Arora v. Midland Credit Mgmt.

• Docket Number: 15-cv-6109
• Decision Date: 10 January 2023
• Parties: ASHOK ARORA, Plaintiff, v. MIDLAND CREDIT MANAGEMENT, INC. and MIDLAND FUNDING LLC, Defendants.
• Court: U.S. District Court — Northern District of Illinois

ASHOK ARORA, Plaintiff,
v.
MIDLAND CREDIT MANAGEMENT, INC. and MIDLAND FUNDING LLC, Defendants.

No. 15-cv-6109

United States District Court, N.D. Illinois, Eastern Division

January 10, 2023

MEMORANDUM OPINION AND ORDER

Marvin E. Aspen United States District Judge

Defendants Midland Credit Management (“Midland”) and Midland Funding LLC (“Funding”) move for summary judgment on all claims. (Dkt. No. 83.)^[1] At many points throughout his responses, Plaintiff Ashok Arora, who is proceeding pro se, requests leave to take more discovery, which we construe as a motion for leave to reopen discovery. For the following reasons, we grant Defendants' motion for summary judgment as to Funding and grant in part and deny in part as to Midland. We deny leave to reopen discovery.

BACKGROUND

I. Facts Considered

Before we delve into the facts of this dispute, we must explain how the factual record is established at summary judgment. On a motion for summary judgment, we must determine whether there is a “genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). “A fact is ‘material' if it is one identified by the law as affecting the outcome of the case.” Nat'l Am. Ins. Co. v. Artisan & Truckers Cas. Co.,

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796 F.3d 717, 722 (7th Cir. 2015). Federal Rule of Civil Procedure 56 dictates how we determine which material facts are genuinely disputed. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 specifies that when proving a fact through affidavit or declaration, the “affidavit or declaration . . . must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). “A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact,” we may, among other options, consider the fact undisputed for purposes of the motion. Fed.R.Civ.P. 56(e).

The parties object to us considering many of each other's statements of fact at this stage because they rely on evidence that could not be introduced in admissible form at trial. (Plaintiff's Local Rule 56.1(b)(2) Response to Defendants' Local Rule 56.1 Statement of Material Facts (“Response to SOF”) (Dkt. No. 92) ¶¶ 8-12; Defendants' Responses to Plaintiff's Local Rule 56.1(b)(3) Statement of Additional Material Facts (“Response to SOAF”) (Dkt. No. 102) ¶¶ 2-4, 7, 11, 17-30, 32-38.) In the main, we agree with Defendants that Arora has relied on inadmissible evidence and reject Arora's objections to Defendants' evidence.

First, Arora relies on some documents he found on the internet with defects that would prevent him from using them at trial. For one, he could not authenticate these documents under Federal Rule of Evidence 901, and we therefore cannot consider them at summary judgment.

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Scott v. Edinburg, 346 F.3d 752, 759-60 (7th Cir. 2003) (documents that cannot be authenticated are “inadmissible and cannot be considered for purposes of summary judgment”). When Midland identified this problem in its reply brief, (Defendants' Reply in Support of Their Motion for Summary Judgment (“Reply”) (Dkt. No. 101) at 3-4), Arora merely re-filed the same documents with prefaces explaining where on the internet he retrieved them. (Plaintiff's Sur-Reply in Opposition to Defendants' Motion for Summary Judgment (“Sur-Reply”) (Dkt. No. 105) at 2-4.) But this does not cure the authenticity issue; with the information he provided, Arora establishes, at most, that these documents appear somewhere on the internet, not that they are what they purport to be. Fed.R.Evid. 901(a); Silversul Indus., Inc. v. PPG Indus., Inc., 296 F.Supp.3d 936, 943 n.5 (N.D. Ill. 2017) (“[W]ebsites . . . must generally pass muster under . . . Rule 901 ....”); Pryor v. City of Chicago, 726 F.Supp.2d 939, 943-44 (N.D. Ill. 2010) (refusing to consider on summary judgment documents for which only authentication was from a person who “had no personal knowledge as to their source or authorship”).

Moreover, even if Arora could authenticate the documents, he seeks to introduce them to establish the truth of their contents, making them all hearsay with no applicable exception. Fed.R.Evid. 801; Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (“A party may not rely upon inadmissible hearsay to oppose a motion for summary judgment.”). We therefore do not consider Exhibit 6 (a purported proposal from Noble systems), Exhibit 8 (a purported excerpt of a manual on the ATOMIX database), or Exhibit 15 (a purported printout of a Navy Federal Credit Union website) to Arora's statement of additional facts; or Exhibit 4 (a purported printout of a WebMD page) or Exhibit 5 (same) to Arora's response to Defendants' statement of facts.

