United States District Court, D. Arizona
ORDER
JENNIFER G. ZIPPS, UNITED STATES DISTRICT JUDGE
Four
motions are fully briefed and pending before the Court:
Plaintiffs Richard and Maria Shupe's Motion for Partial
Summary Judgment (Doc. 93); Defendant Capital One Bank's
Motion for Summary Judgment (Doc. 95); Plaintiffs'
counsel's motion to withdraw as attorney of record based
on conflicts between the Plaintiffs (Doc. 109); and Plaintiff
Richard Shupe's motion for a stay of proceedings. (Doc.
112.) The Court set these matters for hearing on October 22,
2018, and directed Plaintiffs to be present at the hearing
with their attorney so the Court could address their
counsel's motion to withdraw. (Doc. 115.) Maria Shupe
failed to appear as directed. The Court therefore vacated the
hearing[1] and took the motions for summary judgment
under advisement.[2]
For the
reasons stated herein, the Court will deny Plaintiffs'
motion for partial summary judgment and grant Defendant's
motion for summary judgment. The Court will deny the motion
to withdraw and the motion for stay. The Court will dismiss
Defendant's counterclaim.
FACTUAL
BACKGROUND
The
following facts are undisputed, except as indicated.
Plaintiff
Maria Shupe applied for a Capital One credit card in October
2011. (DSOF ¶ 1; PSOF ¶ 1.)[3] On this application, Maria
Shupe listed as her primary phone number a telephone number
ending in -6400. (DSOF ¶ 2; Doc 96, Ex. 1 at 3; PSOF
¶ 2.)
Capital
One approved Maria Shupe's application and opened an
account in her name in October 2011. (DSOF ¶ 8; PSOF
¶ 8.) Capital One asserts that it sent Maria Shupe a
mailing that included a credit card, and, according to its
standard practice, a Capital One customer agreement. (DSOF
¶¶ 9-10.) Under the Customer Agreement, cardholders
acknowledge that Capital One can contact them “using an
automated dialing or similar device, ” and on [their]
mobile telephone”; that Capital One's contacts with
them about their account “are not unsolicited”;
and that if they give Capital One their “mobile
telephone number, we may contact you at this number using an
Autodialer.”[4](DSOF ¶¶ 12-13.) Plaintiffs agree
that Capital One sent Maria Shupe a credit card, but they
deny that the mailing included the Customer Agreement. (PSOF
¶ 10-11.) Maria Shupe activated the credit card on
November 1, 2011. (DSOF ¶ 14; PSOF ¶ 14.) In 2014,
Capital One sent a replacement credit card to Maria Shupe at
her request. (DSOF ¶ 15; PSOF ¶ 15.)
Only
one purchase was made using the account in Maria Shupe's
name. (DSOF ¶ 16; PSOF ¶ 16.) That purchase was an
airline ticket made for passenger Maria Lourdes Shupe,
departing from Tucson, Arizona, arriving in Guadalajara,
Mexico, and returning to Tucson, Arizona. (DSOF ¶¶
16-17; PSOF ¶ 16-17.) Maria Shupe's full name is
Maria Lourdes Shupe; she was born in Guadalajara and she
resides in Tucson. (Id.)
The
Shupes dispute that they purchased the airline ticket and
have refused to pay the past-due balance on the account.
(DSOF ¶¶ 19-20; PSOF ¶¶ 19-20.) When the
airline ticket was left unpaid, Capital One began calling the
phone number provided on Maria Shupe's credit card
application. (DSOF ¶ 21; PSOF ¶ 21.) Capital One
acknowledges that it called that number 61 times between July
7, 2015 and August 11, 2015. (DSOF ¶ 21; PSOF ¶
21.) All calls identified Capital One and notified that
“the call was in regard to a debt.” (DSOF ¶
29-30; PSOF ¶ 29-30.)
Plaintiffs
assert that they “orally revoked consent” to
receive Capital One calls several times prior to revoking
consent in writing. (DSOF ¶ 36; PSOF ¶ 36.)
Plaintiffs state that, in the presence of others, Richard
Shupe called Defendant on June 7, 2015 and told it to stop
calling. (Pls.' SOF for MSJ ¶ 9.)[5] Capital One's
account records contain no indication that either Plaintiff
requested, verbally or in writing, that Capital One stop
calling the number prior to August 2015. (DSOF ¶ 37;
PSOF ¶ 37.) In August 2015, Capital One received a
cease-and-desist letter from Plaintiffs demanding that it
stop calling the number. (DSOF ¶ 35.) Capital One
asserts that it did not call the number after August 12,
2015. (DSOF ¶ 35.)[6] Plaintiffs make inconsistent statements
as to when Capital One calls stopped. In their
Interrogatories Plaintiffs state Capital One's calls
continued until February 2016. (DSOF ¶ 23; PSOF ¶
23.) Richard Shupe testified that the calls stopped when the
lawsuit began in August 2016. (DSOF ¶ 24; PSOF ¶
24.) Maria Shupe testified at her May 2018 deposition that
Capitol One is still calling. (DSOF ¶ 25; PSOF ¶
25.)
