Stephen Hill v. Homeward Residential, Inc. , 799 F.3d 544 ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0201p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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STEPHEN M. HILL, ┐
Plaintiff-Appellant, │
│
│ No. 14-4168
v. │
>
│
HOMEWARD RESIDENTIAL, INC., fka American │
Home Mortgage Servicing, Inc., │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:13-cv-00388—Gregory L. Frost, District Judge.
Argued: August 4, 2015
Decided and Filed: August 21, 2015
Before: CLAY and McKEAGUE, Circuit Judges; BERTELSMAN, District Judge.*
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COUNSEL
ARGUED: Troy J. Doucet, DOUCET & ASSOCIATES, CO., L.P.A., Dublin, Ohio, for
Appellant. Kimberly Y. Smith Rivera, MCGLINCHEY STAFFORD, Cleveland, Ohio, for
Appellee. ON BRIEF: Troy J. Doucet, DOUCET & ASSOCIATES, CO., L.P.A., Dublin,
Ohio, for Appellant. Kimberly Y. Smith Rivera, MCGLINCHEY STAFFORD, Cleveland,
Ohio, for Appellee.
McKEAGUE, J., delivered the opinion of the court in which CLAY, J., and
BERTELSMAN, D.J., joined. CLAY, J. (pg. 11), delivered a separate concurring opinion.
*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
1
No. 14-4168 Hill v. Homeward Residential, Inc. Page 2
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OPINION
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McKEAGUE, Circuit Judge. The Telephone Consumer Protection Act prohibits
companies from making automated calls to a person’s cellphone without that person’s prior
express consent. We must primarily decide whether a person gives his “prior express consent”
when he gives his creditor his cellphone number in connection with a debt he owes. In line with
the agency in charge of enforcing the Act, we conclude that this constitutes “prior express
consent” to be called on that number about the debt. Because the district court’s decision reflects
that rule, and because the court did not commit any other error, we affirm.
I
Congress passed the Telephone Consumer Protection Act in response to “[v]oluminous
consumer complaints about abuses of telephone technology—for example, computerized calls
dispatched to private homes.” Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 744 (2012). The
Act accordingly “restricts certain kinds of telephonic and electronic” communications. Sandusky
Wellness Ctr., LLC v. Medco Health Solutions, Inc., 788 F.3d 218, 221 (6th Cir. 2015). For
example, the Act prohibits any person from making “any call” to someone’s cellphone “(other
than a call made for emergency purposes or made with the prior express consent of the called
party) using any automatic telephone dialing system or an artificial or prerecorded voice.”
47 U.S.C. § 227(b)(1)(A)(iii). The recipient of one of these prohibited communications can sue
for private money damages—for at least $500 per violation. § 227(b)(3)(B).
Stephen Hill claims he received well over a hundred of these prohibited phone calls from
his creditor, Homeward Residential, Inc., in connection to a debt he owed. His story began in
2003 when he obtained a mortgage loan from Jordan West Companies. He provided his home
and work numbers on that loan. Three years later, though, he cancelled his home phone and
replaced it with a cellphone. After his loan transferred to Homeward, he contacted the company
to advise it that his primary phone number had changed. Homeward then replaced Hill’s
No. 14-4168 Hill v. Homeward Residential, Inc. Page 3
obsolete home number with his cellphone number in its records. Hill knew that this number
would be used if Homeward needed to reach him about his mortgage.
Hill eventually fell behind on his mortgage, but Hill and Homeward worked out a loan
modification so Hill could keep his home. Hill listed his cell phone number on that document.
When he continued to fail to pay his mortgage payments on time, Homeward called him to
collect its payments. In July 2010, Hill told Homeward not to call him at work anymore,
instructing Homeward to call his cellphone instead. This left his cellphone number as the only
number listed in his records with Homeward.
Hill’s loan modification failed, and he ultimately defaulted on his mortgage. After that,
from May 2011 through January 2013, Hill filled out at least ten forms with Homeward to try to
mitigate his losses. He provided his cellphone number on all these forms. See Appellee Br. 3–4
(listing the forms). He also provided express written consent for Homeward to call his
cellphone. See, e.g., R. 19-3 (Uniform Borrower Assistance Form) at 30 (“I consent to being
contacted concerning this request for mortgage assistance at any cellular or mobile telephone
number I have provided[,] . . . includ[ing] . . . telephone calls to my cellular or mobile
telephone.”). By doing so, Hill testified that he understood Homeward “would call me at that
cell phone number.” R. 18-1 (Hill Depo.) at 49.
