United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES, District Judge.
Before the Court are the parties' cross-motions for summary judgment. Docket Nos. 17, 34. The motions are fully briefed and ready for adjudication.
I. Factual and Procedural History
In 2012, Barbara Skinner opened a line of credit with Fingerhut, a catalog sales company, to purchase goods from Fingerhut. In so doing she agreed to written terms which permitted Fingerhut to call her cell phone using an automated dialing system.
In 2013, Skinner fell behind on her payments, allegedly because one of the goods she purchased, a tablet-style computer, was damaged on arrival and Fingerhut had repeatedly failed to send her a return shipping label. Her non-payment triggered a series of autodialed phone calls.
On January 15, 2014, Skinner asked Fingerhut to stop calling her cell phone. As she explained to the customer service agent, "I mean, they're calling five and six or seven times a day, Saturdays and Sundays and everything and when I answer, there's nothing but static and it just hangs up.... I don't want you calling my cell phone like this."
Between that request and the end of March 2014, however, Fingerhut called Skinner's cell phone 307 times. Of those calls, either 161 or 163 - the parties do not agree - were dialed by automatic means. Fingerhut often autodialed Skinner several times a day.
Skinner continued to ask Fingerhut's agents to stop calling her cell phone. Transcripts show that she made such requests on March 8, 2014 ("Why are you calling my cell phone? I asked you all not to call my cell phone.") and March 16, 2014 ("I told them not to call my cell phone and they keep calling my cell phone.... If I'm asking you not call my cell phone, why are you still calling it then?... Now, I'm going to remind you, again, my cell phone, do not call my cell phone and you be blessed."). She again complained that she was receiving calls on Sunday.
In response, Fingerhut's agents told her that there were "no notes" memorializing her earlier do-not-call requests, that she could not stop Fingerhut's calls until she paid her debt, that she had to call the customer service department to get a return shipping label for the tablet, and (somewhat incongruously) that she could not get a return shipping label from customer service until she paid her debt.
When do-not-call requests are made, Fingerhut's written policy requires agents to tell the customer that the company will "suppress all future phone calls" and will instead send future communications in writing. Despite that policy, Fingerhut's corporate representative testified in a deposition in this case that its agents in fact have discretion to dishonor do-not-call requests.
Frustrated, Skinner filed this suit in March 2014. She sought statutory damages under the Telephone Consumer Protection Act (TCPA). 47 U.S.C. § 227(b)(1)(A)(iii). Those damages are $500 per autodialed call made to a cell phone without consent, and $1, 500 for each such call if the Court finds that the call was made willfully or knowingly. Id. § 226(b)(3). To that latter inquiry, Fingerhut's corporate representative testified that all of the calls in question, i.e., autodialed calls to Skinner after January 15, 2014, were intentionally made, were not the product of mistake, and were made with knowledge that an autodialer was being used to place the call.
Fingerhut now argues that it has no liability because Skinner consented in the credit agreement to receive autodialed calls to her cell phone. It says that under Utah law, which is the state law governing the credit agreement, she did not have the right to revoke that consent.
II. Legal Standard
Summary judgment is appropriate when "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). A party seeking to avoid summary judgment must identify admissible evidence in the record showing a fact dispute. Id. at 56(c)(1). "Once a summary judgment motion is made and properly supported, the nonmovant must go beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial. Neither conclusory allegations nor unsubstantiated ...