United States District Court, S.D. Florida
ORDER ON MOTION FOR SUMMARY JUDGMENT
BLOOM, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant Capital One
Bank (USA) N.A.’s (“Defendant” or
“Capital One”) Motion for Summary Judgment, ECF
No.  (the “Motion”). Plaintiff Lawanda
Johnson (“Plaintiff” or “Johnson”)
filed a response, ECF No.  (the “Response”),
to which Defendant filed a reply, ECF No.  (the
“Reply”). The Court has carefully considered the
Motion, all opposing and supporting submissions, the record
in this case and the applicable law, and is otherwise fully
advised. For the reasons set forth below, the Motion is
granted in part and denied in part.
case arises as a result of a series of unwanted telephone
calls. In her Complaint, ECF No. , Johnson alleges that
Capital One attempted to collect a debt arising from a Dress
Barn Capital One credit card account. In its attempts to
collect on the debt, Capital One allegedly placed a series of
telephone calls to Johnson’s cellular phone after she
revoked her consent to receive calls from an automated
telephone dialing system (“ATDS”). As a result,
Plaintiff commenced this action against Capital One asserting
claims for violation of the Telephone Consumer Protection
Act, 47 U.S.C. § 227 (“TCPA”) and the
Florida Consumer Collection Practices Act
(“FCCPA”), Fla. Stat. §§
opened a Dress Barn credit card account on October 15, 2015.
Defendant’s Statement of Material Facts (“Def.
SOMF”), ECF No.  ¶¶ 1, 3. She regularly
used her Dress Barn account until her last purchase on June
6, 2016. Id. ¶¶ 4-5. Thereafter, Johnson
defaulted on the Dress Barn account by failing to make
payments. Id. ¶ 6.
card member agreement governing Johnson’s Dress Barn
account states in pertinent part:
Communications. You agree that we may
communicate with you by mail, telephone, email, fax,
prerecorded message, automated voice, text message or other
means allowed by law regarding your Account.
You agree that we may contact you at any telephone number
(including a mobile telephone number that you provide us) and
use an automated telephone dialing system or similar device
to do so. You agree that we may monitor or record any
conversation or other communication with you.
Id. ¶ 8. On January 5, 2017, Johnson accessed
her Dress Barn account online by signing in with her username
and password. Id. ¶¶ 9-10. In her account,
she changed her telephone number to a 2114 number.
Id. ¶ 11. Capital One regularly maintains logs
of calls and maintained a call log of all calls made to the
2114 number. Id. ¶¶ 13-14. Capital One
first called the 2114 number on October 10, 2017.
Id. ¶ 19. The call log reflects a conversation
that took place on November 5, 2017, during which Johnson
stated in a fake British accent that the agent had reached
the wrong number. Id. ¶¶ 28, 31;
Plaintiff’s Opposing Statement of Material Facts
(“Pl. SOMF”), ECF No.  ¶ 31, 35; ECF No.
. The call prompted the agent to make a “do not
call again” entry in the call log. Def. SOMF ¶ 31.
Nevertheless, because the 2114 number belonged to Johnson,
the calls continued. Id. ¶ 32.
claims she revoked her consent to receive calls to the 2114
number in September 2017 by asking Capital One to stop
calling because she could not make payments in the aftermath
of Hurricane Irma, and again on May 9, 2018. However, the
parties agree that no calls were made to the 2114 number in
September 2017. Id. ¶¶ 33-35; Pl. SOMF
¶ 35. Johnson claims she revoked her consent on May 9,
2018, by asking not to be called using an auto dialer or
prerecorded message, but Capital One’s call log does
not reflect that request. Def. SOMF ¶ 36-37. Johnson
kept her own log of calls, which provide written guidance
from her attorney to “ONLY REVOKE 1 TIME PER DEBT
COLLECTOR: Tell them: ‘DO NOT CALL ME USING AN
AUTODIALER OR PRE-RECORDED MESSAGE ANYMORE.’”
