctober 18, 2012
DocketCase No. 10-62409-CIV
StatusPublished
Cited by4 cases

This text of 900 F. Supp. 2d 1323 (Jordan v. ER Solutions, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. ER Solutions, Inc., 900 F. Supp. 2d 1323, 2012 WL 5245384, 2012 U.S. Dist. LEXIS 156156 (S.D. Fla. 2012).

Opinion

ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT

WILLIAM P. DIMITROULEAS, District Judge.

THIS CAUSE is before the Court upon Defendant’s Motion for Final Summary Judgment [DE 38], filed on August 17, 2012. The Court has carefully considered the Motion, Plaintiffs Response in Opposition [DE 41], Defendant’s Reply [DE 44], the respective statements of material facts, and is otherwise fully advised in the premises.

I. SUMMARY JUDGMENT STANDARD

In a summary judgment motion, the movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After the moving party has met its initial burden of production, that burden shifts to the nonmoving party to demonstrate that there is a genuine issue of fact for trial. See id. at 324, 106 S.Ct. 2548. The party opposing a motion for summary judgment may not simply rest upon allegations or denials in the pleadings, but rather must go beyond the pleadings to show specific facts demonstrating that there is a genuine issue for trial. Id.

The Court must evaluate the evidence and make all inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, the nonmoving party’s burden is not discharged by pointing to a mere scintilla of evidence that creates a metaphysical doubt about an issue; rather, the evidence must be sufficient to allow a rational trier of fact to find for the non-moving party. See id. at 252, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

II. UNDISPUTED MATERIAL FACTS

Plaintiff Susan Jordan (“Jordan”) sued Defendant ER Solutions, Inc. (“ER”) because she believed that ER’s phone calls violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692d(6) and 1692e(ll) and the Telephone Consumer Protection Act (TCPA), 47 U.S.C. [1325]*1325§ 227(b)(1)(A)(iii). She is not seeking any actual damages, only statutory damages.

Jordan got into debt by shopping at Seventh Avenue, Inc. She completed two separate purchase orders for retail items, dated August 24, 2008, and July 17, 2009. At the time of purchase, she gave Seventh Avenue a phone number for contacting her. According to the terms and conditions of her purchase, by providing her number and agreeing to the purchase, Jordan consented to Seventh Avenue or its debt collection agents to contact her by automated phone calls. The terms and conditions were amended on July 1, 2010. The amendment removed the explicit permission for debt collectors to make automated calls Jordan, but retained permission for Seventh Avenue to do so.

Jordan did not pay her bills to Seventh Avenue. She had an outstanding balance of $416.51. Because Jordan had not paid, Seventh Avenue assigned the account to ER, a debt collector. Seventh Avenue gave ER the phone number Jordan had provided. ER called Jordan repeatedly from December 2009 to November 2010.

As it turns out, that phone number was not registered to Jordan. It was registered to her husband. It is part of a family plan, though. Jordan used the phone on a daily basis and paid the bills that are generated from using the phone.

After Jordan commenced this action, ER made a written settlement offer to Jordan for $1,001 plus reasonable attorney’s fees and costs. ER did not offer to allow judgment to be entered against it. Jordan did not accept this offer.

III. DISCUSSION

ER argues that it is entitled to summary judgment for several reasons. First, it claims that Jordan lacks standing because ER has offered Jordan all relief she seeks; alternatively, because Jordan is only seeking statutory damages, she has no injury in fact to support standing. Second, ER claims that there is only one phone call that could violate 15 U.S.C. § 1692d(6), but that section requires multiple call violations, so Jordan cannot succeed under § 1692d(6). Third, ER argues that Jordan’s § 1692e(ll) claim fails because ER is entitled to the bona fide error defense.

As for the TCPA claim, ER claims that Jordan is not covered by the statute because she does not own the cell phone number ER called and therefore does not qualify as the “called party” under the TCPA. Even if she were, she provided express consent to be called, which defeats her claim.

A. Standing under the FDCPA

ER claims that because it offered Jordan $1,001 and reasonable attorneys’ fees, Jordan’s claim is moot. Jordan disagrees because ER did not offer to allow the Court to enter judgment against ER. A plaintiffs opportunity to have judgment entered against a defendant is an important part of her claim. Zinni v. ER Solutions, Inc., 692 F.3d 1162, 1167-68 (11th Cir.2012). The Eleventh Circuit rejected the argument ER is making here, finding that without an offer of judgment, a plaintiffs FDCPA claim is not moot. Id. The Court finds that Jordan’s FDCPA claims are not moot.

Next, ER argues that Jordan has not demonstrated injury in fact because Jordan is only seeking statutory damages. ER is incorrect. Though injury in fact is a constitutional prerequisite to standing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), statutory damages satisfy that requirement. Judge Scola explained this clearly in Thorne v. Accounts Receivable Management, Inc., No. 11-22290, 2012 WL 3108662 (S.D.Fla. July 24, 2012). To briefly summarize, one suffers an “injury in [1326]*1326fact” for Article III purposes when there is a violation of a legally protected interest. See, e.g., Vt. Agency of Natural Res. v. United States, 529 U.S. 765, 773, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (“The interest must consist of obtaining compensation for, or preventing, the violation of a legally protected right.” (emphasis added)). “The ... injury required by Art. Ill may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.” Lujan, 504 U.S. at 578, 112 S.Ct. 2130 (emphasis added) (quoting Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
900 F. Supp. 2d 1323, 2012 WL 5245384, 2012 U.S. Dist. LEXIS 156156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-er-solutions-inc-flsd-2012.