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Kovach v. Navient Solutions, Inc.

United States District Court, D. Colorado

August 2, 2018

JOSEPH A. KOVACH, Plaintiff,
v.
NAVIENT SOLUTIONS, INC., Defendant.

          ORDER ON PLAINTIFF'S RESPONSES TO DEFENDANT'S REQUESTS FOR ADMISSION NUMBERS 4 AND 5

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon the parties' simultaneous briefing regarding two of Plaintiff Joseph A. Kovach's responses to Defendant Navient Solutions, Inc.'s requests for admissions. See (Doc. ## 95, 96.) The Court orders that Plaintiff's two responses be treated as formal admissions, which have the effect of conclusively establishing a fact from issue and dispensing wholly with the need for proof of that fact.

         I. BACKGROUND

         Plaintiff obtained two Federal Stafford Student Loans and signed a Federal Stafford Loan Master Promissory Note in connection with the loans in 2007. (Doc. # 62 at 2.) Defendant has serviced Plaintiff's loans from September 7, 2011, through the present day. (Id.) In 2013, Plaintiff obtained a cellular telephone number ending in 5587, and he has retained this cellular telephone number during all relevant times. (Id.; Doc. # 61 at 1.) It is the only relevant telephone number for purposes of this case. (Doc. # 73 at 2.) It is undisputed that Plaintiff provided his telephone number to Defendant (then known as Sallie Mae, Inc.) in 2013 and again during a telephone call on June 18, 2014. (Id.) The parties stipulate that Defendant had Plaintiff's prior express consent to call his cellular telephone until at least May 28, 2015.[1]

         During the relevant time period, May 28, 2015, through August 27, 2015, Defendant called Plaintiff's cellular telephone thirty times using an automated telephone dialing system (“ATDS”). Plaintiff contends that when Defendant called him on May 28, 2015, he told Defendant's representative to “please stop calling [him].” (Doc. # 61 at 2.) The parties stipulate that on June 4, 2015, Plaintiff logged into his online account on Defendant's website. Plaintiff asserts that when Defendant called him on August 24, 2015, he “expressed . . . extreme displeasure at [Defendant's] repeated calls” to Defendant's representative. (Id. at 11 n.2.) He also contends that he “unequivocally revoked consent twice more on August 26 and 27, ” 2015. (Id.) Plaintiff characterizes Defendant's telephone calls as “annoying” and “harassing, ” and asserts that Defendant ignored his “explicit requests” to stop calling him. (Id. at 2-3; Doc. # 41 at 3.)

         Plaintiff initiated this action against Defendant on November 11, 2016, asserting one claim against Defendant pursuant to the Telephone Consumer Protection Act (“TCPA”), 42 U.S.C. § 227(b)(1)(A). (Doc. # 1; Doc. # 41 at 3-4.) The TCPA, in relevant part, provides:

It shall be unlawful for any person within the United States . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing service . . . to any telephone number assigned to a . . . cellular telephone service.

         42 U.S.C. § 227(b)(1)(A). Plaintiff seeks statutory damages of $500.00 per telephone call pursuant to 47 U.S.C. § 227(b)(3)(B), treble damages for Defendant's willful and knowing violations of the TCPA pursuant to 47 U.S.C. § 227(b)(3)(C), and injunctive relief pursuant to 47 U.S.C. § 227(b)(3)(A). (Doc. # 41 at 5.) Defendant argues that Plaintiff cannot maintain his cause of action because he provided “prior express consent” within the meaning of the TCPA, 47 U.S.C. § 227(b)(1)(A), for all calls it made by ATDS to Plaintiff's telephone number. (Doc. # 50 at 4.)

         During discovery, Defendant served Plaintiff with interrogatories, requests for admission, and requests for production on February 9, 2017. (Doc. # 96 at 2.) On March 13, 2017, Plaintiff responded to these discovery requests. See (Doc. # 95-1.) Relevant here are Plaintiff's responses to two of Defendant's requests for admission:

REQUEST FOR ADMISSION NO. 4:
Admit YOU provided YOUR cellular telephone number . . . to [Defendant] via [Defendant]'s website on June 4, 2015.
RESPONSE: Admitted.
REQUEST FOR ADMISSION NO. 5:
Admit YOU consented to contact by automated telephonic dialing technology via [Defendant]'s website on June 4, 2015.
RESPONSE: Admitted.

(Id. at 2.) During his deposition on April 28, 2017, Plaintiff confirmed ...


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