District Court (Fla.) Says Neither Party Proved Entitlement to MSJ on the Issue of TCPA Trebling of Damages

In McBeth v. Credit Protection Ass’n, L.P, 2015 WL 4429324, at *3-4 (M.D.Fla.,2015), Judge Honeywell said that neither party wins on MSJ on the issue of willfulness under the TCPA.

Both parties argue that they are entitled to summary judgment with regard to treble damages for “knowing” or “willful” violations of the TCPA. McBeth argues that “knowing” or “willful” should be evaluated under the same standard as recklessness, and that, under this standard, CPA’s TCPA violations were willful or knowing as a matter of law. In support of her assertion, McBeth notes that: (1) CPA has been sued for alleged violations of the TCPA nearly 40 times since 2011, approximately half of which allege facts nearly identical to those here; (2) despite being sued for violating the TCPA on so many occasions, CPA maintained no written policies or procedures relating to the TCPA; (3) CPA has means by which it can identify whether a call is being placed to a cellular telephone number, but chooses not to use this technology for numbers it receives from original creditors; and (4) CPA has the responsibility to determine whether the numbers it obtains actually belong to the account debtor. CPA, on the other hand, argues that McBeth must establish that CPA knew (or should have known) that it was calling the wrong person, and further contends that the evidence is undisputed that CPA did not know that it was calling a cellular telephone or that it was calling the wrong person. CPA adds that although McBeth testified that she informed CPA’s representative that she was not “Tommy Mitchell” and that she did not consent to being called, the Court should disregard her self-serving testimony because there is no documentary evidence supporting her testimony. CPA finally notes that the fact that it has been sued under the TCPA in other cases is not dispositive of the fact that it acted knowingly or willfully here.  After careful consideration, the Court finds that neither party is entitled to summary judgment. To begin with, “knowing” or “willful” requires more than a showing of recklessness. Indeed, as the Eleventh Circuit has specified, “[t]he requirement of ‘willful or knowing’ conduct requires the violator to know he was performing the conduct that violates the statute.” Lary v. Trinity Physician Fin. & Ins. Servs., 780 F.3d 1101, 1107 (11th Cir.2015) (alterations and citation omitted); see also id. (“If we interpreted the statute to require only that the violator knew he was making a ‘call,’ … the statute would have almost no room for violations that are not ‘willful or knowing.’ ”) (alterations omitted). Accordingly, to establish a “knowing” or “willful” violation under the TCPA, a plaintiff must prove that the defendant knew, for example, that it did not have consent to call the plaintiff’s cellular phone number. See, e.g., Harris v. World Fin. Network Nat’l Bank, 867 F.Supp.2d 888, 895 (E.D.Mich.2012).  Under this standard, McBeth must establish that CPA knew, inter alia, that it was calling a cellular telephone, and that the person whom it was calling did not consent to being called. Herein arises a genuine issue of material fact: McBeth testified that she verbally informed CPA on several occasions to stop calling her cell phone, McBeth Dep. at 82–84, and CPA claims that it has no record of any such request, Doc. 93–1 (“Evans Decl.”) ¶ 9. Although the Court agrees with CPA that conclusory, self-serving, or uncorroborated allegations will not overcome a motion for summary judgment, McBeth’s testimony cannot be fairly characterized as such. Not only has McBeth testified as to the specific dates on which she allegedly spoke with CPA’s representative, see, e.g., McBeth Dep. at 83 (testifying that she spoke to CPA’s representative on March 25, 2013), according to CPA, one of the screenshots on McBeth’s cellular telephone depicts an outgoing call to CPA, see Section III.A.2, supra.  Conversely, none of the points raised by McBeth are sufficient to establish, as a matter of law, that CPA knowingly or willfully violated the TCPA. CPA’s prior violations of the TCPA do not mandate a finding of knowledge or willfulness, see, e.g., Levy v. Receivables Performance Management, LLC, 972 F.Supp.2d 409, 425 (E.D.N.Y.2013) (“the fact that [the defendant] has been found to have violated the TCPA in other instances does not suggest, as a matter of law, that they acted knowingly and willfully when they used their ATDS to place calls to plaintiff’s cell phone”), and, as discussed above, there is a genuine dispute whether McBeth actually spoke with CPA’s representative.     The finder of fact must resolve whether and, if so, precisely when McBeth first informed CPA that she was not “Tommy Mitchell” and requested that CPA cease calling her. See Coniglio v. Bank of Am., N.A., Case No. 14–cv–1628, 2014 WL 5366248, at *4 (M.D.Fla. Oct. 21, 2014) (“each call placed by Defendant after the Plaintiffs instructed Defendant that it does not have consent to call the Plaintiffs’ respective cellular telephone numbers constitutes a ‘willful’ and/or ‘knowing’ violation warranting the trebling of the award”). Accordingly, both parties’ motions for summary judgment as to this aspect of McBeth’s TCPA claim are due to be denied.