Datta v. Asset Recovery Solutions, LLC

• Decision Date: 07 June 2016
• Docket Number: Case No. 15-CV-00188-LHK
• Citation: 191 F.Supp.3d 1022
• Parties: Meena Arthur DATTA, Plaintiff, v. ASSET RECOVERY SOLUTIONS, LLC, Defendant.
• Court: U.S. District Court — Northern District of California

191 F.Supp.3d 1022

Meena Arthur DATTA, Plaintiff,

v.ASSET RECOVERY SOLUTIONS, LLC, Defendant.

Case No. 15-CV-00188-LHK

United States District Court, N.D. California, San Jose Division.

Signed June 7, 2016

O. Randolph Bragg, Horwitz,Horwitz & Associates, Chicago, IL, Raeon Rodrigo Roulston, Fred W. Schwinn, Consumer Law Center, Inc., San Jose, CA, for Plaintiff.

David Ian Dalby, Hinshaw & Culbertson LLP, San Francisco, CA, Justin Michael Penn, Hinshaw and Culbertson, Chicago, IL, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

LUCY H. KOH, United States District Judge

Plaintiff Meena Arthur Datta ("Plaintiff") brings this action against Defendant Asset Recovery Solutions, LLC ("Defendant").¹ Before the Court are the parties' cross-motions for summary judgment. ECF No. 79 ("Def. Mot."); ECF No. 80 ("Pls. Mot."). Having considered the parties' submissions, the relevant law, and the record in this case, the Court GRANTS IN PART and DENIES IN PART Defendant's motion for summary judgment and DENIES Plaintiff's motion for summary judgment.

I. BACKGROUND

A. Factual Background

This case arises out of Defendant's attempt to collect upon the consumer debts of Plaintiff and others similarly situated. Plaintiff alleges that, at some prior point in time, she incurred a consumer debt issued by HSBC Bank Nevada, N.A., for personal, family, or household purposes. ECF No. 21 ¶ 8. This debt was later consigned, placed, or otherwise assigned to Defendant for collection. Id. ¶ 9.

Plaintiff states that Defendant sent her a collection letter on January 14, 2014. Id. ¶¶ 10, 12. This collection letter was sent in a glassine window envelope. Id. ¶ 14. Plaintiff alleges that the collection letter and glassine window envelope were designed so as to disclose (1) Plaintiff's name and address, (2) Plaintiff's account number, and (3) a bar code containing the same information to anyone handling or processing the envelope while in transit to Plaintiff. Defendant disputes these allegations, and states that the number and bar code do not identify Plaintiff. Furthermore, the letter Plaintiff received lists Defendant's business name, "Asset Recovery Solutions, LLC," in the return address. Id. ¶¶ 17–18. Plaintiff states that this name indicates that the letter was sent by a company engaged in the business of debt collection. Id. ¶ 19. Finally, Plaintiff avers that Defendant routinely sends collection letters in this manner. Id. ¶¶ 20–22.

B. Procedural History

Plaintiff filed her initial complaint on January 13, 2015. ECF No. 1. On March 4, 2015, Plaintiff filed the First Amended Complaint ("FAC"). ECF No. 21. The FAC asserts two causes of action, based on violations of (1) the federal Fair Debt Collection Practices Act ("FDCPA"), and (2) California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA"). Defendant answered the FAC on March 18, 2015. ECF No. 23. On October 15, 2015, Plaintiff moved for class certification, seeking certification of the following class pursuant to Federal Rule of Civil Procedure 23(b)(3) :

(i) all persons with addresses in California, (ii) to whom Defendant sent, or caused to be sent, a collection letter in the form of Exhibit "1" in an envelope in the form of Exhibit "2," (iii) in an attempt to collect an alleged debt originally owed to HSBC Bank Nevada, N.A., (iv) which was incurred primarily for personal, family, or household purposes, (v) which were not returned as undeliverable by the U.S. Post Office, (vi) during the period one year prior to the date of filing this action through the date of class certification.

On March 18, 2016, the Court granted Plaintiff's motion for class certification. ECF No. 66. The parties subsequently filed a proposed Class Notice and Opt Out Form on April 14, 2016, and the Court suggested various amendments on April 18, 2016. The parties adopted the Court's changes in full on April 19, 2016. ECF No. 77. The amended Notice and Opt Out Form were then sent to the Class, with an Opt Out deadline of May 23, 2016. There have been 33 opt outs from a Class of 11,383 individuals. ECF No. 93 at 3.

