Fed. Trade Comm'n v. Lanier Law, LLC

• Citation: 194 F.Supp.3d 1238
• Decision Date: 07 July 2016
• Docket Number: Case No. 3:14-cv-786-J-34PDB
• Parties: FEDERAL TRADE COMMISSION, Plaintiff, v. LANIER LAW, LLC, et al., Defendants.
• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida

194 F.Supp.3d 1238

FEDERAL TRADE COMMISSION, Plaintiff,

v.LANIER LAW, LLC, et al., Defendants.

Case No. 3:14-cv-786-J-34PDB

United States District Court, M.D. Florida, Jacksonville Division.

Signed July 7, 2016

Harold E. Kirtz, Marcela C. Mateo, Anna M. Burns, Gideon E. Sinasohn, Federal Trade Commission, Atlanta, GA, for Plaintiff.

Michael Winston Lanier, Michael W. Lanier, PA, Brandon A. Stanko, Law Office of Brandon A. Stanko, LLC, Jacksonville, FL, Catherine Faughnan, Law Office of Catherine R. Faughnan, Orange Park, FL, for Defendants.

ORDER

MARCIA MORALES HOWARD, United States District Judge

THIS CAUSE is brought by the Federal Trade Commission (FTC), pursuant to its authority under section 5 of the Federal Trade Commission Act (FTC Act), 15 U.S.C. § 45, against Defendants Lanier Law LLC, Fortress Law Group LLC, Surety Law Group LLP (Surety), Liberty & Trust Law Group of Florida LLC (Liberty & Trust), Fortress Law Group, PC (Fortress DC), Redstone Law Group, LLC (Redstone DC), Michael W. Lanier, Rogelio Robles and Edward William Rennick III (Defendants).¹ The FTC alleges that Defendants violated Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), the Mortgage Assistance Relief Services Rule (MARS Rule), 16 C.F.R. Part 322, recodified as Mortgage Assistance Relief Services (Regulation O), 12 C.F.R. Part 1015 (Regulation O), and the Telemarketing Sales Rule (TSR), 16 C.F.R. Part 310, in connection with the marketing and sale of mortgage assistance relief services. See generally Plaintiff Federal Trade Commission's Amended Complaint for Permanent Injunction and Other Equitable Relief (Doc. 91; Amended Complaint), filed December 22, 2014. At the outset of these proceedings, on the FTC's motion, the Court entered a temporary restraining order against Defendants Lanier Law LLC, Fortress Law Group LLC, Surety, Liberty & Trust, and Michael Lanier. See Ex Parte Temporary Restraining Order with an Asset Freeze and Other Equitable Relief (Doc. 10; TRO), entered July 11, 2014. Thereafter, the Court dissolved a portion of the TRO and granted, in part, the FTC's request for preliminary injunctive relief against those Defendants with respect to Counts I, III, and VII of the original Complaint (Doc. 4). See Preliminary Injunction Order with Asset Freeze and Other Equitable Relief (Doc. 59), entered August 1, 2014. The FTC amended the complaint to add additional Defendants and after appropriate briefing the Court expanded the preliminary injunction to those Defendants as well. See Preliminary Injunction Order with Asset Freeze and Other Equitable Relief (Doc. 115), entered February 6, 2015.

