Kerwin v. Remittance Assistance Corp.

• Citation: 559 F.Supp.2d 1117
• Decision Date: 02 June 2008
• Docket Number: No. 03:07-CV-00036-LRH-VPC.,03:07-CV-00036-LRH-VPC.
• Parties: Kathleen KERWIN and John Kerwin, Plaintiffs. v. REMITTANCE ASSISTANCE CORP., Defendant.
• Court: U.S. District Court — District of Nevada

559 F.Supp.2d 1117

Kathleen KERWIN and John Kerwin, Plaintiffs. v. REMITTANCE ASSISTANCE CORP., Defendant.

No. 03:07-CV-00036-LRH-VPC.

United States District Court, D. Nevada.

June 2, 2008.

COPYRIGHT MATERIAL OMITTED

Kathleen Kerwin, Reno, NV, pro se.

John Kerwin, Reno, NV, pro se.

Debra O. Waggoner, C.R. Cox, Maupin, Cox "& Legoy, Reno, NV, for Defendant.

ORDER

LARRY R. HICKS, District Judge.

Before the court is Remittance Assistance Corporation's ("RAC") Motion to Dismiss or, Alternatively, Motion for Summary Judgment (# 9¹). Plaintiffs Kathleen Kerwin and John Kerwin (collectively, "Kerwins") have filed an opposition (#11) and RAC replied (# 12).

I. Facts

This is an action filed pro se against RAC, a collection agency, for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692a-1692p. RAC responded to the Kerwins's complaint with a motion to dismiss pursuant to Federal Rules of Civil Procedure 41(b) and 16(f) and, in the alternative, a motion for summary judgment.

Viewing the facts stated in the Kerwins' complaint² and the evidence offered by RAC in the light most favorable to the Kerwins, the following narrative describes the facts of this case:

RAC contracts with Renown Health and affiliated entities to collect debts owed for medical services. (Defs.' Mot. to Dis. or, Alternatively, for Summ. J. (# 9), Ex. B at ¶ 2.) Via "computer tape" or "paper assignment" the Renown Health entities supply RAC with accounts requiring collection. (Id. at ¶ 3.) RAC employees then manually input select accounts into computerized "Work Lists," which are used to make automated phone calls to the numbers associated with the accounts. (Id. at ¶¶ 4-5.) If the auto-dialer detects an answering device (for example, an answering machine or voicemail), it leaves the following message:

Hello, this message is for (name). This is not a sales call. You have an important matter with our company that deserves your immediate attention. Please call me back as soon as possible at the following number: 877-789-7878. Again, the number is 877-789-7878. When returning this call, please refer to reference number (number). Again, the reference number is (number). If you wish to speak to someone now regarding your account, press zero. Thank you and goodbye.

(Id. at ¶¶ 5-6.) If the recipient does not return the call, the number is called at a later time. (Id. at ¶ 6.)

On October 31, 2006, the auto-dialer called the Kerwins' residential phone number, leaving the automated message for "Sharron Coldwell."³ (Id. at ¶ 8.) RAC did not receive a return call, and RAC left a similar message on November 8, 2006 at 12:44 p.m. Kathleen Kerwin returned this call and spoke to RAC employee Amber Wells. After informing Ms. Wells that the Kerwins owned the phone number 775-746-3017 since June 2005 and that "Sharon and Greg Caldwell" had owned the number before the Kerwins, Ms. Kerwin stated that she would sue RAC if she received any further calls. (Defs.' Mot. to Dis. or, Alternatively, for Summ J. (# 9), Ex. C at ¶¶ 2-3.) Ms. Wells responded, "[G]o ahead and sue." (Defs.' Mot. to Dis. or, Alternatively, for Summ J. (# 9), Ex. D.) Ms. Wells removed the Kerwins' phone number from the account associated with "Sharron Coldwell." (Defs.' Mot. to Dis. or, Alternatively, for Summ J. (# 9), Ex. C at ¶ 4.)

