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Shupe v. Capital One Bank USA N.A.

United States District Court, D. Arizona

October 25, 2018

Richard Shupe, et al., Plaintiffs,
Capital One Bank USA NA, Defendant.



         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.


         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.)


         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.)


         I. ...

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