F.T.C. v. Think Achievement Corp.

• Citation: 144 F.Supp.2d 993
• Decision Date: 29 September 2000
• Docket Number: No. 2:98-CV-12-TS.,2:98-CV-12-TS.
• Parties: FEDERAL TRADE COMMISSION, Plaintiff, v. THINK ACHIEVEMENT CORP., et al., Defendants, and Linda Tankersley, Relief Defendant.
• Court: U.S. District Court — Northern District of Indiana

144 F.Supp.2d 993

FEDERAL TRADE COMMISSION, Plaintiff, v. THINK ACHIEVEMENT CORP., et al., Defendants, and Linda Tankersley, Relief Defendant.

No. 2:98-CV-12-TS.

United States District Court, N.D. Indiana, Hammond Division.

September 29, 2000.

COPYRIGHT MATERIAL OMITTED

Gregory A. Ashe, Federal Trade Commission, Washington, DC, for plaintiff.

Gregory J. Sarkisian, Sarkisian and Fleming, Portage, IN, Nick J. Thiros, Cohen and Thiros, Merrillville, IN, for defendants.

MEMORANDUM OF DECISION AND ORDER

SPRINGMANN, United States Magistrate Judge.

This matter is before the Court on a Motion for Summary Judgment filed by the Plaintiff, the Federal Trade Commission ("Commission"), on June 8, 1999, against the corporate Defendants, Think Achievement Corp., National Service, Inc., The Answering Service, Inc., The Rosewood Group, New Age Advertising Corp., H.D. Davidson Advertising Corp., Career Advancement Corp., and Information Delivery Systems, Inc. (collectively, "Corporate Defendants"), the individual Defendant William H. Tankersley ("Tankersley"), and the Relief Defendant Linda Tankersley. The Defendant, Tankersley, and the Relief Defendant, Linda Tankersley, filed their Response on August 8, 1999. The Plaintiff filed its Reply on September 20, 1999. For the following reasons and pursuant to Federal Rule of Civil Procedure 56(d), the Plaintiff's Motion for Summary Judgment is GRANTED IN PART.¹

STANDARD OF REVIEW

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[S]ummary judgment is appropriate — in fact, is mandated — where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party." Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.1994) (citations and quotation marks omitted). Thus, a summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

No genuine issue of material fact exists for trial where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir.1992). Stated positively, a genuine issue for trial only exists where there is sufficient evidence favoring the non-movant for a jury to return a verdict for that party. Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1210 (7th Cir.1993). Furthermore, not every factual dispute creates a barrier to summary judgment; instead, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The inquiry involved in ruling on the motion for summary judgment implicates the substantive evidentiary standard of proof, for example, preponderance of the evidence, that would apply at trial. Id. at 252, 254, 106 S.Ct. 2505; Jean v. Dugan, 20 F.3d 255, 263 (7th Cir.1994).

A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party may discharge its "initial responsibility by simply `showing'—that is, pointing out to the districtcourt— that there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. 2548. When the non-moving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id. at 323, 325, 106 S.Ct. 2548; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir.1994); Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). However, the moving party may, if it chooses, support its motion for summary judgment with affidavits or other materials and thereby shift to the non-moving party the burden of showing that an issue of material fact exists. Kaszuk v. Bakery & Confectionery Union & Indus. Intern. Pension Fund, 791 F.2d 548, 558 (7th Cir. 1986); Bowers v. DeVito, 686 F.2d 616, 617 (7th Cir.1982); Faulkner v. Baldwin Piano & Organ Co., 561 F.2d 677, 683 (7th Cir.1977). Under Local Rule 56.1, the moving party must file with the court a "Statement of Material Facts," supported by appropriate citation to the record, as to which the moving party contends there is no genuine issue.

Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. F.R.C.P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994). Federal Rule of Civil Procedure 56(e) establishes: "the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." See also Anderson, 477 U.S. at 248-50, 106 S.Ct. 2505. Thus, to demonstrate a genuine issue of fact, the non-moving party must do more than raise some metaphysical doubt as to the material facts; the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; Juarez, 957 F.2d at 322. Under Local Rule 56.1, the party opposing the motion shall file any affidavits or other documentary material controverting the movant's position, including a "Statement of Genuine Issues," supported by appropriate citation to the record, that outlines the material facts that the non-movant contends present genuine issues of fact that must be litigated. See also Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994).

In viewing the facts presented on a motion for summary judgment, the court must construe all facts in the light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party. NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir.1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994); Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). The court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; Doe, 42 F.3d at 443. Furthermore, in determining the motion for summary judgment, the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the "Statement of Genuine Issues" filed in opposition to the motion. L.R. 56.1

PROCEDURAL BACKGROUND

The Commission commenced this civil action on January 15, 1998, alleging that the Defendants engaged in deceptive acts or practices in violation of section 5(a) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 45(a), in the course of telemarketing career advisory goods and services.² Upon motion by the Commission, this Court issued an ex parte Temporary Restraining Order ("TRO") on January 15, 1998, and a second Temporary Restraining Order ("Second TRO") on February 10, 1998, enjoining the Defendants' alleged unlawful practices, freezing the Defendants' assets, appointing a temporary receiver, and ordering the Defendants to show cause why a preliminary injunction should not issue. Preliminary injunctions were entered on February 10, 1998, and March 31, 1998.

On July 8, 1998, all parties consented to have this case assigned to a United States Magistrate Judge to conduct any and all proceedings in the case and order the entry of a final judgment, and the Court issued its Notice of Assignment. Accordingly, this Court has authority to decide the merits of this case under 28 U.S.C. § 636(c)(1).

On October 22, 1998, the Plaintiff filed its Second Amended Complaint for Injunction and Other Equitable Relief. On October 22, 1998, the Defendants filed their Answer to Amended Complaint for Injunction and Other Equitable Relief. On June 8, 1999, the Commission filed its Motion for Summary Judgment against the Corporate Defendants, Tankersley, and Linda Tankersley pursuant to Federal Rule of Civil Procedure 56.³ On August 2, 1999 Tankersley and Linda Tankersley filed a Response to the Plaintiff's Motion. On September 13, 1999, Tankersley and Linda Tankersley filed a Supplementation of their Response. On September 20, 1999, the Commission filed its Reply. The Corporate Defendants did not file any opposition.

MATERIAL FACTS

A. ...