James Kuntz v. Rodenburg LLP

United States Court of Appeals
For the Eighth Circuit
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No. 15-2777
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James V. Kuntz
lllllllllllllllllllll Plaintiff - Appellant
v.
Rodenburg LLP, doing business as Rodenburg Law Firm
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: May 18, 2016
Filed: September 22, 2016
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Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
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LOKEN, Circuit Judge.
After one brief telephone conversation, James Kuntz sued Rodenburg LLP
(“Rodenburg”), a North Dakota debt collection law firm hired to collect his
daughter’s consumer debt, asserting multiple violations of the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692d-f. Kuntz appeals the district court’s1 grant of
summary judgment dismissing claims under 15 U.S.C. §§ 1692b(3) and 1692d(5) that
Rodenburg unlawfully called him multiple times to obtain his daughter’s contact
information and that the volume of calls constituted unlawful harassment. Reviewing
the grant of summary judgment de novo, we affirm. See Freyermuth v. Credit Bureau
Servs., Inc., 248 F.3d 767, 770 (8th Cir. 2001) (standard of review).
I. Background.
In December 2013, Rodenburg was hired to collect a Capitol One credit card
debt of Alexis Kuntz. The client provided three telephone contact numbers for
Alexis, two cell phone numbers with Minnesota area codes, where Alexis apparently
resided, and a 701 area code number, John Kuntz’s home phone in Gladstone, North
Dakota, where his adult daughter Alexis has not lived since 1994. Rodenburg
verified the North Dakota number was a landline, so it could autodial that number.
See 47 U.S.C. § 227(b). Beginning December 18, 2013, and continuing through
January 20, 2014, Rodenburg autodialed Kuntz’s landline number twelve times
without a response. Kuntz’s caller ID revealed that a law firm had called but not the
reason for the call. His phone did not record voicemail messages.
On January 20, 2014, Kuntz returned the twelfth call from Rodenburg. He
spoke first to Linda Boschee, who transferred him to Theresa Wolf, the person in
charge of the Alexis Kuntz collection file. In a recorded conversation, Kuntz asked
why he was called because he was not on any of his daughter’s accounts. Wolf said
she therefore could not discuss the file with him and then said either, “She has her
phone number. We can get in contact with her and take yours out,” or, “If you have
1
The Honorable Ralph R. Erickson, Chief Judge of the United States District
Court for the District of North Dakota.
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her phone number, we can get in contact with her and take yours out.” Kuntz
responded, “Ah, let me call her and find out what she’s been getting.” After January
20, Rodenburg called Kuntz twice more, one autodial call, and once when his number
came up on Wolf’s call list. Wolf testified that this call was a mistake, as she had
intended to remove Kuntz’s phone number from the file after the January 20 call.
Rodenburg made no further calls to Kuntz. He commenced this action in May 2014.
II. The 15 U.S.C. § 1692b(3) Claim.
Section 1692b(3) provides:
Any debt collector communicating with any person other than the
consumer for the purpose of acquiring location information about the
consumer shall . . . (3) not communicate with any such person more than
once unless requested to do so by such person or unless the debt
collector reasonably believes that the earlier response of such person is
erroneous or incomplete and that such person now has correct or
complete location information.
The district court concluded that the first twelve calls were not “communications”
because “they did not convey that Rodenburg was calling about the debt.” See
Zortman v. J.C. Christensen & Assocs., 870 F. Supp. 2d 694, 704-05 (D. Minn.
2012). Kuntz agrees, but he argues that the two unanswered calls Rodenburg made
to him after January 20 violated § 1692b(3) because the January 20 conversation was
the one communication § 1692b(3) allows. The district court concluded that, even
accepting Kuntz’s disputed version of his conversation with Wolf, Rodenburg
reasonably believed that Kuntz’s response on January 20 was incomplete and
therefore § 1692b(3) permitted a call back to learn if he “now has correct or complete
location information.”
