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Turner v. Mccarthy Burgess & Wolff

United States District Court, W.D. Pennsylvania

December 27, 2016

LASHAY TURNER, Plaintiff,
v.
MCCARTHY, BURGESS & WOLFF, Defendant.

          Judge Fischer

          ROBERT C. MITCHELL United States Magistrate Judge

         I. Recommendation

         It is respectfully recommended that the motion for summary judgment filed on behalf of the defendant (ECF No. 44) be granted.

         II. Report

         Plaintiff, Lashay Turner, brings this action against Defendant, McCarthy, Burgess & Wolff (“MBW”), alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (FDCPA). Specifically, she alleges that Defendant called her repeatedly and continuously on her cell phone regarding a debt beginning around December 2014 and continuing through May 2015, that it called her an average of four to five times a day despite the fact that she disputed the debt and indicated that she would prefer to be contacted by email, that it called her after 9:00 p.m. and on her cell phone at work despite the fact that she stated that she was not permitted to receive personal calls at work, and that she was told that her wages would be garnished and legal action would be taken against her, actions which Defendant did not intend to take and/or could not have legally taken against her.

         Presently before the Court is Defendant's motion for summary judgment. Plaintiff concedes to the dismissal of Counts I and IV of her Complaint, but disputes Defendant's arguments to dismiss Counts II and III. For the reasons that follow, the motion should be granted.

         Facts

         Plaintiff became delinquent on her Verizon cable bill. She admits that she owed the debt. (Turner Dep. 13-14, 25.)[1] Plaintiff began to receive calls from another collection agency collecting on the Verizon account in December of 2014, but she does not know the name of the company. (Turner Dep. 17-18.) In mid-April 2015, Plaintiff spoke with a female collector, but she did not know for what company she worked. (Turner Dep. 17, 29.) She told the female collector to call her on Monday, so that she could pay. She asked the collector to call her before she went to work. (Turner Dep. 19.) She did not recall the female collector's name. (Turner Dep. 19.)

         The next day, she received a call from a male collector. (Turner Dep. 20.) Plaintiff told the male collector to stop calling her. After this conversation, she received two or three more calls. (Turner Dep. 28-30.)[2] Defendant indicates that no male collector from MBW called Plaintiff at any time. (Rossman Aff. ¶¶ 8-9.)[3]

         Plaintiff does not know the month that the calls stopped. (Turner Dep. 19.) She does not know the name of the male collector. She does not know by whom the male collector was employed. (Id.) She has no evidence that she spoke to anyone affiliated with MBW. (Turner Dep. 24-25.) Plaintiff associates the two calls she received from the female and the male collector with MBW. (Turner Dep. 25.) Defendant notes that she has no evidence that any other calls were from MBW.

         During her conversation with the female collector, she requested that she be contacted via email. However, during that same conversation, Plaintiff told the female collector to call her the following Monday. (Turner Dep. 19.) Plaintiff only received calls on her cell phone at 412-551-0948. (Turner Dep. 23.) Plaintiff does not recall the specific dates that MBW contacted her. (Turner Dep. 23.) She hung up before the caller could identify whether he or she worked for MBW. She hung up right after the caller advised that the call was to collect on a debt on behalf of Verizon. (Turner Dep. 23.)

         Plaintiff asserted that she received 4-5 calls per day from December 2014 to May 2015. She indicated that, at some point, she knew the calls were coming from MBW because a message was left for her with instructions to call MBW back. (Turner Dep. 24-25.)

         Plaintiff never sent any letters to MBW. (Turner Dep. 26.) She does not have any recollection of receiving a call from MBW prior to 8:00 a.m. or after 9:00 p.m. (Turner Dep. 28.) Plaintiff testified that the male collector mentioned wage garnishment. (Turner Dep. 30.) Plaintiff testified that the male collector said that if she did not take care of the debt it would go on her credit report. (Turner Dep. 30.)

         Plaintiff testified that the male collector said that legal action would be taken if she did not take care of the debt. (Turner Dep. 30.) Plaintiff has no evidence that there was no intent to take legal action by anyone, although she testified that MBW never brought legal action against her. (Turner Dep. 30, 43.)

         Plaintiff's cellular phone company did not have any records for the time period requested. (ECF No. 47 Ex. C.) Plaintiff admitted that she did not know how ...


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