Lee Momient v. Northwest Collectors, Inc. , 666 F. App'x 531 ( 2016 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 9, 2016 *
Decided November 10, 2016
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15-2205
LEE A. MOMIENT, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 13cv2140
NORTHWEST COLLECTORS, INC.,
Defendant-Appellee. James B. Zagel,
Judge.
ORDER
Lee Momient brought this action after the defendant, Northwest Collectors,
demanded payment on bills from an Evanston, Illinois, hospital. In the lawsuit Momient
claims that Northwest’s efforts violated federal and state law, but after discovery, and
with the company’s motion for summary judgment still pending, the district court
dismissed the action from the bench. The basis for that decision is unclear; like the
parties, we cannot tell if the dismissal rests on the motion for summary judgment or
*We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 15-2205 Page 2
instead penalizes Momient for a perceived failure to prosecute the lawsuit. Regardless,
we conclude that the court erred in dismissing Momient’s principal claims, which arise
under the Telephone Consumer Protection Act, 47 U.S.C. § 227, and the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692–1692p. We remand those claims for trial.
We start by recounting what Momient alleges in his complaint. At least 40 times
between November 2011 and May 2012, Northwest used an automatic dialer to call
Momient’s cellphone. The bulk of those calls, the complaint alleges, were made without
Momient’s consent and after he demanded that the calls cease. According to Momient,
when he answered the very first call around November 4, he disputed the bills and
demanded verification of the debt. He also told the Northwest employee that he did not
want the company making any more calls to his cellphone. Following this telephone
conversation, Momient expected to receive from Northwest a written communication
identifying the creditor and detailing the amounts that Northwest was trying to collect.
See 15 U.S.C. § 1692g (under FDCPA, debt collector must send, within five days of initial
communication to consumer, written notice of creditor’s name and amount of debt,
unless that information was provided to consumer during initial communication). But
more than a week passed without any correspondence from Northwest, so Momient
faxed to Northwest a letter disputing the unpaid bills and repeating his earlier demands
for verification of the debt and cessation of the calls to his cellphone. Momient sent
another letter in February 2012, this time by certified mail, saying the same things.
Northwest ignored both letters and continued calling his cellphone, says Momient, so
finally in May 2012 he telephoned the company and asked why it continued calling him.
The man who fielded this call, who identified himself as Larry Mason, told Momient that
he personally opened the envelope sent by certified mail but inside was a blank sheet of
paper, not Momient’s letter.
Meanwhile, the complaint continues, Northwest had notified the major credit
bureaus in December 2011 that Momient’s hospital bills were in collection but failed to
disclose that he disputed the bills. In February 2012, after learning what Northwest had
done, Momient informed the credit bureaus that he disputed the accuracy of
Northwest’s information. Yet according to Momient, Northwest continued plying the
credit bureaus with inaccurate information.
Momient then brought this action against Northwest in May 2013. In addition to
his claims under the Telephone Consumer Protection Act and the FDCPA, Momient
contended that Northwest had violated the Fair Credit Reporting Act, 15 U.S.C.
§§ 1681–1681x, by failing to investigate whether the information that Northwest sent to
No. 15-2205 Page 3
the credit bureaus was accurate after it received notice that Momient disputed his debts.
He also brought claims under Illinois law for violation of the Consumer Fraud and
Deceptive Business Practices Act, 815 ILCS §§ 505/1–505/12, and for intentional infliction
of emotional distress and intrusion upon seclusion. (Two other state-law claims have
been abandoned on appeal, so we say nothing about them.) During discovery Northwest
(after initially defaulting on the lawsuit) served Momient with seven requests to admit,
see FED. R. CIV. P. 36, and notified him that the company intended to depose him, see FED.
R. CIV. P. 30. Northwest twice agreed to extensions of Momient’s deadline to answer its
requests to admit, but still he was two days late. He also resisted being deposed, backing
out of four scheduled sittings over an eight-week period and continuing to stall even
after the district court had ordered him to cooperate. Northwest asked the court to
compel Momient’s deposition and also to deem its Rule 36 requests admitted. In
April 2014 the court granted that relief but declined the company’s further request for
fees and costs. The court warned Momient, however, that he faced dismissal if he did not
comply with the court’s orders.
