Last week a federal judge in Connecticut denied a debt collector’s motion for judgment on the pleadings in a Fair Debt Collection Practices Act (FDCPA) case that alleged 29 call attempts in 24 days showed defendant’s "intent to annoy, harass, and abuse him.” The case is Lundstedt v. I.C. System, Inc (Case No. 3-15-cv-00824, U.S.D.C., District of Connecticut).
A copy of the court’s order can be found here.
In May 2015 plaintiff filed a pro se complaint against defendant in Connecticut Superior Court. Defendant filed a notice of removal to Federal Court.
Per the court’s summary of plaintiff’s complaint:
“Plaintiff claims that defendant placed 29 telephone calls using an automatic dialing system to his home between February 16 and March 11, 2015. These calls were allegedly made to collect a debt owed by plaintiff to Verizon for about $160.
According to plaintiff, he told defendant on the first call that he was disputing the debt, to take him off its call list, and to stop calling him because it was injurious to plaintiff. Plaintiff’s phone number had been registered as well to the national “Do Not Call” registry. Plaintiff claims that defendant’s repeated calls caused him “serious terrorizing emotional distress,” and defendant’s “terrorizing tortuous acts caused” plaintiff distress “because [he] had been called hundreds if not thousands of times by other debt collectors.”
In addition to the alleged FDCPA claim, plaintiff’s complaint also alleged defendant 1) violated Connecticut law that regulates telephone solicitation (C.G.S.A. § 42-288) by calling the plaintiff multiple times when the plaintiff was already registered on the “DO NOT CALL” list, and 2) that defendant violated the Telephone Consumer Protection Act (TCPA), and 3) that defendant violated the Connecticut Unfair Trade Practices Act, and 4) that defendant negligently inflicted emotional distress on the plaintiff.
Defendant filed an answer to the complaint on June 5, 2015. On August 25, 2015 Defendant filed a motion for judgment on the pleadings.
Editor’s Note: A motion for judgment on the pleadings is similar to a motion for summary judgment, but is brought before Discovery occurs and a record of Discovery results is created. A party may bring a motion for judgment on the pleadings on the basis that the pleadings disclose that the are no material issues of fact to be resolved and that a party in entitled to judgment in their favor as a matter of law.
The court’s order September 27, 2017 order is in response to that motion.
The Court’s Order
The matter was heard by the Honorable Jeffrey Alker Meyer, United States District Court Judge.
The first two paragraphs of the order foretold the court’s thoughts on the FDCPA claim. Judge Meyer wrote:
“Plaintiff Peter Lundstedt’s phone would not stop ringing. It was a debt collector—defendant I.C. System, Inc.—who kept calling. Defendant called plaintiff’s home telephone some 29 times over the course of 24 days, all in hopes of collecting on a paltry sum that plaintiff owed his telephone company.
Now it is plaintiff who hopes to collect from defendant. He has filed this lawsuit claiming that defendant’s numerous calls violated his rights under multiple statutes and the common law. Defendant moves for judgment on the pleadings.”
Judge Meyer then made quick work summarizing his thoughts on all of plaintiff’s claims:
“I conclude that plaintiff has alleged a valid claim for relief under the Fair Debt Collection Practices Act because he has alleged facts that plausibly show defendant’s intent to annoy, harass, and abuse him by calling him so many times. But the rest of plaintiff’s claims are lacking. The Telephone Consumer Protection Act does not prohibit the use of an automatic dialing system to call plaintiff’s home telephone. The Connecticut Unfair Trade Practices Act does not apply because plaintiff did not suffer an ascertainable loss of money or property. A Connecticut law that regulates telephone solicitation (Conn. Gen. Stat. § 42-288a) does not apply to debt collection calls. And although the many phone calls to plaintiff were bothersome, no facts plausibly suggest that plaintiff suffered a foreseeable illness or injury that would allow him to maintain a claim for negligent infliction of emotional distress. Accordingly, I will grant in part and deny in part defendant’s motion for judgment on the pleadings.
But, it was Judge Meyer’s discussion of the FDCPA claim that is the focus of this article. Judge Meyer notes:
“The relevant provision of the FDCPA provides that “a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. The statute lists a specific example of conduct that violates this prohibition: “Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5).
………defendant argues that the alleged pattern of calls—29 calls over a period of 24 days—is legally insufficient to show an intent to annoy, abuse, or harass plaintiff as the statute requires. This seems like a lot of calls to me, and I cannot agree that the pattern is so insubstantial that it fails as a matter of law.” Emphasis added by insideARM.
Judge Meyer discusses the call log:
“The call log attached to the complaint shows multiple days when more than one call was made: three calls on February 17, 2015, four calls on February 26, two calls on February 28, three calls on March 2, and then two calls each on March 3, 4, 6, 9, 10, and 11. Doc. #1-1 at 26. Even though the calls did not occur at odd hours and there are no allegations of any abusive comments made by defendant during these calls, it is far from implausible to conclude on the basis of the frequency and pattern of calls that plaintiff could prove an intent to annoy, abuse, or harass.
There is enough here for the complaint to survive the pleading stage. Plaintiff has alleged enough facts to state plausible grounds from relief for his claim of annoyance, harassment, and abuse under 15 U.S.C. § 1692d. Accordingly, I will deny defendant’s motion for judgment on the pleadings with respect to plaintiff’s FDCPA claim.”
It should be noted and highlighted that this opinion is only a denial of a motion for judgment on the pleadings. All the judge is saying is that at this stage of the proceedings plaintiff has a plausible claim. Plaintiff will still need to convince a judge or jury that there was an intent to “abuse, harass or annoy.”
It is also interesting that the court spent little to no time discussing the alleged dispute of the debt and request to stop calling. That issue will be a significant element of the claimed intent to abuse, harass, or annoy.
It should also be noted that the case is being pursued pro se by Mr. Lundstedt. It has been my experience that courts tend to be very liberal and generous to pro se litigants. While the complaint passed muster on a motion for judgment on the pleadings, proving the elements alleged will be a heavier lift for Mr. Lundstedt.
On the other hand, defending a case brought by a pro se litigant often comes with a high cost. In Judge Meyer’s order, he references another case brought by Mr. Lundstedt that is also in front of Judge Meyer. That case is Lundstedt v. Deutsche Bank National Trust Company, et al (Case No 3-13-cv-1423, U.S.D.C. District of Connecticut). That case was filed in September of 2013, and is still pending. The court’s docket report shows 262 separate entries.