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James Rucker v. Nationwide Credit

January 4, 2011

JAMES RUCKER, PLAINTIFF,
v.
NATIONWIDE CREDIT, INC., DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER ON DEFENDANT'S SUMMARY JUDGMENT OR ADJUDICATION MOTION*fn1

Defendant Nationwide Credit, Inc. moves for summary judgment on Plaintiff's complaint, and in the alternative for summary adjudication of issues. Defendant also moves for attorneys fees under 15 U.S.C. § 1692k, based on its contention that Plaintiff brought this action in bad faith. Plaintiff does not oppose the portion of the motion challenging two of his claims alleged under 15 U.S.C. § 1692e(11) and § 1692g of the federal Fair Debt Collection Practices Act ("FDCPA"), and "voluntarily withdraws" those claims in his opposition brief. (Pl.'s Opp'n 13:25-14:18.) Therefore, these claims are dismissed.

Plaintiff alleges in his complaint that Defendant violated the FDCPA and California's Fair Debt Collection Practices Act ("Rosenthal Act"), by harassing him with telephone calls for the purpose of collecting a debt and failing to provide meaningful disclosure of its identity when it called him.

I. LEGAL STANDARD

The movant for summary judgment and summary adjudication bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If this burden is satisfied, "the non-moving party must set forth . . . specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (internal quotation marks omitted). "All reasonable inferences [capable of being drawn from admitted evidence] must be drawn in favor of the non-moving party." Bryan v. McPherson, 590 F.3d 767, 772 (9th Cir. 2009). However, "[m]ere argument does not establish a genuine issue of material fact to defeat summary judgment." MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993).

Further, Local Rule 260 requires:

Each motion for summary judgment or summary adjudication [to] be accompanied by a 'Statement of Undisputed Facts' that shall enumerate discretely each of the specific material facts relied upon in support of the motion and cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to establish that fact. . . .

Any party opposing a motion for summary judgment . . . [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.

E.D. Cal. R. 260 (a)-(b). If the non-movant does not "specifically . . . [controvert duly supported] facts identified in the [movant's] statement of undisputed facts," the non-movant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006).

II. UNCONTROVERTED FACTS

The uncontroverted facts are the following. Plaintiff "began receiving calls [from Defendant] in the early part of 2009;" and "received approximately 80 phone calls . . . from Defendant in 2009." (Pl.'s Statement of Genuine Issues of Material Fact ("Pl.'s Facts") ¶¶ 1, 2.) "Plaintiff also . . . received multiple calls per day from Defendant[.]" Id. "Further, . . . if [Plaintiff] failed to answer his cell phone Defendant would contact his home phone." Id.

Plaintiff had 11 connected telephone calls from Defendant in 2009. Id. ¶¶ 4,5,6. Defendant did not leave a voice message each time it called Plaintiff. Id. ¶ 9.

III. DISCUSSION

A. Continuous and Harassing ...


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