Momient then was deposed, and afterward Northwest moved for summary
judgment on Momient’s federal claims. The company principally asserted that, by giving
his cellphone number to the hospital, Momient also had given the debt collector
“consent to call his cellular phone.” But Momient disagreed, saying in a declaration that
he had not given his creditors consent to call him on his cellphone in connection with a
debt. Northwest also maintained that it had sent Momient the written notices required by
the FDCPA, but Momient swears in his declaration that he never received any notice
from the company, which at summary judgment submitted only blank form letters
(lacking a date, Momient’s address or even his name, the names of the creditors, and the
amounts allegedly owed). Momient never told Northwest in writing to cease
communicating with him, the company continued, because inside the envelope sent by
certified mail was a blank piece of paper, not his letter. Northwest submitted a
photocopy of the envelope and the chief operating officer’s unsworn answer to an
interrogatory saying he personally had opened the envelope. Momient disputed
Northwest’s account and, in his declaration, avers that the envelope contained a letter,
which he produced during discovery, demanding that Northwest cease calling his
cellphone. The claims under the Fair Credit Reporting Act also failed, Northwest
asserted, because Momient did not have a private right of action under the statute and
because its chief operating officer’s affidavit established that Northwest had conducted a
reasonable investigation following Momient’s disputes. Northwest also argued that
Momient did not show that he had any damages, and therefore he could not proceed
under the statute. Momient countered that whether Northwest had performed a
No. 15-2205 Page 4
reasonable investigation was a material question of fact and stated that he should be
allowed to cross-examine a witness with regard to Northwest’s procedures.
Northwest also moved for summary judgment on Momient’s state-law claims.
The company argued that Momient’s claims under the Consumer Fraud and Deceptive
Business Practices Act lack merit because its practices were not deceptive, and because
Momient’s admissions further established that he had no damages. Momient simply
disagreed with Northwest’s contentions and claimed that these were questions for a
jury. Momient’s claim of intentional infliction of emotional distress must fail, Northwest
argued, because calling Momient’s cellphone in an effort to collect a debt was not
extreme or outrageous behavior. Momient responded that he had alleged this claim
adequately in his complaint and thus should be allowed to prove it to a jury. And,
finally, Northwest asserted that summary judgment should be granted on Momient’s
claim for intrusion upon seclusion because, according to the company, Momient had
consented to Northwest’s calls and he could not show that the calls caused him any
anguish. Momient again responded that this claim was adequately pleaded and thus he
should be allowed to present it to a jury. He also attested in his declaration that he had
suffered the harms alleged in his complaint.
In a December 2014 order, the district court acknowledged that Momient had
opposed Northwest’s motion with his declaration, but the court “stayed” consideration
of the claims now before us. After alluding to Momient’s comments about
cross-examination and disputes for a jury to resolve, the district court opined that the
lawsuit “appears to be going nowhere and must be resolved.” The court directed
Momient “to appear for a discovery conference at which he must provide the basis for
his request to cross-examine non-party producers of documents and witnesses.” The
court warned that, if Momient could not “appear at the ordered date, he must provide
evidence to explain the reason for his failure to appear.”
The discovery conference never was scheduled, however, and after four months
Momient apparently sent an e-mail to Northwest’s attorney asking her advice about
getting the case back on track. Counsel responded by filing a motion asking the district
court to “enter judgment against Plaintiff pursuant to F.R.C.P. 56” and also to impose
sanctions against Momient “for his vexatious and bad faith conduct.” Northwest
contended, first, that none of Momient’s claims could survive summary judgment given
the facts he admitted by not timely answering the company’s requests to admit.
Northwest further asserted that Momient had not “set the discovery conference with the
No. 15-2205 Page 5
court” and thus “improperly delayed the resolution of this case.” On that basis the
company urged the judge to proceed with the pending motion for summary judgment.
Momient did not show at the hearing initially scheduled on that motion. When he
did appear after the hearing was rescheduled, the district court did not mention his
previous absence. Momient explained in open court that he had thought the judge
would schedule the discovery conference and never realized that he was expected to
schedule it himself. The court did not contradict that assertion, and neither did counsel
for Northwest explain her contention that Momient was responsible for scheduling the
conference. Counsel nonetheless explained that she had filed her motion “to lift the stay
and to get judgment entered because Mr. Momient took no action” after the court’s
December 2014 order. Counsel added that the company also had “moved for sanctions
in our summary judgment motion.” Immediately after these comments from
Northwest’s lawyer, the district court dismissed the action:
With respect to the merits of the complaint, it’s clear to me that the
plaintiff just sat on his rights, filed the complaint, did virtually nothing of
any significance, and what he’s pleading today is that he wants to start at a
point where probably he should have started more than a year ago.