To collect from Hill and in other matters regarding his loan, Homeward called Hill on the
number he provided: his cellphone. In all, Homeward called him an alleged 482 times from
2009 to 2013. One hundred seventy-six of these calls used Prairie, a device “capable of
autodialing a phone number.” Appellee Br. 13. But Homeward says that it didn’t actually use its
phone systems that way, instead only manually dialing Hill’s number. Likewise, Homeward
says it never used automated messages to call Hill, although Hill disputes the point.
Hill, upset at these repeated calls, sued Homeward in federal court. He complained that
Homeward’s calls constituted either knowing or negligent violations of the Telephone Consumer
Protection Act, which, as explained, prohibits companies from using auto-dialers to call
cellphone numbers without the called party’s consent. After discovery, each side moved for
summary judgment, but the court denied each motion. It held that two genuine issues of material
fact existed: (1) whether Homeward used an “automatic telephone dialing system” to call Hill;
No. 14-4168 Hill v. Homeward Residential, Inc. Page 4
and (2) whether Hill offered his cellphone number to Homeward, or whether Homeward
“captured” Hill’s number and called Hill outside the scope of his consent. R. 31 at 3–11. The
case would proceed to a jury on these two questions.
Before trial, Hill tried to subpoena an unidentified corporate representative of Homeward
to testify about twenty-six topics at trial. Homeward moved to quash the subpoena because it did
not comply with Federal Rule of Civil Procedure 45. Apparently recognizing its defects, Hill
filed another subpoena one week before trial, mooting his first subpoena. Homeward again
moved to quash this subpoena because it also failed to comply with Rule 45, including it did not
identify a witness and did not tender the necessary fees. The district court agreed with
Homeward and quashed the subpoena. The court also rejected Hill’s subsequent efforts to
compel Homeward to produce a corporate representative at trial.
Trial began—and ended nearly as quickly as it began. A jury returned a general verdict
for Homeward after one day. The court accepted the verdict and issued judgment.
II
Hill appealed. He makes three arguments: (A) that the district court should have granted
his summary-judgment motion because the record showed that Homeward used an auto-dialer to
call his cellphone without his prior express consent; (B) that the jury instruction on “prior
express consent” was too broad; and (C) that the district court should have compelled a
Homeward witness to testify at trial. None has merit.
A
Hill’s post-trial appeal from the district court’s denial of his pretrial summary-judgment
motion cannot succeed, because a losing party may not “appeal an order denying summary
judgment after a full trial on the merits.” Ortiz v. Jordan, 562 U.S. 180, 184 (2011); accord
Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir. 1990). A district court’s summary-judgment
denial is “interlocutory” in nature—the antithesis of what Congress has given us jurisdiction to
hear. 28 U.S.C. § 1291 (giving us jurisdiction over final decisions); see Ortiz, 562 U.S. at 188.
When a court denies a summary-judgment motion because of a genuine issue of fact (as the court
did here) it “decides only one thing—that the case should go to trial”; the denial “does not settle
No. 14-4168 Hill v. Homeward Residential, Inc. Page 5
or even tentatively decide anything about the merits of the claim.” Switzerland Cheese Ass’n,
Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23, 25 (1966). A trial, of course, does settle the matter on
the merits and is final in nature. So once a trial occurs, the losing party may appeal from that
judgment—but not from the summary-judgment denial, because § 1291 does not give us
jurisdiction to hear those non-final appeals. See Ortiz, 562 U.S. at 184, 188–89.
