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Loren Scott v. Kelkris Associates

March 23, 2012

LOREN SCOTT,
PLAINTIFF,
v.
KELKRIS ASSOCIATES, INC. DBA CREDIT BUREAU ASSOCIATES, DEFENDANT.



AMENDED MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT

Plaintiff Loren Scott brought this action against defendant Kelkris Associates, Inc., dba Credit Bureau Associates arising out of defendant's allegedly improper service of plaintiff in a debt collection action. Presently before the court is defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.

I. Factual and Procedural Background

Defendant was assigned a debt that was allegedly owed by plaintiff to Travis Credit Union. Defendant filed a debt collection suit against plaintiff in the Superior Court of California for Sacramento County on January 23, 2009. (Compl. 6, Ex. B.) Defendant hired a licensed process server, Moe's Process Serving ("Moe's"), to serve plaintiff with the summons and complaint. (Id. Ex. C; O'Brien Decl. ¶ 4.) The address that defendant had on file for plaintiff was 3660 Scorpio Drive, Sacramento, California. When Moe's attempted to serve plaintiff at this address, the process server was told that plaintiff did not live at that address and the resident did not know plaintiff. (O'Brien Decl. ¶ 5.)

Defendant attempted to find an updated address for plaintiff and identified 8624 Culpepper Drive, Sacramento, California, as the most recent address listed on plaintiff's credit report. (Id. ¶ 6.) Defendant then cross-checked the address through a service called Accurint, which indicated that there were residents at that address with the same last name as plaintiff. (Id. ¶ 7.) Defendant believed that plaintiff was likely living with his family and provided the Culpepper address to Moe's for process serving. (Id. ¶¶ 8-9.)

Plaintiff had previously lived at 8624 Culpepper Drive, (Steinheimer Decl. Ex. B ("Pl.'s Dep.") at 7:17-8:5 (Docket No. 17)), but did not inform Travis Credit Union or defendant when he moved to a new residence, (id. at 37:8-21).

Moe's attempted to serve plaintiff at the Culpepper address. (Abegglen Decl. Ex. A (Docket No. 17).) On the first two attempts there was no one at home. On the third attempt, the process server was told by plaintiff's father, Lewis Scott, that plaintiff was not available at that time. (Id. ¶ 3, Ex. A.)

The process server attempted to effectuate substitute service of the summons and complaint by leaving a copy of the sommons and complaint with plaintiff's father. (Id.) Lewis Scott did not tell the process server that plaintiff did not live with him. (Id. ¶ 3.)

Moe's then mailed a copy of the summons and complaint to the Culpepper address. (Id. ¶ 4, Ex. A.) This copy of the summons and complaint was not returned in the mail. (Id. ¶ 4.) Moe's did not inform defendant that service had not been properly effectuated on plaintiff. (Id. ¶ 5; O'Brien Decl. ¶¶ 9-10.) Defendant alleges that at the time of the attempted substitute service, it believed that plaintiff lived at the Culpepper address. (O'Brien Decl. ¶¶ 9-10.)

Plaintiff's father never informed plaintiff that he had been served with a lawsuit. (Pl.'s Dep. at 25:3-7.) When plaintiff later asked his father whether he had received the lawsuit, his father told him that did not remember receiving the complaint or summons. (Id. at 25:8-22.)

Default judgment was entered against plaintiff on May 15, 2009. (Compl. ¶ 8.) Plaintiff only learned about the suit on December 10, 2009, when he received a letter from the County of Sacramento Department of Finance informing him of an Earnings Withholding Order obtained against him. (Pl.'s Dep. at 11:2-22.) Plaintiff then contested the default judgment, which the Superior Court vacated "on the ground of inadvertence and excusable neglect."*fn1 (Friedman Decl. Ex. A (Docket No. 18).)

After learning about the suit brought by defendant in state court, plaintiff discussed the suit with his family, friends, and co-workers. (Pl.'s Dep. at 33:24-34:17.)

Plaintiff then brought this suit alleging violations of §§ 1692b(1)-(2), 1692c(b), 1692d, 1692e, 1692e(10), and 1692f of the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and § 1788.12(b) and § 1788.14(a) of the California Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), Cal. Civ. Code § 1788 et seq.

II. Discussion

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.

Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.

In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury ...


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