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Kuntz argues that summary judgment was improper because Rodenburg’s
intent in making the post-January 20 calls is a disputed fact.2 However, it is not a
material disputed fact. “To be a material fact, the factual issue must potentially affect
the outcome of the suit under the governing law.” Depositors Ins. Co. v. Wal-Mart
Stores, Inc., 506 F.3d 1092, 1094 (8th Cir. 2007) (quotation omitted). Here, the
district court adopted the position urged by Kuntz on the issue of intent: “It is
reasonable to infer that Wolf was attempting to acquire contact information about
Alexis” by calling back. Thus, the fighting issue is whether Rodenburg “reasonably
believed” that Kuntz had not provided a complete response in his January 20
communication with Wolf. Reasonableness is an objective standard. See Worsham
v. Accounts Receivable Mgmt., Inc., 497 F. App’x 274, 277 (4th Cir. 2012).
In the January 20 call, it is undisputed that Wolf told Kuntz, “we can get in
contact with [Alexis] and take your [phone number] out.” Kuntz replied, “let me call
her and find out what she’s been getting.” Kuntz argues that § 1692b(3)’s safe harbor
does not apply “where a person has complete information the first time but refuses to
provide it.” But Kuntz did not refuse to provide location information or state that he
could not provide it. He did not even say that Alexis could not be reached at the
number Rodenburg autodialed. He simply said he wanted to call his daughter and
check with her before responding further. In these circumstances, we agree with the
district court that it was objectively reasonable for Rodenburg to believe that parent
2
Rodenburg’s brief on appeal argued that Kuntz is a non-debtor third party who
lacks standing to sue under § 1692b(3) because it was enacted to safeguard the
reputation and privacy of consumers. At oral argument, Rodenburg conceded Kuntz
has standing. As this is an issue of prudential rather than Article III standing, the
concession is no doubt binding. See Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1386 (2014). But in any event, it was appropriate.
The plain language of § 1692b(3) makes clear that its purpose was to protect “any
person other than the consumer” from unwanted, repetitive calls from debt collectors.
See generally Todd v. Collecto, Inc., 731 F.3d 734, 737-39 (7th Cir. 2013).
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Kuntz had or could obtain location information about his daughter, Alexis, permitting
a follow-up call to learn if he had acquired or was now willing to provide “correct or
complete location information.” Cf. Worsham, 497 F. App’x at 276-77.
III. The § 1692d(5) Claim.
Section 1692d(5) provides:
A debt collector may not engage in any conduct the natural consequence
of which is to harass, oppress, or abuse any person in connection with
the collection of a debt. . . . [T]he following conduct is a violation of this
section: . . . (5) Causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with intent to annoy,
abuse, or harass any person at the called number.
Kuntz alleges that Rodenburg violated § 1692d(5) because calling him fourteen times
between December 19, 2013 and January 27, 2014 constituted unlawful harassment.
He argues on appeal that Rodenburg’s intent is a disputed issue of fact that precludes
summary judgment. However, we agree with the district court there is no material
factual dispute because Rodenburg’s conduct did not rise to the level of harassment
as a matter of law.
Kuntz does not argue the merits of the harassment issue on appeal except to
assert generally at oral argument that one phone call can be harassing. That assertion
failed to raise and preserve the issue. “Courts have held that the question whether a
debt collector’s conduct in attempting to contact a debtor by telephone amounts to
harassment or annoyance in violation of these provisions ultimately turns on evidence
regarding the volume, frequency, pattern, or substance of the phone calls.” Kavalin
v. Global Credit & Collection Corp., No. 10-CV-314, 2011 WL 1260210, at *4
(W.D.N.Y. Mar. 31, 2011). Though this is a fact-intensive issue, it may be resolved
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as a matter of law when the summary judgment record establishes that no reasonable
jury could find the requisite level of harassment. See Carman v. CBE Group, Inc.,
782 F. Supp. 2d 1223, 1229-32 (D. Kan. 2011) (collecting cases and granting
summary judgment); Gnesin v. Am. Profit Recovery, No. 12-CV-12595, 2012 WL
5844686, at *3 (E.D. Mich. Nov. 19, 2012); Waite v. Fin. Recovery Servs., Inc., No.
8:09-CV-02336-T, 2010 WL 5209350, at *3 (M.D. Fla. Dec. 16, 2010); Tucker v.
CBE Group, Inc., 710 F. Supp. 2d 1301, 1305 (M. D. Fla. 2010).
The judgment of the district court is affirmed.
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