On April 28, 2016, the parties filed their cross-motions for summary judgment. On May 12, 2016, Defendant filed a response to Plaintiff's motion for summary judgment, and on May 19, 2016, Plaintiff filed a reply. ECF No. 83 ("Def. Opp'n"); ECF No. 85 ("Pls. Reply"). Likewise, on May 12, 2016, Plaintiff filed a response to Defendant's motion for summary judgment, and on May 19, 2016, Defendant filed a reply. ECF No. 84 ("Pls. Opp'n"); ECF No. 87 ("Def. Reply"). On May 12, 2016, Plaintiff also filed an evidentiary objection to the declaration of Steve Fishbein. ECF No. 84-1.

II. LEGAL STANDARD

Summary judgment is appropriate if, viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party, there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 321, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At the summary judgment stage, the Court "does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial." House v. Bell , 547 U.S. 518, 559–60, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). A fact is "material" if it "might affect the outcome of the suit under the governing law," and a dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249, 106 S.Ct. 2505 (citations omitted).

The moving party bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. , 477 U.S. at 323, 106 S.Ct. 2548. When the party opposing summary judgment has the burden of proof at trial, the party moving for summary judgment need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. If the moving party meets its initial burden, the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, "specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 250, 106 S.Ct. 2505.

III. DISCUSSION

A. Evidentiary Objection

In moving for summary judgment, Defendant included a declaration from Steve Fishbein ("Fishbein"). In his declaration, Fishbein explained that he had served as Defendant's CEO for the past six years, and had worked in the financial services industry for the past thirty years. ECF No. 79-4 ("Fishbein Decl.") ¶¶ 5–7. Fishbein further stated that he was "familiar with the operational procedures and drafting of form letters [that Defendant] uses in its line of business, as well as the practices of [Defendant's] letter vendor." Id. ¶ 8. According to Fishbein, "[t]he series of characters that appear above [Defendant's] customers' names and are visible through the glassine window of its envelope" are not, as Plaintiff contends, Plaintiff's delinquent account number. Id. ¶ 9. Instead, these characters "are unique identifiers assigned by [Defendant's] letter vendor for purposes of tracking returned mail." Id. Thus, these "characters... only have significance to" Defendant's letter vendor. Id. ¶ 10.

Fishbein also asserts that the bar code is another "means to track the letters internally by [Defendant's letter] vendor." Id. ¶ 12. Again, "[t]he information used to track returned mail that can be utilized by scanning the bar code only has relevance to [Defendant] and its letter vendor."

Id. ¶ 13. Finally, Fishbein concludes that "[i]t is not a business practice for [Defendant] to disclose its customers' account information or personal identifying information to third parties." Id. ¶ 15.

Plaintiff has moved to strike Fishbein's statements that the reference number and bar code on Plaintiff's envelope only have significance to Defendant and Defendant's letter vendor. ECF No. 84-1 at 2. Plaintiff has also objected to Fishbein's statement that it is not Defendant's business practice to disclose customer account information to third parties. Id. According to Plaintiff, these statements run afoul of Federal Rules of Evidence 602 and 701, which govern lay witness testimony.

Plaintiff's objections lack merit. Federal Rule of Civil Procedure 56, the rule governing summary judgment motions, provides that a court may consider a declaration so long as the declaration is "made on personal knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the... declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Fishbein's statements satisfy these three requirements. As CEO, Fishbein is familiar with the relationships that exist between Defendant and its letter vendors. That familiarity sufficiently establishes the foundation necessary for personal knowledge. In addition, Fishbein's declaration sets out facts that would be relevant and admissible at trial. Whether or not the reference number and bar code on Plaintiff's envelope represent Plaintiff's delinquent account number is the central dispute in this action. Finally, Fishbein satisfies the necessary requirements for competence.

As an additional point, although a party need not, at summary judgment, "necessarily have to produce evidence in a form that would be admissible at trial," the evidence here would also be admissible under both Federal Rule of Evidence 602 and 701. Fraser v. Goodale , 342 F.3d 1032, 1036 (9th Cir.2003). Rule 602 states that a "witness may testify to a matter only if evidence is introduced sufficient to support a...