Hampton v. Barclays Bank Del.

Decision Date13 August 2020
Docket NumberCase No. 18-4071-DDC-ADM
Citation478 F.Supp.3d 1113
Parties Anthony J. HAMPTON, Plaintiff, v. BARCLAYS BANK DELAWARE, et al., Defendants.
CourtU.S. District Court — District of Kansas

Anthony J. Hampton, McKinney, TX, pro se.

Benjamin Scott Tschudy, Kate Bohon McKinney, Martin Pringle Oliver Wallace & Bauer, LLP, Overland Park, KS, Christopher R. Murphy, Pro Hac Vice, Reed Smith, LLP, Chicago, IL, for Defendant Barclays Bank Delaware.

Michael C. Barnhill, Pro Hac Vice, Michael Best & Friedrich, LLP, Cottonwood Heights, UT, Michael J. Norton, Foulston Siefkin LLP, Wichita, KS, for Defendant Marketplace Loan Grantor Trust.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge Pro se plaintiff1 Anthony J. Hampton filed his Second Amended Complaint2 (Doc. 141) on September 27, 2019. The Complaint asserts claims against eight defendants,3 alleging violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 – 1681x, the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, and the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 – 1692p. Defendant Barclays Bank Delaware ("Barclays") has asserted a counterclaim against plaintiff for breach of contract, seeking collection of $5,629.33 in alleged loan debt. Doc. 157 at 3. This matter comes before the court on Barclays's Motion for Summary Judgment (Doc. 157), defendant Marketplace Loan Grantor Trust, Series 2016-LD1's ("Marketplace") Motion for Summary Judgment (Doc. 203), and plaintiff's Motion for Leave to File Sur-reply (Doc. 183). Plaintiff has filed Oppositions to both summary judgment motions (Docs. 176 & 206), and defendants have replied (Docs. 182 & 207). For reasons explained below, the court grants defendants’ motions and denies plaintiff's motion.

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 judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also In re Aluminum Phosphide Antitrust Litig. , 905 F. Supp. 1457, 1460 (D. Kan. 1995). When it applies this standard, the court "view[s] the evidence and make[s] inferences in the light most favorable to the non-movant." Nahno-Lopez v. Houser , 625 F.3d 1279, 1283 (10th Cir. 2010) (citing Oldenkamp v. United Am. Ins. Co. , 619 F.3d 1243, 1245–46 (10th Cir. 2010) ).

"An issue of fact is ‘genuine’ ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party on the issue." Id. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ); see also In re Urethane Antitrust Litig. , 913 F. Supp. 2d 1145, 1150 (D. Kan. 2012) (explaining that "[a]n issue of fact is ‘genuine’ if ‘the evidence allows a reasonable jury to resolve the issue either way.’ ") (quoting Haynes v. Level 3 Commc'ns, LLC , 456 F.3d 1215, 1219 (10th Cir. 2006) ), overruled on other grounds by Bertsch v. Overstock.com , 684 F.3d 1023, 1029 (10th Cir. 2012). "An issue of fact is ‘material’ ‘if under the substantive law it is essential to the proper disposition of the claim’ or defense." Nahno-Lopez , 625 F.3d at 1283 (quoting Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson , 477 U.S. at 248, 106 S.Ct. 2505 )).

The moving party bears " ‘both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.’ " Kannady v. City of Kiowa , 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v. Apollo Metal Specialties, Inc. , 318 F.3d 976, 979 (10th Cir. 2002) ). To meet this burden, the moving party " ‘need not negate the non-movant's claim, but need only point to an absence of evidence to support the non-movant's claim.’ " Id. (quoting Sigmon v. CommunityCare HMO, Inc. , 234 F.3d 1121, 1125 (10th Cir. 2000) ); see also In re Urethane Antitrust Litig. , 913 F. Supp. 2d at 1150 (explaining that "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." (citation omitted)).

If the moving party satisfies its initial burden, the non-moving party " ‘may not rest on its pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.’ " Kannady , 590 F.3d at 1169 (quoting Jenkins v. Wood , 81 F.3d 988, 990 (10th Cir. 1996) ); see also Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson , 477 U.S. at 248–49, 106 S.Ct. 2505. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated" there. Adler , 144 F.3d at 671 (citing Thomas v. Wichita Coca-Cola Bottling Co. , 968 F.2d 1022, 1024 (10th Cir.), cert. denied , 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992) ).

