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Barnes v. Conn Appliances, Inc.

United States District Court, S.D. Mississippi, Northern Division

August 28, 2018




         BEFORE THIS COURT are the following motions: defendant's Motion in Limine [Docket no. 78]; defendant's Motion to Continue [Docket no. 80]; defendant's Motion for Extension of Time to File Motion [Docket no. 81]; and plaintiff's Motion to Strike [83] Response in Support of Motion and/or Motion for Leave to File Sur-Reply [Docket no. 84]. This court has reviewed all the filings of the parties and is persuaded to rule as follows.

         I. MOTION IN LIMINE [Docket no. 78]

         This lawsuit had been set for a jury trial to start on November 6, 2017. [Docket no. 79]. Defendant filed its Motion in Limine [Docket no. 78] on October 3, 2017, asking this court to exclude the introduction of several categories of evidence from consideration by the jury: namely, defendant's policies and procedures, including those related to the handling of cease and desist requests; defendant's automated dial announcing device (hereinafter referred to as “ADAD”) registration; other litigation or claims against defendant; findings from other cases regarding whether software manufactured by Noble Systems, Inc. is an automatic telephone dialing system (hereinafter referred to as “ATDS”); defendant's business dealings with individuals other than plaintiff and her son, Iassac Barnes; plaintiff's emotional reaction to calls; comments that defendant is subject to strict liability; arguments or statements that defendant used an “autodialer” or placed “robocalls;” and evidence of defendant's financial condition. Defendant relies on Rules 401, 402, and 403 of the Federal Rules of Evidence for support.

         Defendant thus recognizes that when analyzing evidence under the Federal Rules of Evidence on relevance, this court must observe some basic inquiries: whether the evidence

(a) […] has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) [whether that] fact is of consequence in determining the action

Fed. R. Evid. 401.

         Further, relevant evidence is admissible unless any of the following provides otherwise:

• the United States Constitution;
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible

Fed. R. Evid. 402.

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Fed. R. Evid. 403.

         Before utilizing these “relevancy” guideposts, this court needs to place the background facts of this dispute in perspective. Plaintiff herein alleges that defendant violated the Telephone Consumer Protection Act, codified at Title 47 U.S.C. § 227 et seq. (hereinafter referred to as the “TCPA”). Plaintiff here is Lawanda Barnes (hereinafter referred to as “Barnes”). Her son is Isaac Barnes (hereinafter referred to as “Isaac”, so as not to confuse his identity with that of his mother). Supposedly, on August 9, 2014, the pair went to the Conn Appliance Store (hereinafter referred to as “Conn”), the defendant herein, located in Ridgeland, Mississippi. Barnes and Issac live in the same house.

         While in the defendant's store, Isaac applied for credit to purchase a bedroom suite. A credit application was provided. Someone put Barnes' cellular telephone number on that credit application, as Isaac's point of contact. The parties herein sharply dispute who actually wrote that information on the application. Barnes never signed the credit application, which contained the following waiver under the TCPA:

For each telephone number you provide to seller (either directly or by placing a call directly to us), you consent and authorize us to place telephone calls to you at that number. Such consent expressly includes authorization for seller (and/or seller's affiliates and/or agents) to send text messages and/or place telephone calls to cellular or landline telephone numbers using pre-recorded or artificial voice messages, as well as calls made by an automatic dialing system.

[Docket no. 69-1].

         Conn approved Isaac's credit application and, subsequently, delivered the bedroom suite to him.

         Isaac never made any payments on the credit account. An aggrieved Conn thereafter began placing telephone calls to Barnes' cellular telephone. Barnes answered the phone calls on multiple occasions. During the course of those telephone calls, Barnes informed Conn that the phone number was hers and not Issac's. She also attempted on multiple occasions to make payment arrangements on the account along with attempting to make payments over the phone. After some months, Barnes alleges that she told Conn not to call her telephone number anymore.

         Conn persisted. Conn admits to calling Barnes' cellular telephone over six hundred (600) times, a number of times after Barnes ordered Conn to stop calling. Isaac's bill of $4, 138.56 owed to Conn is still outstanding. Barnes, however, by virtue of this lawsuit, contends that Conn is liable to her for an unspecified amount; however, she claims she can at least recover $500 per phone call - an amount that presumably would be approximately $300, 000.[1]

         a. Cease and Desist Requests Procedures and Policy

         Defendant asks this court to exclude its policies and procedures, specifically those related to cease and desist requests. The targeted policies and procedures speak to how Conn's employees should handle cease and desist requests from its customers, namely what to do when customers tell Conn employees not to call anymore.

         Defendant trumpets two reasons why these matters should be excluded: (1) they are irrelevant; and (2) their production would occasion a danger of unfair prejudice and confusion of the issues. The defendant adds that should this court admit these policies and procedures, the court should limit the introduction of such to those policies and procedures that were in effect between August 9, 2014, and April 27, 2016.

         Plaintiff says, on the other hand, that defendant's policies and procedures are relevant. They are relevant, explains plaintiff, as to defendant's conduct in general, whether that conduct was prudent and lawful and, in addition, whether defendant acted knowingly, willfully, or negligently - a determination that could subject defendant to treble damages under the statute[2].

         This court is persuaded that Conn's policies and procedures that were in effect during the time frame encompassed by this lawsuit are relevant and not unduly prejudicial. Accordingly, this court DENIES defendant's motion in limine on this ground, but limits plaintiff's presentation to the jury to defendant's policies and procedures that ...

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