His claim is lost. He failed to pursue it, inflicted costs upon the
defendant, and then he just sat there, and finally comes here to court not in
response to an effort particular to pursue this case, came to court because
I ordered him to come to court.
So the case is dead. . . .
Afterward the court entered a minute order stating that the defendant’s “Motion for
Judgment” had been granted, that judgment had been entered “on the remaining
claims,” and that Momient would be given time to address the “Motion for Sanctions.”
On appeal Momient contends, and even Northwest concedes, that the basis of the
dismissal is unclear. According to Momient, the decision is not defensible either as a
sanction for failure to prosecute or as a grant of summary judgment for Northwest. The
company counters that the dismissal can be upheld on either ground. We share the
parties’ uncertainty about why the case was dismissed, but we readily agree with
Momient that both of the likely reasons would be erroneous.
No. 15-2205 Page 6
To begin, the district court’s oral pronouncement cannot justify a dismissal for
failure to prosecute. A dismissal on that ground requires a district court to assess, among
other factors, the plaintiff’s noncompliance with deadlines, the effect of that
noncompliance on the court’s calendar, prejudice to the defendant, and the merit of the
lawsuit. E.g., Pendell v. City of Peoria, 799 F.3d 916, 917 (7th Cir. 2015); Salata v.
Weyerhaeuser Co., 757 F.3d 695, 699–700 (7th Cir. 2014); Kasalo v. Harris & Harris, Ltd.,
656 F.3d 557, 561 (7th Cir. 2011). But we have warned that a dismissal for failure to
prosecute “is an extraordinarily harsh sanction that should be used only in extreme
situations, when there is a clear record of delay or contumacious conduct, or where other
less drastic sanctions have proven unavailing.” Kasalo, 656 F.3d at 561. And in this case
lesser sanctions had been effective, not unavailing. The district court had granted
Northwest’s motions to compel Momient’s deposition and deemed admitted all of the
company’s requests for admission. After those rulings Momient sat for his deposition,
participated in discovery, and timely responded to Northwest’s motion for summary
judgment.
Momient’s principal claims are not complicated and depend almost entirely on
his own testimony, so we do not understand the district court’s criticism that he “did
virtually nothing of any significance.” As the court observed, litigation inflicts costs on a
defendant—both sides, actually—and Momient cannot be faulted for not compounding
those costs by taking unnecessary depositions or demanding other tangential discovery.
Likewise, we do not understand the district court’s belief that a “discovery conference”
was necessary to resolve Northwest’s motion for summary judgment. We are not
surprised that Momient, a pro se litigant, responded to several paragraphs of
Northwest’s statement of material facts by saying that he disagreed or that he intended
to cross-examine the defendant’s witnesses; many of those paragraphs lack support from
admissible evidence, and as we read his response, Momient was making that point
rather than saying he wished to engage in further discovery. Moreover, to the extent that
the case languished for several months after the district court unilaterally decided that a
discovery conference was needed, Northwest’s effort to blame Momient is disingenuous.
The company’s lawyer stood silently when Momient told the judge that he had sought
her advice about getting the case moving, and, regardless, the judge’s command that
Momient appear “at the ordered date” cannot fairly be understood to mean a date
selected by Momient. A district court has the power to manage its own docket, see Dietz
v. Bouldin, 136 S. Ct. 1885, 1891–92 (2016), and until then the judge had scheduled all
status hearings in the litigation. And, finally, although the district court might have been
on steadier ground if it had dismissed because Momient missed the first date set to hear
No. 15-2205 Page 7
Northwest’s motion “for judgment,” that absence was never mentioned by the judge.
See Johnson v. Chi. Bd. of Educ., 718 F.3d 731, 733 (7th Cir. 2013); Kasalo, 656 F.3d at 562.
We thus turn to whether the dismissal can be sustained on the basis of
Northwest’s motion for summary judgment, which we review de novo. See Spierer v.