Finally, federal courts do not view summary judgment as a "disfavored procedural shortcut." Celotex , 477 U.S. at 327, 106 S.Ct. 2548. Instead, it is an important procedure "designed ‘to secure the just, speedy and inexpensive determination of every action.’ " Id. (quoting Fed. R. Civ. P. 1 ).

II. Pro Se Litigant's Lack of Compliance with the Summary Judgment Rules

In accordance with D. Kan. Rule 56.1(f), Barclays and Marketplace each sent plaintiff a "Notice to Pro Se Litigant Who Opposes a Summary Judgment Motion." Docs. 159 & 205. These notices advised plaintiff that he "may not oppose summary judgment simply by relying upon the allegations in [his] complaint. Rather, [he] must submit evidence, such as witness statements or documents, countering the facts asserted by the defendants and raising specific facts that support [his] claim." Id. at 2. The notices advised plaintiff that if he did "not respond to the motion for summary judgment on time with affidavits and/or documents contradicting the material facts asserted by the defendants, the court may accept defendants’ facts as true, in which event [plaintiff's] case may be dismissed and judgment entered in defendants’ favor without a trial." Id.

Consistent with our local rules, defendants attached to their Notices the full texts of the rules governing summary judgment: Fed. R. Civ. P. 56 and D. Kan. Rule 56.1. Docs. 159-1 & 159-2; Doc. 205 at 4–8. The text of Rule 56(c) describes the required procedure for both the moving and nonmoving party when supporting factual positions in summary judgment briefing. Doc. 159-1 at 2–3; Doc. 205 at 4 (providing the text of Fed. R. Civ. P. 56(c) ). It also explains, "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... (2) consider the fact undisputed for purposes of the motion" or "(3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it." Id. at 3 (providing the text of Fed. R. Civ. P. 56(e)(2) & (3) ). Likewise, D. Kan. Rule 56.1(a) provides that "[a]ll material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." Doc. 159-2 at 2; Doc. 105 at 7 (providing the text of D. Kan. Rule 56.1(a) ). To controvert facts in the fashion the rule demands, D. Kan. Rule 56.1(b)(1) requires the nonmoving party to number the facts and "refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, state the number of movant's fact that is disputed." Id. (providing the text of D. Kan. Rule 56.1(b)(1) ).

In his various responses to defendantssummary judgment motions, plaintiff has failed to controvert any of the facts asserted by defendants in their Memoranda in Support of Summary Judgment, as the rules require. Although courts must construe the substantive pleadings of pro se parties liberally, see Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994), pro se litigants still must comply with the procedural rules or suffer the consequences of noncompliance. Nielsen v. Price , 17 F.3d 1276, 1277 (10th Cir. 1994) (stating that "[t]his court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants" (citation and internal quotation marks omitted)). This includes the court's local rules. Green v. Dorrell , 969 F.2d 915, 917 (10th Cir. 1992) ; see also Elrod v. Walker , No. 06-3115-SAC, 2011 WL 6372881, at *6 n.3 (D. Kan. Dec. 20, 2011) (explaining that, on summary judgment, "[a]lthough the Court affords some leeway to pro se parties, it cannot merely overlook Plaintiff's failure to state and oppose material facts in compliance with the local rules, and Plaintiff's failure to submit admissible evidence ....").

On summary judgment, the court has no duty to search the record for a litigant to find evidence supporting that litigant's summary judgment interests. See Cross v. The Home Depot , 390 F.3d 1283, 1290 (10th Cir. 2004) (explaining that, on a motion for summary judgment, " ‘it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without ... depending on the trial court to conduct its own search of the record,’ " and the district court has no obligation " ‘to comb the record in order to make [the plaintiff's] arguments for him’ ") (first quoting Downes v. Beach , 587 F.2d 469, 472 (10th Cir. 1978) ; then quoting Mitchell v. City of Moore , 218 F.3d 1190, 1199 (10th Cir. 2000) ).

This same standard applies to cases involving pro se litigants. See Handy v. City of Sheridan , 636 F. App'x 728, 743 n.15 (10th Cir. 2016) (affirming summary judgment against a pro se plaintiff,...

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