Id. ¶¶ 38-40.
addition, Johnson asserts that prior to being connected to a
representative on May 9, 2018, and on every call thereafter,
there was a noticeable pause. Pl. SOMF ¶¶ 46-47.
Johnson also asserts that she received a call from Capital
One on May 16, 2018, during which she spoke to a
representative named Bill, who told her that Capital One had
used an autodialer. Id. ¶ 48. In her
Declaration, Johnson further states that she received
prerecorded voicemail messages from Capital One on May 19,
2018, and on at least thirty-six (36) other occasions.
Id. ¶ 49. Capital One disputes these facts.
Capital One now moves for summary judgment on Johnson’s
TCPA and FCCPA claims.
may grant a motion for 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(a). The parties may support their
positions by citation to the record, including, inter
alia, depositions, documents, affidavits, or
declarations. See Fed. R. Civ. P. 56(c). An issue is
genuine if “a reasonable trier of fact could return
judgment for the non moving party.” Miccosukee
Tribe of Indians of Fla. v. United States, 516 F.3d
1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is
material if it “might affect the outcome of the suit
under the governing law.” Id. (quoting
Anderson, 477 U.S. at 247-48). The court views the
facts in the light most favorable to the non-moving party and
draws all reasonable inferences in the party’s favor.
Crocker v. Beatty, 886 F.3d 1132, 1134 (11th Cir.
2018). “The mere existence of a scintilla of evidence
in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which a jury could
reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 252. The Court does not weigh
conflicting evidence. See Skop v. City of Atlanta,
Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting
Carlin Comm’n, Inc. v. S. Bell Tel. & Tel.
Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).
moving party shoulders the initial burden to demonstrate the
absence of a genuine issue of material fact. See Shiver
v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a
movant satisfies this burden, “the nonmoving party
‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’”
Ray v. Equifax Info. Servs., L.L.C., 327 Fed.Appx.
819, 825 (11th Cir. 2009) (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986)). Instead, “the non-moving party ‘must
make a sufficient showing on each essential element of the
case for which he has the burden of proof.’”
Id. (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986)). The non-moving party must produce
evidence, going beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories,
and admissions on file, designating specific facts to suggest
that a reasonable jury could find in the non-moving
party’s favor. Shiver, 549 F.3d at 1343.
resolving the issues presented under Fed.R.Civ.P. 56,
“the court may not weigh conflicting evidence to
resolve disputed factual issues; if a genuine dispute is
found, summary judgment must be denied.” Carlin
Commc’n, Inc. v. Southern Bell Tel. & Tel.
Co., 802 F.2d 1352, 1356 (11th Cir. 1986); see also
Aurich v. Sanchez, No. 08-80113-CIV, 2011 WL 5838233, at
*1 (S.D. Fla. Nov. 21, 2011) (“If a reasonable fact
finder could draw more than one inference from the facts, and
that inference creates an issue of material fact, then the
court must not grant summary judgment.” (citing
Hairston v. Gainesville Sun Publ’g Co., 9 F.3d
913 (11th Cir. 1993)). Even “where the parties agree on
the basic facts but disagree about the factual inferences
that should be drawn from those facts,” summary
judgment may be inappropriate. Warrior Tombigbee Transp.
Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th
summary judgment is inappropriate where the Court would be
required to weigh conflicting renditions of material fact or
determine witness credibility. See Hairston, 9 F.3d
at 919; see also Mize v. Jefferson City Bd. of
Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is
not the court’s role to weigh conflicting evidence or
to make credibility determinations; the non-movant's
evidence is to be accepted for purposes of summary
judgment.”); see also Strickland v. Norfolk S. Ry.
Co., 692 F.3d 1151, 1154 (11th Cir. 2012)
(“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge, whether he
[or she] is ruling on a motion for summary judgment or for a
directed verdict.” (quoting Anderson, 477 U.S.
at 255)); Gary v. Modena, No. 05-16973, 2006 WL
3741364, at *16 (11th Cir. Dec. 21, 2006) (Fed. R. Civ. P. 56
precludes summary judgment where court would be required to
reconcile conflicting testimony or assess witness