Rossman, 798 F.3d 502, 507 (7th Cir. 2015). As a preliminary matter, Momient contends
that the district court abused its discretion in deeming him to have admitted
Northwest’s requests to admit. Rule 36(a)(3) warns litigants that a “matter is deemed
admitted unless” the party responds within the appropriate timeframe, which Momient
failed to do even after Northwest twice had agreed to extensions of the deadline. The
penalty appears harsh given that Northwest had received Momient’s answers even
before the next business day after the missed Friday deadline, but we cannot conclude
that the district court abused its discretion. See Simstad v. Scheub, 816 F.3d 893, 899
(7th Cir. 2016) (explaining that district court may relieve party of deemed admissions if
doing so would promote presentation of merits and opposing party would not be
prejudiced); Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1059 (7th Cir. 2000) (noting that
Rule 36 rulings are reviewed for abuse of discretion); Walsh v. McCain Foods Ltd., 81 F.3d
722, 726 (7th Cir. 1996) (explaining that requests to admit are deemed admitted if not
timely answered). Even so, on remand the district court will be free to reconsider this
question even though we perceive little harm to Momient from these particular Rule 36
admissions. Five of Northwest’s seven requests to admit concern whether the company’s
conduct prompted Momient to seek psychological treatment, and the seventh asked the
uncounseled Momient to admit that he does not seek attorney’s fees. Only one
request—which asked him to admit that he never told the hospital or treating physicians
not to contact him using the number for his cellphone—might seem significant to the
motion for summary judgment, and Northwest’s contention that this admission defeats
all of Momient’s claims is frivolous.
Most of those claims do lack merit, but not all. Momient’s claims under § 623 of
the Fair Credit Reporting Act, see 15 U.S.C. § 1681s-2, go nowhere because consumers
cannot privately enforce the duty of a “furnisher of information” to give credit bureaus
accurate information, see id. § 1681s-2(a), Purcell v. Bank of Am., 659 F.3d 622, 623 (7th Cir.
2011), and Momient lacks evidence that Northwest’s alleged failure to investigate his
accusations that two major credit bureaus were given misinformation caused him any
harm, see 15 U.S.C. § 1681s-2(b) (defining duties of furnisher of information after
receiving notice of dispute); Westra v. Credit Control of Pinellas, 409 F.3d 825, 827 (7th Cir.
2005) (implicitly recognizing private right of action if furnisher of information does not
conduct reasonable investigation after receiving notice of dispute); Crabill v. TransUnion,
No. 15-2205 Page 8
LLC, 259 F.3d 662, 664 (requiring consumer to show causal relation between violation of
statute and alleged harm). Likewise, none of Momient’s state-law claims could survive
summary judgment. He contends that Northwest violated the Consumer Fraud and
Deceptive Business Practices Act by falsely saying that the calls to his cellphone would
stop if he made a lawful demand and that the company had received by certified mail
only an envelope with a blank sheet inside. But Momient was not fooled by these
purported lies, which scotches any claim under this statute. See Avery v. State Farm Mut.
Auto. Ins. Co., 835 N.E.2d 801, 861 (Ill. 2005) (explaining that defendant’s deception must
be proximate cause of harm to plaintiff and that “it is not possible for a plaintiff to
establish proximate causation unless the plaintiff can show that he or she was, ‘in some
manner, deceived’ by the misrepresentation” (quoting Oliveira v. Amoco Oil Co.,
776 N.E.2d 151 (Ill. 2002)). Moreover, Momient’s tort claims widely miss the mark.
Northwest’s approximately 40 calls to his cellphone over 6 months cannot satisfy the
element of “extreme and outrageous” conduct necessary to incur liability for intentional
infliction of emotional distress. See Swearnigen-El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d
852, 863–64 (7th Cir. 2010) (defining elements of tort); Pub. Fin. Corp. v. Davis, 360 N.E.2d
765, 767–68 (Ill. 1976) (concluding that defendant’s efforts over several months to collect
debt by repeatedly calling, and appearing unannounced at, plaintiff’s home and even
telephoning her at hospital while daughter was being treated did not constitute extreme
and outrageous conduct). And while repeated, unwanted telephone calls might satisfy
the “intrusion” element of the tort of intrusion upon seclusion, Benitez v. KFC Nat.
Mgmt. Co., 714 N.E.2d 1002, 1006 (Ill. App. Ct. 1999), Momient did not introduce any
evidence that he suffered “anguish and suffering” because of those calls, see Cooney v. Chi.
Pub. Sch., 943 N.E.2d 23, 32 (Ill. App. Ct. 2010) (defining elements of intrusion upon
seclusion); Schmidt v. Ameritech Ill., 768 N.E.2d 303, 317 (Ill. App. Ct. 2002) (evaluating
whether intrusion was proximate cause of plaintiffs’ alleged suffering).
