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Hill v. Universal Fidelity, L.P.

United States District Court, N.D. Ohio, Eastern Division

April 26, 2018

OMINICKA HILL, Hill,
v.
UNIVERSAL FIDELITY, L.P., et al. Defendants.

          SARA LIOI, JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN B. BURKE, U.S. MAGISTRATE JUDGE

         I. Introduction

         This is an action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.[1] In her Amended Complaint (Doc. 9), pro se Plaintiff Ominicka Hill (“Plaintiff” or “Hill”) alleges that Defendant Universal Fidelity, L.P. (“Defendant” or “Universal Fidelity”)[2] violated the TCPA when it called her cell number using an automatic telephone dialing system (“ATDS”) or artificial or prerecorded voices without her prior express consent. Universal Fidelity has filed a Motion for Summary Judgment (the “Motion”). Doc. 52. Pursuant to the Court's Order of Reference (Doc. 5), the Motion is before the undersigned for a Report and Recommendation. The Motion has been fully briefed.[3]

         As is explained below, Hill has made admissions that, under Sixth Circuit case law, establish that her TCPA claim is barred because she consented to the calls made by Universal Fidelity to her cellphone. Moreover, she has failed to present any admissible evidence to counter Defendant's evidence; thus, there is no genuine issue of material fact and Universal Fidelity is entitled to judgment as a matter of law. Accordingly, the undersigned recommends that the Court GRANT Defendant Universal Fidelity's Motion for Summary Judgment (Doc. 52).

         II. Factual Summary

         This case stems from Defendant's attempt to collect a debt owed by an entity named Fabulous Lashes, LLC (“Fabulous Lashes”).[4] Doc. 9; Doc. 52-2, p. 1; Doc. 55-1. The debt consisted of an amount overdrawn on an account opened in the name of Fabulous Lashes at Charter One/Citizens Bank. Doc. 55-1, p. 2, ¶¶ 5-7; Doc. 55-2. Charter One/Citizens Bank referred the debt to Defendant for collection and provided Defendant Hill's cell number.[5] Doc. 55-1, p. 2, ¶¶ 7-8. In its attempt to collect the debt, Defendant placed one or more calls to Hill's cell number; those calls are the basis for Hill's TCPA claim. Doc. 9; Doc. 55-1, p. 2, ¶¶ 8-9. As discussed below, Hill has failed to respond to requests for admission served on her by Defendant and that failure means that the matters she was asked to admit are conclusively established. Hill's admissions include: that she was the 100% owner of Fabulous Lashes; that she opened the Charter One/Citizens Bank account; and that she provided her cell phone number to Charter One/Citizens Bank as a contact number to be called regarding any account held by her and/or by Fabulous Lashes. Doc. 52-2, pp. 1-3, Requests for Admission (“RFAs”) 1, 4, and 9.

         III. Procedural Background

         On December 9, 2016, Hill, acting pro se, filed a Complaint against Defendants Universal Fidelity and Scott Hearn (“Hearn”) alleging violations of the TCPA, Fair Debt Collection Practices Act (“FDCPA”) and the Ohio Consumer Sales Practices Act (“OCSPA”). Doc. 1. On April 20, 2017, Hill filed an Amended Complaint adding a new party defendant, Defendant Terry W. Simonds (“Simonds”). Doc. 9. The Amended Complaint again alleged violations of the TCPA (Count I), FDCPA (Count II), and OCSPA (Count III). Doc. 9.

         On July 24, 2017, Defendants Universal Fidelity, Hearn and Simonds filed a motion to dismiss Counts II and III. Doc. 24. On August 17, 2017, after Hill retained counsel, [6] she filed a notice of dismissal with prejudice of Counts II and III (Doc. 26), mooting Defendants' motion to dismiss. Thereafter, Hill's attorneys filed a motion to withdraw as counsel (Doc. 27), which was granted on September 7, 2017 (Doc. 31). Hill was granted time to seek new counsel (Doc. 31) but did not obtain new counsel and has been proceeding pro se. On October 27, 2017, the parties filed a stipulated notice of dismissal of all claims against Defendants Hearn and Simonds without prejudice. Doc. 36. Thus, Hill's sole remaining claim is Count I of the Amended Complaint and the sole remaining defendant is Universal Fidelity.

         IV. Hill's TCPA Claim

         In the Preliminary Statement portion of her Amended Complaint, Hill alleges that Defendant violated the TCPA by “repeatedly harassing [her] in attempts to collect alleged but nonexistent debt.” Doc. 9, p. 2, ¶ 3. The Amended Complaint goes on to allege a single date on which Defendant called Hill, June 13, 2014.[7] Hill alleges that, on that date, Defendant violated the TCPA in the following ways: “by leaving a recorded message using an automatic telephone dialing system or artificial or prerecorded voices on Plaintiff's personal cell phone”; “by calling Plaintiff's cell phone with no prior permission given by Plaintiff”; “by leaving a prerecorded message on Plaintiff[‘]s cell phone without express written consent”; and by calling her cell number, which is listed on the Federal Trade Commission's Do Not Call Registry. Doc. 9, pp. 3-4, ¶¶ 9-11, 13. Hill also alleges that she and Universal Fidelity “do not have an established business relationship within the meaning of 47 U.S.C. §227.” Doc. 9, p. 5, ¶ 16. In her Amended Complaint, Hill seeks injunctive and monetary relief, including a request for $40, 654.00 for the alleged improper call to a cell phone number listed on the NDNCR. Doc. 9, pp. 4-5.

         V. Defendant Universal Fidelity's Motion for Summary Judgment

         A. Defendant's position

         Universal Fidelity argues that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Doc. 52, Doc. 55. Universal Fidelity asserts that, because Hill failed to respond to its requests for admission that were served pursuant to Fed.R.Civ.P. 36, she is deemed to have admitted various matters, including that she provided prior express consent to be called by an automatic telephone dialing system (“ATDS”) and/or prerecorded voice. Doc. 52, Doc. 55. Universal Fidelity argues that, in light of these admissions, it has a complete defense to Hill's TCPA claims. Doc. 52, Doc. 55.

         Universal Fidelity also argues that, separate from Hill's admissions, summary judgment in its favor is appropriate because Hill has no evidence that Universal Fidelity used an autodialer to call her; Hill has no evidence to rebut the affidavit of Universal Fidelity; Hill voluntarily provided her cell phone number and thus gave prior express consent to receive collection calls; collection calls are not solicitations subject to the National Do-Not-Call Registry (“NDNCR”); and business calls are not subject to the NDNCR. Doc. 55. Universal Fidelity also argues that a private litigant cannot recover the $40, 000.00 civil penalty that is available to the Federal Trade Commission under the TCPA. Doc. 52.

         In its Reply brief, Defendant challenges statements and filings made by Hill in connection with her Opposition to Defendant's motion for summary judgment. Doc. 55, pp. 6-10.

         B. Hill's position

         Hill contends that she is not in default with respect to Defendant's requests for admission. Doc. 53-1, p. 1. She also argues that, if the Court finds she has admitted to providing prior express consent to be called, she revoked that consent. Doc. 53-1, pp. 1-2. With respect to her NDNCR claim, she asserts that the Do Not Call regulations apply to calls to registered cell phones, including business-to-business calls, and she argues that Defendant's violations were willful. Doc. 53-1, p. 2. Hill agrees that, as a private litigant, she is not entitled to recover civil monetary penalties available to the Federal Trade Commission. Doc. 53-1, p. 7.

         VI. Law and Analysis

         A. Motion for Summary Judgment

         Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. The movant “bears the initial responsibility of informing the district court of the basis for its motion, identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes ...


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