Miller v. Javitch, Block & Rathbone, Llp

• Decision Date: 26 October 2005
• Docket Number: No. 1:05-CV-211-TS.,1:05-CV-211-TS.
• Citation: 397 F.Supp.2d 991
• Parties: Kevin D. MILLER, Plaintiff, v. JAVITCH, BLOCK & RATHBONE, LLP, and Melville Acquisitions Group, LLC, Defendants.
• Court: U.S. District Court — Northern District of Indiana

397 F.Supp.2d 991

Kevin D. MILLER, Plaintiff, v. JAVITCH, BLOCK & RATHBONE, LLP, and Melville Acquisitions Group, LLC, Defendants.

No. 1:05-CV-211-TS.

United States District Court, N.D. Indiana, Fort Wayne Division.

October 26, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kevin D. Miller, Fort Wayne, IN, pro se.

Michael P. Slodov, Javitch Block & Rathbone LLP, Cleveland, OH, for Defendants.

OPINION AND ORDER

SPRINGMANN, District Judge.

The Plaintiff, Kevin D. Miller, sued the Defendants, Javitch, Block & Rathbone, LLP, (JB & R) and Melville Acquisitions Group, LLC, (MAG) for malicious prosecution, invasion of privacy, and breaches of various provisions of the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. This matter is before the Court on the Defendants' Motion to Dismiss, or in the alternative, Motion for Summary Judgment [DE 7], filed on July 19, 2005, the Plaintiff's Motion to Exclude or Strike Evidence [DE 12], filed on August 16, 2005, and the Plaintiff's Motion for Partial Summary Judgment [DE 17], filed on August 16, 2005.

BACKGROUND

On June 27, 2005, the Plaintiff filed his pro se Complaint against the Defendants as "debt collectors" who wrongfully sought to collect a debt and instituted groundless litigation to that end. The Plaintiff stated seventeen causes of action under the FDCPA, one claim for malicious prosecution, and one claim for invasion of privacy or false light publicity. The Plaintiff invoked the Court's original jurisdiction under 15 U.S.C. § 1692k(d) and 28 U.S.C. § 1331 and the Court's supplemental jurisdiction under 28 U.S.C. § 1367(a).

On July 19, 2005, the Defendant moved for dismissal and moved, in the alternative, for summary judgment. On August 5, 2005, the Plaintiff responded to the motion to dismiss and on August 10, the Defendants replied.

On August 16, 2005, the Plaintiff moved to exclude or strike the Declarations the Defendants filed in support of their motion for dismissal and summary judgment and also responded to the Defendants' motion for summary judgment. On August 23, the Defendants responded to the Plaintiff's motion to strike, to which the Plaintiff did not reply. Also on August 23, the Defendants replied to the Plaintiff's responses to its motion for dismissal and for summary judgment.

On August 16, 2005, the Plaintiff filed a Motion for Partial Summary Judgment with respect to JB & R's liability on the Plaintiff's state law claim for malicious prosecution. On August 23, the Defendants responded and on September 1 the Plaintiff replied.

SUMMARY JUDGMENT STANDARD¹

The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted "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). "In other words, the record must reveal that no reasonable jury could find for the nonmoving party." Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.1994) (citations and quotation marks omitted). Rule 56(c) further requires 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).

A party seeking summary judgment bears the initial responsibility of informing a 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 district court — 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. Int'l 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).

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. Fed.R.Civ.P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994). Federal Rule of Civil Procedure 56(e) establishes that "the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts to establish that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, 477 U.S. 242, 248 — 50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 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. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Juarez v. Ameritech Mobile Commc'ns, Inc., 957 F.2d 317, 322 (7th Cir.1992). Only material facts will preclude summary judgment; irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Anderson, 477 U.S. at 248 — 49, 106 S.Ct. 2505. If there is no genuine issue of material fact, the only question is whether the moving party is entitled to judgment as a matter of law. Miranda v. Wisc. Power & Light Co., 91 F.3d 1011, 1014 (7th Cir.1996).

In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a 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-Am., 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). A 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.

MOTION TO STRIKE

In support of their Motion for Summary Judgment, the Defendants provide the Declarations of Christopher Cassidy and Thomas Milana, Jr. The Plaintiff moves to strike portions of the Cassidy and Milana Declarations as speculative, lacking trustworthiness, or containing inadmissible hearsay.

Rule 56(e) requires that affidavits supporting or opposing summary judgment

shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... [T]he adverse party's response [to the motion], by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

A court may only consider those parts of an affidavit that satisfy the requirements of Rule 56(e). Adusumilli v. City of Chicago, 164 F.3d 353, 359 (7th Cir.1998).

Thus, one requirement is that affidavit testimony must concern matters within the affiant's personal knowledge. Id.; see also Fed.R.Evid. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."). Statements outside the affiant's personal knowledge or statements that are the result of speculation or conjecture or merely conclusory do not meet the requirements of Rule 56(e). Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir.1999).

Another limitation on affidavit testimony is that it may not rely on hearsay that would not be admissible at trial. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.1997) ("[H]earsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial."). Federal Rule of Evidence 802 generally bars the admission of hearsay (a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted). However, Rule 801 defines some statements as non-hearsay, and Rules 803 and 804 list exceptions to the hearsay rule. The party offering evidence based on hearsay may not rely on that evidence unless it demonstrates that it falls under an exception. Boyce v. Moore, 314 F.3d 884, 889 (7th Cir.2002).

A. Milana Declaration

The Plaintiff challenges paragraphs four, five, and six of the Declaration of Thomas Milana, Jr., the custodian of MAG's business records. These paragraphs relate to the chain of title of the account that has become the subject of this lawsuit.

He contends that paragraph four should be stricken because it is not based on personal knowledge. Paragraph four provides that "Providian National Bank transferred all its right, title and interest in the account of Kevin D. Miller, account number [redacted] to RB Consulting LLC by a bill of sale." (Milana Decl. ¶ 4.) The Plaintiff argues that Milana does...