SUSAN C. BUCKLEW, District Judge.
This cause comes before the Court on Defendant's Motion for Summary Judgment. (Doc. No. 22). Plaintiff opposes the motion. (Doc. No. 24). As explained below, the motion is denied.
Summary judgment is appropriate "if the movant shows that 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). The Court must draw all inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor.
This case involves debt collection communications made by Defendant Gulf Coast Collection Bureau, Inc. to Plaintiff Stanley Lee. The following is a brief description of the facts, which are not well-explained by the parties.
Plaintiff went to Sarasota Memorial Hospital ("SMH") for treatment on several occasions. On July 22, 2011, September 1, 2011, and May 16, 2012, Plaintiff signed a form titled, "General Consent and Financial Agreement," which states in pertinent part that he: (1) acknowledged receipt and understanding of the form and the information sheet;
At some point, SMH transferred Plaintiff's information, including his cell phone number, to Defendant in order for Defendant to collect Plaintiff's medical debt(s). (Doc. No. 23-1, ¶ 7, 8; Doc. No. 38, ¶ 4). Defendant contacted Plaintiff on his cell phone, and Plaintiff told Defendant to stop calling his cell phone, but Defendant's calls continued. (Doc. No. 24-2).
On June 27, 2013, Plaintiff sent Defendant a letter stating the following: "I dispute this debt. Please do not contact me again regarding this or any other debt your company may have or may obtain in my name. Instead contact my legal representative W. John Gadd." (Doc. No. 1, p. 5). Plaintiff listed Gadd's address in the letter. (Doc. No. 1, p. 5).
On August 23, 2013, Plaintiff sent another letter to Defendant, stating:
(Doc. No. 22-2, p. 13). Again, Plaintiff listed Gadd's address in the letter. (Doc. No. 22-2, p. 13).
Despite Plaintiff's letters, in July and August of 2013, Defendant sent two collection letters to Plaintiff that indicate that Plaintiff owed money for services provided on seven different dates in 2012 (five debts owed to SMH, one debt owed to Dr. Charles Loewe, and one debt owed to Sarasota ER Physicians). (Doc. No. 34).
On September 3, 2013, Plaintiff filed suit against Defendant for violating the Florida Consumer Collection Practices Act ("FCCPA") and the Telephone Consumer Protection Act ("TCPA"). Specifically, Plaintiff contends that Defendant violated the FCCPA by: (1) willfully communicating with him with such frequency as can reasonably be expected to harass him (in violation of Florida Statute § 559.72(7)); and (2) communicating with him directly after learning that he was represented by an attorney (in violation of Florida Statute § 559.72(18)). Additionally, Plaintiff contends that Defendant violated the TCPA by using an automatic telephone dialing system ("ATDS") to make debt collection calls to his cell phone without his consent (in violation of 47 U.S.C. § 227(b)(1)(A)(iii)). Defendant now moves for summary judgment on Plaintiff's TCPA claim.
The TCPA, pursuant to 47 U.S.C. § 227(b)(1)(A)(iii), provides that "[i]t shall be unlawful for any person . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service." Defendant violated the TCPA if it: (1) made a call using an ATDS; (2) the call was not made for emergency purposes; (3) the call was made without Plaintiff's prior express consent; and (4) the call was made to a telephone number assigned to Plaintiff's cellular telephone service.
Defendant moves for summary judgment on Plaintiff's TCPA claim, arguing that there could be no TCPA violation, because the calls were made with Plaintiff's prior express consent. As explained below, genuine issues of material fact exist that preclude summary judgment on Plaintiff's TCPA claim.
The FCC has the authority to make rules and regulations necessary to carry out the TCPA.
Defendant argues that it called Plaintiff's cell phone with Plaintiff's prior express consent, as shown by his provision of his cell phone number to SMH. Defendant, however, has failed to connect: (1) the provision of Plaintiff's cell phone number to SMH on a specific date, (2) to a specific medical service provided by SMH, (3) for which Plaintiff failed to pay, and (4) for which Defendant called Plaintiff's cell phone. It is unclear what medical debts were the basis of Defendant's calls to Plaintiff's cell phone. It is also unclear whether the debts were owed to SMH, as opposed to an affiliated doctor or entity.
The evidence before the Court shows that on July 22, 2011, January 10, 2012, and May 22, 2012, Plaintiff provided his cell phone number to SMH in connection with his treatment. To the extent that Defendant can show at trial that Plaintiff's treatment on those dates resulted in debts owed to SMH for which Defendant called Plaintiff's cell phone (prior to any revocation of consent in the summer of 2013), those calls would not violate the TCPA due to Plaintiff's provision of his cell phone number evidencing his prior express consent.
Defendant makes three additional/alternative arguments. First, Defendant argues that Plaintiff did not revoke his prior express consent to be called on his cell phone until he sent the August 23, 2013 letter. Thus, Defendant argues, without citation to authority, that Plaintiff did not revoke his prior express consent via his June 27, 2013 letter. However, the Court is not willing to reach an argument that is not properly briefed. Defendant (along with Plaintiff) should brief this issue (with citations to authority) and include it within the parties' pretrial statement.
Second, Defendant argues that the only communications that occurred after Plaintiff's June 27, 2013 letter were two communications that were required under the Fair Debt Collection Practices Act. Again, Defendant failed to support this argument with citations to authority, and the Court is not willing to reach an argument that is not properly briefed. Defendant (along with Plaintiff) should brief this issue (with citations to authority) and include it within the parties' pretrial statement.
Third, Defendant argues that at the very least, it is not liable under the TCPA for any calls made before Plaintiff's June 27, 2013 letter. This argument has already been addressed (with respect to Defendant's prior express consent argument), with the Court finding that genuine issues of material fact preclude summary judgment.
Accordingly, it is ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment (Doc. No. 22) is