Schaefer v. First Source Advantage, LLC
| Decision Date | 12 February 2013 |
| Docket Number | No. 4:12-CV-311 CAS,4:12-CV-311 CAS |
| Parties | MICHAEL J. SCHAEFER, Plaintiff, v. FIRST SOURCE ADVANTAGE, LLC, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on the parties' competing motions for summary judgment. The motions are fully briefed and ready for decision. For the following reasons, the Court will grant defendant First Source Advantage, LLC's ("FSA") motion for summary judgment based on judicial estoppel, and deny plaintiff Michael J. Schaefer's ("plaintiff") motion for summary judgment.
Plaintiff brings this action alleging that defendant FSA, a debt collection firm, violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA"), and the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), while attempting to collect a consumer debt allegedly owed by plaintiff to a third party, Capital One Bank. Plaintiff alleges that FSA violated the FDCPA by overshadowing his dispute and verification rights and failing to identify itself as a debt collector, and violated the TCPA by contacting him repeatedly on his cellular telephone without his consent, using an automatic telephone dialing system. Plaintiff seeks statutory damages, costs and attorneys' fees under the FDCPA and TPCA, and actual damages for cellular telephone charges, anxiety, sleeplessness and worry.
The Eighth Circuit recently clarified the appropriate standard for consideration of motions for summary judgment, explaining as follows:
Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. The movant bears the initial responsibility of informing the district court of the basis for its motion, and must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (internal citations and quotation marks omitted). The Eighth Circuit has also recently explained what the nonmoving party must do to meet its obligation to show that disputed facts are material:
In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying "facts that might affect the outcome of the suit." Anderson [v. Liberty Lobby, Inc.], 477 U.S. [242] at 248 [(1986)]. The nonmoving party must then categorize the factual disputes in relation to the legal elements of her claim. Id.; Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir. 2006).
Quinn v. St. Louis County, 653 F.3d 745, 751-52 (8th Cir. 2011). To survive a motion for summary judgment, the nonmoving party must "explain the legal significance of her factual allegations beyond mere conclusory statements importing the appropriate terms of art" and provide a "meaningful legal analysis explaining how, under the applicable law, the disputed facts might prove [her] claim at trial." Id. at 752 (internal citations omitted).
Where parties file cross-motions for summary judgment, each summary judgment motion must be evaluated independently to determine whether a genuine dispute of material fact exists and whether the movant is entitled to judgment as a matter of law. Husinga v. Federal-Mogul Ignition Co., 519 F.Supp.2d 929, 942 (S.D. Iowa June 15, 2007). "[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits." Wermager v. Cormorant Township Bd., 716 F.2d 1211, 1214 (8th Cir.1983).
A. Plaintiff's bankruptcy
On October 6, 2011, plaintiff and his wife filed a Chapter 7 voluntary bankruptcy petition in the United States Bankruptcy Court for the Eastern District of Missouri. See In re: Michael Schaefer and Shelly Schaefer, Case No. 11-50681 (Bankr. E.D. Mo.).1 Plaintiff was represented by counsel in his bankruptcy proceedings. Plaintiff failed to list his FDCPA and TCPA claims against FSA as an asset in his bankruptcy Schedule B or otherwise indicate to that court or the trustee that the claims existed. Schedule B - Personal Property, Question 21, required plaintiff to list (Doc. 1, Case No. 11-50681). Plaintiff checked "none."
On December 21, 2011, plaintiff filed suit against FSA in the Circuit Court of St. Charles County, Missouri, alleging violations of the FDCPA and TCPA based on FSA's conduct beginningin June 2011. FSA removed the case to this Court on February 20, 2012. Plaintiff did not amend the schedules in his bankruptcy case to include his lawsuit against FSA as an asset. On January 18, 2012, the bankruptcy court issued an order granting plaintiff and his wife a discharge of their debts in bankruptcy under section 727 of title II, United States Code. (Doc. 18, Case No. 50681). On February 27, 2012, the bankruptcy trustee filed a Chapter 7 Trustee's Report of No Distribution, indicating that there existed no assets in plaintiff's bankruptcy case to administer on behalf of plaintiff's creditors. On the same day, a Final Decree was entered and the bankruptcy case was closed. (Doc. 21, Case No. 50681).
On July 6, 2012, plaintiff filed a motion for partial summary judgment in this case on the FDCPA claims. On August 7, 2012, FSA filed its motion for summary judgment, arguing in part that plaintiff lacks standing or is judicially estopped from pursuing his claims against FSA because he did not list the claims in his bankruptcy schedules. The next day, plaintiff requested and was granted an extension of time to respond to FSA's motion for summary judgment.
On August 27, 2012, plaintiff filed a motion to reopen his bankruptcy case to amend Schedule B to include the previously undisclosed lawsuit against FSA. The motion to reopen was granted by the bankruptcy court and on September 11, 2012, plaintiff filed an amended schedule B. Under Question 21, for contingent and unliquidated claims, plaintiff stated, "Claim against Firstsource Advantage, LLC for violations of the FDCPA and TCPA currently filed as Schaefer v. Firstsource Advantage, LLC 4:12-cv-00311 CAS." (Doc. 26, Case No. 11-50681). Plaintiff stated that the current value of his interest in the FDCPA and TCPA claims was $1,000. (Id.)
Plaintiff also filed a Motion for Abandonment of Assets by Consent in the bankruptcy case on September 11, 2012, which states in pertinent part, "The Asset added to schedule B has little or no current value and may in fact never result in a payment, in that, Mr. Schaefer could lose thelitigation and not recover the estimated $1,000 in statutory damages, and therefore, the Assets are of inconsequential value and no benefit to the Estate." (Doc. 27, Case No. 11-50681). The Motion for Abandonment stated that the bankruptcy trustee consented to abandonment of the claim. (Id.) On September 13, 2012, the bankruptcy court granted the consent motion to abandon plaintiff's interest in the instant action. (Doc. 29, Case No. 11-50681).
2. The Rule 68 Offer of Judgment
On March 14, 2012, FSA made a Rule 68 Offer of Judgment to plaintiff, offering to allow judgment to be entered in plaintiff's favor on the following terms: monetary judgment in the amount of $1,001, plus reasonable attorneys' fees and costs, as determined by the Court. As part of the transmittal letter, FSA explained to plaintiff that it did not use an autodialer or leave prerecorded messages when calling plaintiff's cellular telephone number. On March 15, 2012, plaintiff's counsel rejected FSA's Rule 68 offer, and presented a counteroffer of settlement, but the parties did not settle.
FSA moves for summary judgment on five grounds: (1) plaintiff lacks standing to prosecute this action; (2) the principle of judicial estoppel bars plaintiff from proceeding in this action because he did not disclose his claims against FSA in the bankruptcy proceeding; (3) plaintiff's TCPA claim fails because FSA did not use an automated dialing system or leave prerecorded messages when it called plaintiff's cellular telephone; (4) plaintiff's FDCPA claim is moot because FSA has tendered a Rule 68 Offer of Judgment offering plaintiff 100% of the statutory damages available and there is no basis to believe plaintiff could have incurred any actual damages; and (5) FSA is entitled to summary judgment on the merits of plaintiff's FDCPA claims.
FSA argues in its motion for summary judgment that plaintiff lacks standing to bring this suit, because the claims accrued prior to his filing for Chapter 7 bankruptcy protection, and he was in bankruptcy proceeding when this suit was filed but failed to disclose the existence of the claims to the bankruptcy court. It is not clear whether FSA in its reply memorandum concedes that plaintiff now...
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