United States District Court, D. Colorado
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 ...