Carman v. the Cbe Group Inc., Case No. 09–2538–JAR.

• Citation: 782 F.Supp.2d 1223
• Decision Date: 23 March 2011
• Docket Number: Case No. 09–2538–JAR.
• Court: U.S. District Court — District of Kansas
• Parties: Kellee CARMAN, Plaintiff,v.The CBE GROUP, INC., Defendant.

782 F.Supp.2d 1223

Kellee CARMAN, Plaintiff,

v.The CBE GROUP, INC., Defendant.

Case No. 09–2538–JAR.

United States District Court, D. Kansas.

March 23, 2011.

Raymond E. Probst, Jr., Probst Law Firm, Kansas City, KS, John D. Barker, Krohn & Moss, Ltd., Los Angeles, CA, for Plaintiff.Daniel S. Rabin, Rachel B. Ommerman, Berman & Rabin, PA, Overland Park, KS, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiff Kellee Carman filed this lawsuit against defendant The CBE Group, Inc. (“CBE”), alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. This matter is now before the Court on CBE's Motion for Summary Judgment and for Sanctions (Doc. 38). Plaintiff moved to supplement her response with additional authority (Docs. 45, 52), and CBE moved for leave to respond (Doc. 46), which the Court grants. The Court heard oral argument on March 11, 2011, and took the matter under advisement. For the reasons stated below, the Court grants CBE's motion for summary judgment on plaintiff's FDCPA claims, and denies its request for sanctions.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is “no genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of law.” ¹ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.² A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” ³ An issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” ⁴

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁵ In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.⁶

Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” ⁷ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.⁸ Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” ⁹ To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” ¹⁰ Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.¹¹ The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.¹²

Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” ¹³ In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” ¹⁴

II. Uncontroverted Facts

Before reaching the uncontroverted facts, the Court addresses plaintiff's failure to comply with the local rule for summary judgment responses, which requires:

(1) ... [A] section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed.

(2) if the party opposing summary judgment relies on any facts not contained in the movant's memorandum, that party shall set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above.¹⁵

The response must “fairly meet the substance of the matter asserted.” ¹⁶

Instead of tracking CBE's Statement of Uncontroverted Facts, indicating those that are disputed and the reasons why, with citation to the record, plaintiff skips to Rule 56.1(b)(2), and sets forth additional facts in separately numbered paragraphs, with references to only two of CBE's uncontroverted facts she purportedly disputes. Plaintiff's failure to strictly comply with the local rules has made this Court's task much more difficult than should be necessary in ruling on a motion for summary judgment. Although it will not go so far as to deem CBE's facts uncontroverted, plaintiff and her counsel are admonished that the Court expects parties and their counsel to follow the rules of civil procedure in the future.

The following facts are either uncontroverted or viewed in the light most favorable to plaintiff. On August 30, 2009, plaintiff's delinquent Home Depot Citibank account was placed with CBE for collection. CBE attempted to collect that debt by sending plaintiff an initial letter, containing the § 1692g(a) required notices. CBE attempted to contact plaintiff at her home and work telephone numbers between August 31 and October 24, 2009. CBE called plaintiff's home number 0–4 times a day and called her work number 0–3 times a day, for a total of 149 calls to plaintiff during a two month period. ¹⁷ CBE maintained a log of all attempts to contact plaintiff, which included all telephone calls made, all contacts with plaintiff, any messages left, and when the initial validation letter was mailed. The account notes show that 92 calls were placed to plaintiff, at both her home and work numbers, in September 2009, and that 55 calls were placed to plaintiff, at both her work and home numbers, in October 2009.

CBE spoke with plaintiff, at her place of employment, on September 2, 2009. ¹⁸ The collector who spoke with plaintiff verified plaintiff's identity, provided the collector's identity, notice that the call was from a debt collector attempting to collect a debt, and notice that all information would be used for that purpose. Plaintiff said that she was expecting an important call and asked for a phone number to call CBE back. Plaintiff never returned CBE's call or called CBE at any other time. Plaintiff never told CBE that she could not receive phone calls at her place of employment.

CBE did not speak to plaintiff again and did not leave any phone messages for plaintiff. If CBE reached plaintiff's voice mail, it would hang up without leaving a message. CBE called plaintiff from several different telephone numbers.

CBE has specific policies and procedures addressing the daily number and timing of calls placed to debtors. All calls made by CBE must be at least 120 minutes apart, until contact is made or a message is left. On September 17, 2009, defendant placed a phone call to plaintiff's home phone number at 10:36 a.m. and again at 11:01 a.m. CBE's account notes for that date at 10:36 a.m. include the code “LB,” or “line busy.” When it was unable to complete the first call to plaintiff, CBE called her again at 11:01 a.m. Plaintiff filed her verified Complaint, asserting CBE violated four sections of the FDCPA: 1) § 1692c(c)(1), (2) and (3), by communicating with plaintiff after receiving a written cease and desist notice; 2) § 1692d(5), by causing the telephone to ring repeatedly and continuously with an intent to annoy or harass plaintiff; 3) § 1692d(6) by failing to provide meaningful disclosure of its identity by calling and hanging up without leaving a message; 4) § 1692e(10), by using false representations and deceptive means to collect a debt by calling and hanging up without leaving a message; and 5) § 1692e(10), by using false representations and deceptive means to collect a debt by calling plaintiff after receiving a written cease and desist notice. ¹⁹

CBE filed a Motion to Dismiss plaintiff's Complaint,²⁰ which the Court denied without prejudice after plaintiff moved to amend her Complaint. ²¹ Plaintiff filed a First Amended Complaint withdrawing all claims regarding sending a written cease and desist letter to CBE and asserting the following additional allegations: 1) CBE violated § 1692c(a)(3) by contacting her at her place of employment after being told not to; and 2) CBE violated § 1692f by using unfair means in an attempt to collect a debt by calling and hanging up without leaving voice mail messages.²²

CBE filed a Motion to Dismiss plaintiff's Amended Complaint.²³ In plaintiff's response, she withdrew her claim that CBE violated § 1692c(a)(3) and sought leave to cure the deficiency in her claim under § 1692(d)(6) to allege that CBE failed to provide meaningful disclosure of its identity. ²⁴ The Court denied CBE's motion to dismiss.²⁵ Plaintiff subsequently omitted from the Pretrial Order her § 1692d(6) claim. ²⁶ Although counsel for plaintiff orally moved to amend the Pretrial Order at oral argument, it subsequently informed the Court that it would not move to amend to add that claim.²⁷

At her deposition in July 2010, plaintiff testified that she was sent a copy of the original Complaint along with a verification page to sign, that her attorneys discussed the Complaint with her before they filed it, that she had the opportunity to read the original Complaint and review it for accuracy, and that she understood that she was verifying that everything in the Complaint was true. She testified that she told her attorneys that she informed CBE in writing that she wanted the calls to stop because she had a letter ready, but did not send it. Although the verified Complaint stated that she...