That leaves Momient’s claims under the Telephone Consumer Protection Act and
the FDCPA, and those claims, we conclude, could not be resolved at summary
judgment. The first of these acts prohibits nonconsensual, nonemergency calls to a
cellphone using an automatic dialer, 47 U.S.C. § 227(b)(1), and allows recipients of
unauthorized calls to recover actual or statutory damages, id. § 227(b)(3). See Soppet v.
Enhanced Recovery Co., 679 F.3d 637, 639 (7th Cir. 2012). The act requires express consent,
47 U.S.C. § 227(b)(1), and the burden of establishing consent rests with Northwest,
see Soppet, 679 F.3d at 643; Rules and Regulations Implementing the Tel. Consumer Prot. Act of
1991, 23 FCC Rcd 559, 564–65 (2008).
No. 15-2205 Page 9
Whether Northwest had Momient’s consent to continue calling his cellphone
using an automatic dialer is a material fact that remains in dispute. Northwest
introduced evidence that Momient had given the hospital and his treating physicians his
cellphone number, and that he also had signed paperwork agreeing to pay their bills.
See Soppet, 679 F.3d at 643 (noting FCC’s opinion that giving cellphone number to
creditor constitutes express consent for creditor later to call number regarding debt).
Northwest relied, too, on Momient’s admission that he “never instructed” the hospital or
his doctors in writing “that they were not to contact you on the cell phone number you
provided them for the purposes of collections.” Additionally, the company introduced a
photocopy of the envelope that Momient had sent by certified mail in February 2012
along with the chief operating officer’s attestation that he had “learned Plaintiff sent the
envelope that was empty.” But what the affiant “learned” is hearsay for which no
exception has been established, and, beyond that, Momient introduced a copy of his
letter and swore that he sent the letter to Northwest. Momient also said under oath that
long before this—in November 2011 when the calls started—he told the Northwest
employee “not to call my phone.” (In his complaint Momient additionally alleged that
he also sent a fax demanding that the calls cease, but at summary judgment he did not
substantiate this allegation.) So even if Northwest had consent initially, a jury reasonably
could find that Momient revoked that consent as early as November 2011 and no later
than February 2012—both dates months before the calls stopped.
This discussion carries over to Momient’s first claim under the FDCPA. That act
similarly allows for actual or statutory damages if a debt collector continues calling a
consumer after being asked in writing to stop. 15 U.S.C. §§ 1692c, 1692k; see Tinsley v.
Integrity Fin. Partners, 634 F.3d 416 (7th Cir. 2011). If a jury believes Momient’s evidence
that in February 2012 he sent Northwest more than an empty envelope or a blank sheet
of paper, then he also will prevail on this theory. Likewise, a jury could find for Momient
on his claim that Northwest failed to verify his bills as required by 15 U.S.C. § 1692g.
That section of the FDCPA requires that a debt collector, during the initial
communication with the consumer or by writing sent within five days of that
communication, disclose the amount of the debt, the name of the creditor, and the steps
to dispute the debt. See Sims v. GC Servs. L.P., 445 F.3d 959 (7th Cir. 2006); Avila v. Rubin,
84 F.3d 222 (7th Cir. 1996). At summary judgment Northwest asserted in its statement of
material facts that “in November 2011” it “sent Plaintiff a validation notice for each
account in compliance with 15 U.S.C. § 1692g, neither of which was returned
undeliverable.” Yet the only substantiation offered for this assertion is a pair of blank,
undated disclosure forms (which do not name a creditor or specify the amount of a debt)
and the chief operating officer’s unsworn answer to an interrogatory asserting that
No. 15-2205 Page 10
“Defendant” sent validations notices to Momient. Northwest did not produce copies of
the notices it purportedly sent, and neither did it say who sent them, where and when
they were sent, or how they were “sent.” In contrast, Momient swore that he never
received § 1692g notices from Northwest, and his declaration is enough to create a fact
issue for the jury. See United States v. Funds in Amount of One Hundred Thousand One
Hundred and Twenty Dollars ($100,120), 730 F.3d 711, 718 (7th Cir. 2013) (stating that
“unsubstantiated, self-serving affidavit testimony can defeat a motion for summary
judgment”). These claims must be resolved by a jury.
We have reviewed Momient’s remaining contentions, and none has merit. The
judgment dismissing Momient’s claims under the Telephone Consumer Protection Act
and the FDCPA is VACATED, and those claims are REMANDED for trial. In all other
respects, the judgment of the district court is AFFIRMED. Circuit Rule 36 will apply on
remand.