We accordingly lack appellate jurisdiction over this portion of Hill’s appeal. Hill lost his
summary-judgment motion in August 2014 but did not appeal it until November 2014—after he
lost at trial. He does not say that the evidence produced at trial shows that he must win, but
rather that the evidence at summary judgment does. Here is what he should have done: make a
Rule 50(a) motion, renew that motion after the jury verdict under Rule 50(b), and then appeal the
denial of the Rule 50(b) motion. See Maxwell v. Dodd, 662 F.3d 418, 421 (6th Cir. 2011). But
here is what he did instead: make an oral Rule 50(a) motion, fail to renew that motion, and then
appeal the denial of the Rule 56 motion rather than the Rule 50 motion. See R. 59 (Notice of
Appeal). His “failure to renew” or appeal his “motion for judgment as a matter of law under
Federal Rule of Civil Procedure 50(b)” leaves us “with no warrant” to address the summary-
judgment denial. Ortiz, 562 U.S. at 185; see Barnes v. City of Cincinnati, 401 F.3d 729, 736 (6th
Cir. 2005). And even if his generic notice of appeal of the trial judgment encompassed the
denial of his oral Rule 50(a) motion, see, e.g., Blockel v. J.C. Penney Co., 337 F.3d 17, 24 (1st
Cir. 2003), he forfeited any argument on that issue by not discussing it in his briefing.
Even though Homeward did not address our lack of appellate jurisdiction, we have “a
duty to consider [it] sua sponte.” Mattingly v. Farmers State Bank, 153 F.3d 336, 336 (6th Cir.
1998) (per curiam). And this issue cannot be waived or forfeited by the parties. See Page Plus
of Atlanta, Inc. v. Owl Wireless, LLC, 733 F.3d 658, 659–60 (6th Cir. 2013).
No exceptions apply. When a summary-judgment denial involves “a pure question of
law,” our caselaw says that we may review it. In re AmTrust Fin. Corp., 694 F.3d 741, 750 (6th
Cir. 2012). But that is not what happened here; like Ortiz, it involved questions of fact. The
district court held, for example, that there was a genuine issue of fact whether Hill gave his
cellphone number to Homeward (i.e. expressly consented) or whether Homeward acquired it by
other means. R. 31 at 10; see also R. 63 (Trial Transcript) at 30. “Depending upon the answers”
No. 14-4168 Hill v. Homeward Residential, Inc. Page 6
to this and other factual issues, the court wrote, Hill may or may not have given his consent. R.
31 at 10. A jury had to decide. And after a jury has given its answer, we cannot review the
court’s pretrial order. Nolfi v. Ohio Kentucky Oil Corp., 675 F.3d 538, 545 (6th Cir. 2012).
B
The district court’s jury instructions on “prior express consent” were not overly broad.
Our role in reviewing these instructions is merely to ensure they “adequately informed the jury
of the relevant considerations” of the law. United States v. Kuehne, 547 F.3d 667, 679 (6th Cir.
2008) (citations omitted). A district court has discretion to deny proposed instructions, so we
review this challenge “for abuse of discretion.” Id. We may reverse only if the instructions
“were confusing, misleading, or prejudicial.” Id. (citations omitted). They were not here.
The court’s jury instruction on this issue read, in full:
“‘Prior express consent’ means that before Defendant made a call to Plaintiff’s
cellular telephone number, Plaintiff had given an invitation or permission to
receive calls to that number.
Autodialed and prerecorded message calls to wireless numbers that are provided
by the called party to a creditor in connection with an existing debt are
permissible as calls made with the ‘prior express consent’ of the called party.”
R. 54 at 75.
This language adequately reflects the legal definition of prior express consent
promulgated by the Federal Communications Commission (FCC). It was taken directly from the
FCC’s rulings—which shape the law in this area, see 47 U.S.C. § 227(b)(2) (charging the FCC
with prescribing rules and regulations under the Act). The instructions paraphrased the FCC’s
original definition on “prior express consent”—that a party who gives an “invitation or
permission to be called at [a certain] number” has given its express consent with respect to that
number. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of
1991, 7 F.C.C. Rcd. 8752, 8769 (1992). And the instructions quote verbatim the FCC’s later
clarification of that definition in the debtor–creditor context—that a creditor doesn’t violate the
Act when it calls a debtor who has “provided [his number] in connection with an existing debt.”
In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,
No. 14-4168 Hill v. Homeward Residential, Inc. Page 7
23 F.C.C. Rcd. 559, 564 (2008). A court does not misstate the law when it simply states the law.
This jury instruction was proper.
Hill takes issue because the instruction leaves out a small excerpt from these rulings—
that “prior express consent is . . . granted only if the wireless number was provided . . . during the
transaction that resulted in the debt owed.” Id. Hill adds the word initial before “transaction”
and thus reads the rule to limit consent to only when it’s given at the “initial transaction” that
creates the debt. Appellant Br. 11 (emphasis in original); Reply Br. 4. That would be 2003 for
Hill—before Homeward was Hill’s creditor and before Hill even had a cellphone—too early,
Hill says, for him to possibly give his express consent.