On November 13, 2006, the auto-dialer again called the Kerwins' phone number, leaving the automated message for "Greg Coldwell." (Defs.' Mot. to Dis. or, Alternatively, for Summ J. (# 9), Ex. B at ¶ 13.) On November 14, 2006. RAG received a certified letter from the Kerwins stating that Sharon and Greg Caldwell could not be reached at the Kerwins' number. (Defs.' Mot. to Dis. or, Alternatively, for Summ J. (# 9), Ex. D.) In addition, the Kerwins demanded that RAC "[c]ease and desist calling [their] number," told RAC that they found the calls "annoying" and "abusive" and told RAC further calls would result in a lawsuit under the FDCPA. (Id.) In response to the letter, RAC removed the Kerwins' phone number from the "Greg Coldwell" account. (Defs.' Mot. to Dis. or, Alternatively, for Summ J. (# 9), Ex. B at ¶ 4.)

On January 3.2007, the auto-dialer called the Kerwins' phone number, leaving the automated message for "Greg Colwell." (Id. at ¶ 16.) Ms. Kerwin called RAC later that day, informing a RAC supervisor, Jason Lockwood, that she considered the call "harassment." (Id. at ¶ 17.) Mr. Lockwood removed the Kerwins' phone number from the "Greg Colwell" account. (Id.)

RAC acknowledges that the Kerwins do not owe any money to any of RAC's creditor-clients. (Id. at ¶ 21.) RAC further states that, since the automated dialing software could not sort by phone number, RAC could not remove the Kerwins' phone number from their system except in an account-by-account fashion. (Id. at ¶ 19.) The removal of the number from one account did not affect other, similar accounts. (Id.) Therefore, according to RAC, it was possible that the Kerwins could receive calls for other variations of "Sharon Caldwell" or "Greg Caldwell" as long as these variations were separate RAC accounts. (Id.)

II. Motion for Summary Judgment

A. Legal Standard

Summary judgment is appropriate only when "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir.2001).

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is "sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986). See also Idema v. Dreamworks, Inc., 162 F.Supp.2d 1129, 1141 (C.D.Cal.2001). For those issues where the moving party will not have the burden of proof at trial, the movant must point out to the court "that there is an absence of evidence to support the nonmoving party's case." Catrett, 477 U.S. at 325, 106 S.Ct. 2548.

In order to successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson School Dist. No. 114J, 208 F.3d 736 (9th Cir.2000). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir.1983). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252, 477 U.S. 242, 106 S.Ct. 2505.

B. Discussion

1. Admissibility of the Kerwins' Complaint to Oppose Summary Judgment

As a threshold matter, RAC argues that the Kerwins have submitted no evidence in opposition to its motion for summary judgment. RAC's argument, however, fails to acknowledge that the Kerwins have filed a verified complaint. "A verified complaint may serve as an affidavit for purposes of summary judgment if (1) it is based on personal knowledge and if (2) it sets forth the requisite facts with specificity." California Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1176 (9th Cir. 2007), Where the complainant does not provide sworn verification of the complaint, the complaint may still be verified if the complainant declares, under penalty of perjury, that the complaint is "true and correct." 28 U.S.C. § 1746.

The Kerwins' complaint is in such a form that it meets the requirements of a verified complaint. First, the complaint satisfies the requirements outlined in California Pro-Life Council; that is, the complaint is based on personal kriowledge and sets forth facts with specificity. Second, the Kerwins' complaint concludes with the following coda: "The undersigned affiant, Kathleen Kerwin, says: I am over the age of eighteen, suffer no legal disabilities, have personal knowledge of the facts set forth below, and am competent to testify." (Compl.(# 1).) This coda is followed by Mrs. Kerwin's signature. Though this coda does not swear, under penalty of perjury, to the truth of the facts set forth in the complaint, it substantially complies with § 1746's requirements. The coda incorporates traditional legal language that a nonlegally trained litigant might take to satisfy legal requirements. Furthermore, the phrases "personal knowledge of the facts" and "testify" presuppose the truth of the facts because it is logically impossible to know a "false fact." See Black's Law Dictionary 628 (8th ed. 2004) (defining "fact" as "something that actually exists; an aspect of reality"). The absence of one element of the traditional legal boilerplate used to verify complaints was probably unintentional, and such a technical defect is not favored as grounds for granting summary...