May 23, 2017
Appeal from the United States District Court for the Middle
District of Pennsylvania (M.D. Pa. No. 3-15-cv-00718)
District Judge: Honorable A. Richard Caputo
Richard J. Perr [ARGUED] Fineman Krekstein & Harris Ten
M. Freeman Carlo Sabatini [ARGUED] Sabatini Law Firm
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
FISHER, Circuit Judge.
case - involving tens of thousands of dollars in statutory
damages, half a jury trial, and cross-appeals - stems from a
debt collector's pursuit of $25 in unpaid medical bills.
John Daubert won summary judgment on his Telephone Consumer
Protection Act (TCPA) claim against NRA Group, LLC but he
lost at trial on his Fair Debt Collection Practices Act
(FDCPA) claim. NRA appeals. Daubert cross-appeals. We'll
affirm on the TCPA claim but reverse and remand on the FDCPA
started with lower-back pain. Daubert went to Wilkes-Barre
General Hospital for treatment. The Hospital's radiology
department, operated by Radiology Associates of Wyoming
Valley, x-rayed him. His bill was $46. Radiology Associates
forwarded his medical report and cellphone number to the
company that billed its patients, Medical Billing Management
Services, or MBMS. Daubert's health-insurer contributed
$21, so Daubert was responsible for the remaining $25. He
apparently didn't pay (it's unclear why). So MBMS
transferred his account to a debt collector, NRA, passing
along Daubert's cell number.
attempted to collect the $25 that Daubert owed Radiology
Associates in two ways. First, it sent him a collection
letter through an independent vendor. Visible through
glassine windows on the envelope were - Daubert alleged - the
bare sequence of letters and numbers NRA used to keep track
of Daubert's collection account in its system and -
undisputedly - a barcode that, when scanned by the
appropriate reader, revealed that account number. Second, NRA
called Daubert sixty-nine times in ten months. He answered
just once. Each call was made using a Mercury Predictive
Dialer. Calls were made according to campaigns created by
Charlene Sarver, NRA's collections director. Campaigns
used preselected criteria to pick the accounts and phone
numbers the Dialer could access.
sued NRA in Pennsylvania state court. He alleged violations
of the FDCPA, 15 U.S.C. § 1692 et seq. The bare
account number and barcode on the collection letter's
envelope, he claimed, could've revealed his private
information. NRA removed the case to the District Court and
filed an answer pressing a "bona fide error"
defense to Daubert's FDCPA claim. See 15 U.S.C.
before discovery's end Daubert filed a motion to amend
his complaint. Based on the sixty-nine calls he received and
the Dialer's automation he wanted to allege a violation
of the TCPA, 47 U.S.C. § 227. NRA opposed the motion but
the District Court granted it. So NRA amended its answer
adding a "prior express consent" defense to
Daubert's new TCPA claim. See id. §
served NRA with a deposition notice under Federal Rule of
Civil Procedure 30(b)(6). It was delivered two weeks before
the deposition was to occur. It said NRA was to pick a
witness ready to testify on its behalf about things germane
to Daubert's FDCPA and TCPA claims. For his TCPA claim
Daubert wanted information about any automated dialing system
NRA used to call third parties.
designated Anita Schaar, director of payment processing, as
its 30(b)(6) witness. At her deposition she was asked,
"Are you able to testify about all the information known
or readily available to NRA Group, LLC about [the] topics [in
the 30(b)(6) notice]?, " to which she responded,
"Yes." J.A. 153. She was asked, "Is there
anything you think you could have done to have prepared more
for today's deposition?" J.A. 154. She said,
"No, I don't think so, " but mentioned she
could've spoken to her coworker Charlene Sarver who
"might" have had "more technical
information" about the Dialer than she. J.A. 155. Schaar
went on to explain how NRA's employees only generate
calling campaigns. The Dialer, she said, is otherwise fully
Q. . . . So how is a phone call placed through the dialer
A. There is a campaign created.
Q. And this is the type of campaign that Charlene [Sarver]
A. Yes . . . .
Q. Is a human being involved in the placement of any phone
calls made on the dialer, with the exception of creating a
A. I - I don't know. I don't think there's any
other way to - no. The dialer does the dialing.
Q. Okay. So a human being selects the campaign criteria but
then the dialer actually ...