But this excerpt does not bear the weight Hill puts on it. Unlike Hill, the FCC never uses
the words initial or original before “transaction.” It instead says that the debtor has given his
consent when he gives his number “during the transaction” that involves the debt (i.e.,
“regarding the debt”). 23 F.C.C. Rcd. at 564–65, 567 (emphasis added). This language does not
change the general definition of express consent; it instead “emphasize[s]” that creditors can call
debtors only “to recover payment for obligations owed,” not on any topic whatsoever. See id. at
564, 565 n.36. So it ensures that a debtor who gives his number outside the context of the debt
has not given his consent to be called regarding the debt. FCC’s Letter Brief, Re: Nigro v.
Mercantile Adjustment Bureau, LLC, 2014 WL 3612689 (C.A.2), at *8–*9; see Nigro v.
Mercantile Adjustment Bureau, LLC, 769 F.3d 804, 806–07 (2d Cir. 2014) (holding that a third
party did not give his prior express consent to be called about a debt when he gave his number
outside of the context of the debt). Contra Reply Br. 9–11. Still, then, any “autodialed and
prerecorded message calls to wireless numbers provided by the called party in connection with
an existing debt are made with the ‘prior express consent’ of the called party.” 23 F.C.C. Rcd. at
564 (emphasis added). And that’s precisely what this jury instruction said. R. 54 at 75.
Although the FCC has yet to explicitly address this issue, see FCC’s Letter Brief, 2014
WL 3612689 at *10–*11, courts interpreting the excerpt agree with our reading. A debtor
consents to calls about “an existing debt” when he gives his number “in connection with” that
debt, 23 F.C.C. Rcd. at 564—including after his initial signing of the loan. See Moore v.
Firstsource Advantage, LLC, No. 07-CV-770, 2011 WL 4345703, at *10 (W.D.N.Y. Sept. 15,
No. 14-4168 Hill v. Homeward Residential, Inc. Page 8
2011). While debtors may “[t]ypically” give their cellphone number “as part of a credit
application” at the beginning of the debtor–creditor relationship, see 23 F.C.C. Rcd. at 565 n.36,
it doesn’t have to be that way. Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1122
(11th Cir. 2014); see, e.g., Sartori v. Susan C. Little & Associates, P.A., 571 F. App’x 677, 683
(10th Cir. 2014) (holding that the debtor gave his prior express consent, even though he didn’t
give his number until one year after debt was incurred). Unsurprisingly, then, a person gives his
“prior express consent” under the statute if he gives a company his number before it calls him.
Finally, a debtor does not need to give his consent to automated calls specifically; his
general consent to being called on a cellphone constitutes “prior express consent.” The FCC’s
regulations for telemarketers now require a more specific type of consent—namely, that the
called party consents, in writing, to being called by an auto-dialer. E.g., 47 C.F.R.
64.1200(f)(8). But these telemarketer regulations do not apply in the debtor–creditor context. 23
F.C.C. Rcd. at 565. In this context, once the debtor gives his consent to be called on his
cellphone, the creditor can use automated calls to that number. See id. at 564.
The district court did not err by leaving out the excerpt from the FCC’s ruling; its
instructions adequately informed the jury of the law and did not confuse or mislead them.
C
Hill’s final argument—that the district court’s denials of his requests to compel a
Homeward representative to testify at trial—fares no better than his first two. The court made
three rulings relating to Hill’s request for a Homeward trial witness: It (1) quashed Hill’s
subpoena; (2) denied his request for a trial deposition; and (3) denied his motion to compel. We
can reverse these rulings “only if . . . [they] w[ere] an abuse of discretion resulting in substantial
prejudice.” B & H Med., L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 268 (6th Cir. 2008); accord
Appellant Br. 22. They were not even close.
