In Muzyka v. Rash Curtis & Assocs., No. 2:18-cv-01097 WBS, 2019 U.S. Dist. LEXIS 111795, at *12-14 (E.D. Cal. July 3, 2019), Judge Shubb denied summary judgment to a debt collector on a call-volume case.
Defendant is correct that many district courts considering Section 1692d(5) claims have granted summary judgment for defendants where there is a high volume of calls but no other factors indicative of an intent to annoy, e.g. calls at inconvenient hours or locations. However, several district courts have been more reluctant to resolve the question of intent at the summary judgment [*13] stage. In kalwadi v. Risk Management Alternatives, Inc., 336 F. Supp. 2d 492 (D. Md. 2004), for example, the court denied cross-motions for summary judgment where the defendant made 26 or 28 calls to plaintiff in a two-month period, including three on one day. After noting the “disagreement among district courts as to the specific volume and pattern of calls that will allow a plaintiff to raise a triable issue of fact of the defendant’s intent to annoy or harass,” the court in Krapf v. Nationwide Credit, Inc., No. SACV 09-00711 JVSMLG, 2010 U.S. Dist. LEXIS 57849, 2010 WL 2025323, at *3 (C.D. Cal. May 21, 2010), likewise denied summary judgment to a defendant that had called the plaintiff 180 times in a single month. This court is of the mind that sometimes, as the court in Majeski v. I.C. Sys., No. 08 CV 5583, 2010 U.S. Dist. LEXIS 1830, 2010 WL 145861 (N.D. Ill. Jan. 8, 2010), noted, “the reasonableness of the volume and pattern of telephone calls is a question of fact best left to a jury.” See 2010 U.S. Dist. LEXIS 1830, [WL] at *3. It is true that in the instant case, plaintiff provides no evidence that defendant called her at an inconvenient location or at inappropriate hours. Nor are there allegations or evidence that defendant used abusive language. There is simply the volume, extent, and frequency of defendant’s calls, which occurred between 2015 and 2017, at most 90 in a year, and sometimes more than once in a single day. Perhaps defendant’s first and second calls to plaintiff were made purely with the intent to reach plaintiff to collect the debt. But was the eightieth? The hundredth? The hundred and twentieth? In the view of this court, these circumstances give rise to a genuine disputed issue of material fact as to defendant’s intent that is not appropriately resolved at the summary judgment stage. If, as defendant maintains, it never made contact with plaintiff, why did it persist in calling her after dozens and dozens of unanswered calls? Plaintiff’s theory — that defendant engaged in this conduct because it intended to grind her down, harass and oppress her with the sheer volume and incessance of its calls — is no less plausible than defendant’s explanation that it called merely to collect the debt. As such, there is a genuine dispute as to the material fact of whether or not defendant called plaintiff with the intent to harass, abuse, or oppress her.