PROCEDURAL
HISTORY
Plaintiffs
initiated this action on August 24, 2016 (Doc. 1) and during
the course of the case filed three amended complaints. (Docs.
11, 22, 50.) The last filed complaint, the Third Amended
Complaint, was filed on December 27, 2017 and asserted two
claims: violation of the Telephone Consumer Protection Act
(TCPA) (Count I), and violation of 47 C.F.R. §
64.1200(c)(2), the regulations implementing the TCPA,
including the Do-Not-Call Registry (Count II). (Doc. 50.)
Plaintiff's proposed third amended complaint had also
included a claim for invasion of privacy (Doc. 47, Exh. 1);
however, in granting Plaintiffs permission to file a third
amended complaint, the Court ordered the privacy claim
dismissed for failure to state a claim. (Doc. 49.) Plaintiffs
subsequently filed the Third Amended complaint (Doc. 50),
which did not include the invasion of privacy claim.
Plaintiff
made an untimely request for reconsideration of the dismissal
of the invasion of privacy claim on February 2, 2018, and, on
March 19, 2018, Plaintiffs requested that the Court clarify
its basis for dismissal of the claim. (Doc. 54, 62.) On April
20, 2018, the Court concluded that Plaintiffs' proposed
third amended complaint contained allegations which could be
construed to state a claim for invasion of privacy.
(See Minute Entry at Doc. 75.) The Court therefore
reversed its earlier ruling that Plaintiffs' allegations
had been insufficient to state a privacy claim. The Court did
not set a deadline by which Plaintiffs should file an amended
complaint asserting the privacy claim and Plaintiffs did not
file an amended complaint.
During
the course of the case the Court has granted two extensions
of the discovery deadlines. (See Docs. 65, 75.) The
second extension was granted after Plaintiffs requested the
Court to reconsider dismissal of the invasion of privacy
claim.
On May
10, 2018, during the extended discovery period, Capital One
deposed Maria Shupe. (Def. CSOF ¶ 16; Doc. 105-6, Ex. F
¶ 3; Dep. Maria Shupe, Doc. 96 at 26.)[7] After ninety
minutes, Maria Shupe left the deposition. (Def. CSOF ¶
21; Dep. Maria Shupe, Doc. 105-9 at 7.) Capital One reserved
its right to seek the remaining time allowed by the Federal
Rules of Civil Procedure to complete the deposition. (Dep.
Maria Shupe, Doc. 105-9 at 7.)
On May
29, 2018, Plaintiffs moved to strike the deposition claiming
Maria Shupe was physically and mentally unable to
intelligently participate in her deposition, which request
was denied. (Docs. 82, 87.) On May 31, 2018, the Defendant
filed a motion requesting permission to file a counterclaim
for negligent misrepresentation based on statements made by
Maria Shupe during her deposition; the Court granted the
request. (Docs. 85, 89.) Defendant filed its amended answer
and counterclaim on June 21, 2018. (Doc. 90.) Plaintiffs
filed an answer to the counterclaim on June 25, 2018. (Doc.
91.)
On July
13, 2018, Plaintiffs filed their motion seeking summary
judgment on a claim for invasion of privacy. (Doc. 93.) In
its opposition Defendant asserted that the invasion of
privacy claim was not properly before the Court as Plaintiffs
had not filed an amended complaint. (Doc. 104). Plaintiffs
did not file a reply.
On July
16, 2018, Defendant filed its motion for summary judgment on
all claims in Third Amended Complaint. (Doc. 95.) Plaintiffs
opposed the motion and Defendant filed a reply. (Docs. 106,
108.)
On
September 25, 2018, after the motions for summary judgment
were fully briefed, Plaintiffs' counsel filed a motion to
withdraw from representation of the Plaintiffs due to
conflicts between the Plaintiffs; counsel wrote that the
Plaintiffs did not oppose the request. (Doc. 109.)
On
September 28, 2018, Richard Shupe filed, on his own behalf,
an objection to counsel's request to withdraw, but in so
doing detailed Plaintiffs' conflicts. (Doc. 112.)
Also on
September 28, 2018, Plaintiff Richard Shupe filed a motion to
stay the proceedings for 120 days, asserting Maria Shupe is
mentally ill and he is trying to get help for her. (Doc.
113.)
DISCUSSION
I.
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