United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. THARP, JR. UNITED STATES DISTRICT JUDGE
Samar Kayyal asserts that the defendant, Enhanced Recovery
Company (“ERC”), violated provisions of the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq., by repeatedly calling
her in an attempt to collect a debt. It is undisputed that
Kayyal did not owe the debt; the dispute centers around
whether ERC’s calls-some 40 calls over a three-month
period-violated the FDCPA’s prohibitions on harassing
or deceptive conduct. ERC says it did not and has filed a
motion for summary judgment. There are material fact disputes
relevant to these questions that require a jury’s
resolution, however, so ERC’s motion for summary
judgment is denied.
a debt collector; it services debts on behalf of its clients.
In December 2016, ERC was retained by AT&T to service a
debt that a third party (unidentified in the record) had
incurred to AT&T. ERC was provided with information such
as the name of the debtor and the amount of the debt owed.
Through one of its vendors, a company named TLO, ERC
conducted a telephone number “scrub, ” which is a
process by which it attempts to find telephone numbers
associated with a particular person. According to ERC, the
“scrub” results revealed that there was a
“high probability” that a particular telephone
number was associated with the debtor. Id. ¶
11. Notwithstanding this optimistic assessment, however, the
number belonged not to the debtor but to Kayyal.
sometime in December 2016 through March 7, 2017, ERC made
approximately forty calls to Kayyal’s cell phone in an
effort to contact the debtor. During this period, ERC generally
made no more than one call in a day, but on four or possibly
five days, it called Kayyal’s number twice. Kayyal
sometimes answered the calls; on at least some occasions the
caller referred to ERC and Kayyal told the caller to stop
calling and/or that they had the wrong number. On other
occasions, Kayyal simply hung up. When Kayyal did not answer,
ERC left no voice mail message. Kayyal learned that the calls
were from a debt collector by Googling ERC’s name. No.
one calling from ERC, however, told her that she owed a debt
until the final call she received.
call was made on March 7, 2017. On that date, an ERC
employee, Christine Wilcox, asked to speak with the debtor.
Kayyal, who picked up the phone, asked why she was being
called; the caller told her that she owed a debt. Kayyal told
ERC to “stop calling” and to “take me off
your phone list.” She also said that she was going to
call her attorneys. ERC did not place any further calls to
Kayyal’s telephone number after that occasion. This was
the only call in which Kayyal had any conversation with
someone calling on ERC’s behalf. As to all of the other
calls Kayyal received, either she or the caller hung up after
Kayyal answered and told the caller to “stop
calling” or that they were calling the wrong number.
Kayyal contends that she informed ERC at least 20 times that
ERC had the wrong number and asked ERC to stop calling her.
on ERC’s repeated calls, Kayyal filed this suit in
April 2017, alleging violations of the FDCPA and the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, and the Illinois Consumer Fraud and
Deceptive Practices Act (“ICFA”), 815 ILCS 505/1
et seq. ERC has moved for summary judgment.
shall grant 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). A factual dispute is genuine if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
reviewing a motion for summary judgment, the Court
“construe[s] all facts in the light most favorable to .
. . the nonmoving party, who must point to specific facts
showing that there is a genuine issue for trial, and
inferences relying on mere speculation or conjecture will not
suffice.” DiPerna v. Chicago Sch. of Prof.
Psych., 893 F.3d 1000, 1006 (7th Cir. 2018) (internal
Plaintiff's Withdrawal of Certain Legal Theories
complaint, Kayyal invoked a range of legal theories,
contending that she was entitled to relief under the TCPA,
the ICFA, and various provisions of the FDCPA. In response to
ERC’s motion for summary judgment, Kayyal purports to
withdraw several "claims, " but what she is really
doing is abandoning legal theories rather than dismissing
claims. The complaint in this case asserts only one claim for
relief, that arising from the series of phone calls made to
her by ERC, but it also asserts multiple legal theories as to
why the facts of her claim entitle her to relief from ECR.
But asserting multiple legal theories does not proliferate
the number of claims a complaint sets forth. A “claim
is the aggregate of operative facts which give rise to a
right enforceable in the courts. One claim supported by
multiple theories does not somehow become multiple
claims." Sojka v. Bovis Lend Lease, Inc., 686
F.3d 394, 399 (7th Cir. 2012); see also NAACP v. Am.
Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir.1992)
(“One set of facts producing one injury creates one
claim for relief, no matter how many laws the deeds
that understanding, I construe Kayyal’s withdrawal of
claims as a waiver of any right to legal relief premised on
violations of the TCPA, the ICFA, or §§ 1692f and
1692e(11) of the FDCPA. In that regard, it is immaterial
whether the theories are expressly withdrawn "with
prejudice" or without; Kayyal has made no argument that
any of these legal theories entitle her to relief, and so has
surrendered any claim for relief predicated on these theories
in the context of this case or any other. The only legal
theories that Kayyal is continuing to advance are those under
15 U.S.C. § 1692d and § 1692e, both of which are
part of the FDCPA, and it is to those theories that I now
The Remaining FDCPA Theories
Claims under FDCPA ...