(1) The subpoena. Hill’s subpoena failed several aspects of Federal Rule of Civil
Procedure 45, so the district court did not abuse its discretion in quashing it. Rule 45 requires,
among other things, that the party serving it to tender certain fees, Fed. R. Civ. P. 45(b)(1),
comply with geographical limitations, id. at 45(c), and allow a reasonable time to comply, id. at
No. 14-4168 Hill v. Homeward Residential, Inc. Page 9
45(d)(3)(A)(i). And it requires the party to specify the “person” who is being subpoenaed, and to
serve it on that “named person.” Id. at 45(a)(1)(A)(iii), (b)(1), (c)(1); see David D. Siegel,
Practice Commentaries to Rule 45, at C45-9 (“If a particular person in the employ of a
corporation or other entity is the person sought as a witness, the subpoena should of course be
delivered to that person.”). Hill’s subpoena did none of these things. The court was thus within
its discretion to quash it.
(2) The trial deposition. The district court was right to deny Hill’s unusual request—
made after his subpoena failed—to take a “deposition” on new topics at trial. The Rules don’t
allow for it. Hill’s claimed support, Rule 30(b)(6), does not help, because that rule contemplates
depositions during discovery, not at trial. Of course, discovery had long since closed when Hill
made this request—only one full business day before trial. Allowing a trial “deposition” in these
circumstances would allow “an end-run around the failed subpoenas.” R. 49 (District Court
Order) at 1. Like the district court, we will not require it.
(3) The motion to compel. The court also correctly rejected Hill’s last-ditch effort: his
motion to compel. When all else failed—on the Friday before the Monday trial—Hill moved the
district court to compel Homeward to bring a witness to trial. There is no procedure for this
request in the Rules; Hill attempted it because he was out of options. But his real option—one
that, at least five-and-a-half weeks before trial, Homeward told him he would need to do—was to
subpoena a corporate witness who either “resides, is employed, or regularly transacts business in
person” in Ohio. Fed. R. Civ. P. 45(c)(1)(B). If no one that Hill wanted fit that description, then
he could have taken a deposition of a corporate officer during discovery for its use at trial. Yet
he waited (and waited) . . . and then filed a deficient subpoena. Like his previous efforts, his
motion to compel fails. The district court did not abuse its discretion in denying this request.
Hill tries to avoid these conclusions by urging us to “temper[]” the “technical” Rules by
interpreting them “through the lens of common sense.” Appellant Br. 24. But these rules were
not made to be “tempered”; they were made to be “technical”—from the specific amount of fees
tendered, to the court issuing the subpoena, to the geographic scope of the request. It is not
surprising, then, that Hill can point to only one case that supports his position, Conyers v. Balboa
Ins. Co., No. 8:12-CV-30-T-33EAJ, 2013 WL 2450108, at *1 (M.D. Fla. June 5, 2013) (using
No. 14-4168 Hill v. Homeward Residential, Inc. Page 10
Rule 30 to expand Rule 45). Even if that case persuaded us that the Rules should be modified by
judicial fiat, the district court did not abuse its discretion in enforcing them as written.
III
For these reasons, we affirm.
No. 14-4168 Hill v. Homeward Residential, Inc. Page 11
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CONCURRENCE
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CLAY, Circuit Judge, concurring. I join the majority opinion in full. I write separately
only to highlight the limited scope of the primary question presented in today’s case. Plaintiff
Stephen Hill challenges the district court’s interpretation of the Federal Communications
Commission (FCC) regulations concerning the circumstances under which a debtor gives a
creditor “prior express consent” to call his cellphone. Hill does not challenge the FCC’s
interpretation of 47 U.S.C. § 227(b)(1)(A)(iii) as promulgated in paragraphs 9 and 10 of In the
Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991,
23 F.C.C. Rcd. 559 (2008).
I agree with the majority that “a debtor does not need to give his consent to automated
calls specifically” because the FCC regulations say as much. Majority Op. at 8. However, I
express serious doubt as to whether the FCC correctly interpreted the statute when it
promulgated its regulations. The notion that a debtor gives his prior express consent to receiving
calls from a creditor using an auto-dialer or prerecorded voice simply by giving his cellphone
number to the creditor strikes me as contrary to both the plain language of the statute and the
underlying legislative intent. See id. at 2 (quoting Mims v. Arrow Fin. Servs., LLC, 132 S. Ct.
740, 744 (2012)). But because the plaintiff in this case does not challenge the FCC regulation
itself, we do not have occasion to pass judgment on it. I concur in the majority opinion on the
understanding that such a challenge is not foreclosed in a future case.