Second, the parties object to some facts in party declarations. Where those factual propositions fall within the party's personal knowledge-such as what the other side of a phone

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call sounded like, how the declarant's body felt, or how much work experience the declarant has-the declaration is competent evidence. Fed.R.Evid. 602; (e.g., Exhibit 13: Declaration of Plaintiff (“Arora Dec.”) (Dkt. No. 99-13) ¶ 7 (Arora heard “dead qui[et]” on the other end of 22 phone calls); id. ¶ 16 (Arora had trouble sleeping from December 2013 to July 2014); id. ¶ 25 (Arora stopped taking blood pressure medication in 2020); id. ¶ 27 (Arora has over 20 years of experience working with relational databases).) For the same reason, where Defendants' declarations are based on their authorized agent's personal knowledge after reviewing business records (or lack thereof), the statements at issue can be considered. (Declaration of Midland Credit Management, Inc. (“Midland Dec.”) (Dkt. No. 85) at 11 ¶ 2 (“I have access to and routinely review records maintained by [Midland]. I am authorized to make this affidavit on behalf of [Midland]. The statements made in this Affidavit are based on my personal knowledge after review of [Midland's] business records.”); Univ. Healthsystem Consortium v. UnitedHealth Grp., Inc., 68 F.Supp.3d 917, 921 (N.D. Ill. 2014) (allowing corporate representative declaration at summary judgment); see also Fed.R.Evid. 803(6)-(7) (creating exceptions to hearsay rule for both presence and absence of business records). But where Arora's declaration relies on hearsay-relaying third-party, out-of-court statements for their truth-we do not consider them here. Fed.R.Civ.P. 56(c)(4); Fed.R.Evid. 802; (e.g., Arora Dec. ¶ 22 (declaring that “Another collection agency . . . disclosed . . . that . . . Elizabeth Adams . . . was born in the year 1989” to prove that Adams was born in 1989); id. ¶ 28 (declaring that a doctor told Arora his blood pressure was normal to prove that Arora's blood pressure was normal).)

Third, Arora attempts to extrapolate from some of the admissible facts about Midland's dialing technology by offering his own expert interpretation of those facts based on his private experimentation with a database and theoretical understanding of relational databases.

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(Plaintiff's Local Rule 56.1(b)(3) Statement of Additional Material Facts (“SOAF”) (Dkt. No. 99) ¶¶ 33-37.) Arora argues that although the manual in the record describing this technology (“Noble Manual”) does not discuss or contemplate the use of a “random or sequential number generator” at any point, it has the capacity to use one. (Plaintiff's Response and Memorandum in Opposition to Defendants' Motion for Summary Judgment (“Opp.”) (Dkt. No. 100) at 5-9.) In his statement of additional facts, Arora hypothesizes without citation to anything in the record that the technology's database could produce sequential numbers if the user follows a seven-step process of Arora's creation to (1) manually input sequential numbers into a database (SOAF ¶ 36); or (2) enter a single number in the database and fill in subsequent entries with the number 0, causing the database to generate sequential numbers. (Id. ¶ 37.) Arora insists that his theoretical approach is valid because he has “over twenty . . . years of experience working with relational databases including INFORMIX.” (Id. ¶ 33.) Defendants object to these purported facts, arguing that Arora “is not an expert on dialing technology, and his lay opinions and conclusions are . . . inadmissible” and observing that Arora “cites no source of authority” for his sequential-number-generation theories. (Response to SOAF ¶¶ 29, 36-37.) In Arora's Sur-Reply, he submits for the first time a document purporting to show that his theoretical, sevenstep manipulations of the databases work in practice, too. (Exhibit 23: Sequential Number Generation Test Results (“Arora Expert Summary”) (Dkt. No. 105-8) at 2-5.)

We do not doubt Arora's skill and experience. (E.g., Exhibit D: Deposition of Ashok Arora (“Arora Dep.”) (Dkt. No. 85) at 19 (describing Arora's prestigious educational background).) But Arora offered no evidence to support the additional factual statements at issue before surprising Defendants with his private and undisclosed experimentation in his Sur-Reply. (SOAF ¶¶ 36-37; Sur-Reply at 10-11; Arora Expert Summary at 2-5.) We therefore

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conclude that Arora forfeited the chance to adduce factual support to paragraphs 36 and 37 of his statement of additional facts and do not consider Arora's Exhibit 23. Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“[T]he district court is entitled to...