This matter is currently before the Court on Plaintiff Federal Trade Commission's Motion and Memorandum for Summary Judgment (Doc. 246; FTC Motion), filed on December 29, 2015, and Defendant Michael W. Lanier's Motion for Partial Summary Judgment (Doc. 248; Lanier Motion), filed on December 30, 2015.² On January 20, 2016, Defendants Fortress DC and Rogelio Robles (collectively, Fortress Defendants), as well as Defendant Michael W. Lanier filed responses in opposition to the FTC Motion. See Defendant, Fortress Law Group, PC and Rogelio Robles', Response to Plaintiffs Motion for Summary Judgment (Doc. 252; Fortress Response); Defendant Michael W. Lanier's Affidavit in Opposition to Summary Judgment (Doc. 253; Lanier Response).³ On March 10, 2016, with leave of Court, see Order (Doc. 263), Lanier filed a supplement to the Lanier Response. See Defendant Michael W. Lanier's Supplementary Affidavit in Opposition to the FTC Motion for Summary Judgment (Doc. 264; Lanier Supplement). The Federal Trade Commission responded to the Lanier Supplement on March 29, 2016. See Plaintiff's Reply to Lanier Defendants' Supplement to the Affidavit Opposing Plaintiff's Motion for Summary Judgment (Doc. 267; FTC Reply). In addition, the FTC filed a response to the Lanier Motion on January 20, 2016. See Plaintiff's Response in Opposition to Defendant Michael W. Lanier's Motion for Partial Summary Judgment (Doc. 255; FTC Response). The Court granted Lanier permission to file a reply to the FTC Response, see Order (Doc. 259), and he did so on February 2, 2016. See Defendant Michael W. Lanier's Reply to Plaintiff's Opposition to Lanier's Motion for Partial Summary Judgment (Doc. 261; Lanier Reply). Accordingly, this matter is ripe for review.

I. Standard of Review

Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a). The record to be considered on a motion for summary judgment may include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Rule 56(c)(1)(A).⁴ An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir.1993) ). "[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment." Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). "When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir.1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and "[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." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In determining whether summary judgment is appropriate, a court "must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir.1994) ).

II. Evidentiary Challenges

In his Response, Lanier challenges the FTC's use of declarations as evidence in support of the FTC Motion. According to Lanier, these declarations are inadmissible because the FTC has not moved to admit them under Federal Rule of Evidence (FRE) 807, and even if the FTC had done so, the declarations fail to satisfy the residual hearsay exception. See Lanier Response at 2. In support, Lanier relies on cases in which courts have considered the admissibility of declarations in lieu of testimony at trial, such as F.T.C. v. Washington Data Resources, No. 8:09–cv–2309–T–23TBM, 2011 WL 2669661, at *3–5 (M.D.Fla. July 7, 2011) and F.T.C. v. Direct Benefits Group, LLC, No. 6:11–cv–1186–Orl–28TBS, 2012 WL 5508050, at *1 (M.D.Fla. Nov. 14, 2012), as well as F.T.C. v. E.M.A. Nationwide, Inc., No. 1:12–CV–2394, 2013 WL 4545143, at *2–3 (N.D.Ohio Aug. 27, 2013), in which the court addressed whether consumer complaints to other agencies, as opposed to declarations made under penalty of perjury, were appropriate evidence at summary judgment. See Lanier Response at 3-5. However, Lanier's argument is specious and the authorities he cites in support are not relevant to the current posture of this case. The issue before this Court is the use of declarations to support a motion for summary judgment, and thus Rule 56, not FRE 807, is the applicable authority.

As stated above, pursuant to Rule 56, a party may support a motion for summary judgment by citing to: "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only) admissions, interrogatory answers, or other materials." See Rule 56(c)(1)(A) (emphasis added). To rely on a declaration, the Rule requires that it: "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." Rule 56(c)(4). In the declarations submitted by the FTC, the declarants state that they are over 18 years of age, have personal knowledge of the facts stated, and would testify to those facts if called. See, e.g., FTC Motion, Exs. 1A, 1B, 2-25, 300-338. Moreover, each declaration is signed under penalty of perjury pursuant to 28 U.S.C. § 1746. Id. As such, to the extent the declarations contain testimony that would be admissible in Court if the declarant were called to testify, the Court may appropriately consider these declarations in resolving the instant Motions. See Rule 56(c)(1)(A), (c)(4) ; McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.1996) (explaining that otherwise admissible evidence may be "submitted in inadmissible form at the summary judgment stage, though at trial it must be submitted in admissible form"). Significantly, Lanier fails to identify any declaration of record that does not comply with these requirements, nor does he raise any hearsay, personal knowledge, or other relevant challenge to any specific portion of a declarant's testimony. Thus, the Court rejects Lanier's wholesale challenge to the FTC's use of declarations as evidence.⁵

Lanier also challenges the credibility of the FTC investigators who filed...