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Sean Mcendree v. Rash Curtis & Associates

May 9, 2012


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Through the present action, Plaintiff Sean McEndree ("McEndree" or "Plaintiff") alleges that Defendant Rash Curtis & Associates, a debt collection agency, violated state and federal law by its actions in attempting to collect a $450.00 unpaid medical bill allegedly owed by Plaintiff. Plaintiff also asserts a common law cause of action for invasion of privacy. Defendant Rash Curtis & Associates ("Rash Curtis" or "Defendant") now moves, pursuant to Federal Rule of Civil Procedure 56, for summary adjudication as to certain claims submitted by Plaintiff on grounds that said claims are either legally deficient, factually lacking, or both.

As set forth below, Defendant's Motion will be granted in part and denied in part.


According to Rash Curtis, on or about September 6, 2009, it received a referral from the Midtown Primary Care Association for collection of a $450.00 bill owed by Plaintiff. Defendant claims it sent an initial letter to Defendant on or about September 8, 2009, as required by the Federal Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). That letter would have included information about the debt and how to satisfy the obligation short of litigation.

In addition to notifying Plaintiff by mail, Rash Curtis also attempted to call him by using a cell phone number and other telephone numbers that Rash Curtis believed were associated with Plaintiff. Decl. of Bob Keith, ¶¶ 1-12. One of those numbers turned out to be a work number for Plaintiff's girlfriend (and now wife), Jherica Hartwell.

Rash Curtis maintains an electronic record of its debt collection contacts for all accounts. In this particular case, those logs indicate that on September 18, 2009, a Rash Curtis employee spoke to Ms. Hartwell using what it later learned was her work number. According to Rash Curtis, Hartwell identified herself as Plaintiff's wife, explained that insurance was supposed to have paid the bill, and told Rash Curtis she had set up a payment plan to make small payments on the account. Id. at ¶ 12.

Rash Curtis also states that it obtained an Experian Online Credit Report on September 18, 2009, the same day it spoke to Ms. Hartwell. The Experian report confirmed that Ms. Hartwell was indeed Plaintiff's wife. A copy of Experian's report is attached as Exhibit C to Bob Keith's Declaration.

Jherica Hartwell, for her part, denies ever telling Rash Curtis that she was McEndree's wife during her September 18, 2009, conversation with Rash Curtis. Hartwell Dep., 37:18-38:3. It is undisputed that Plaintiff and Hartwell were not married at the time of the events underlying this lawsuit (although living together as a couple, together with their child, they did not marry until 2011). Hartwell does, however, recall that she discussed the potential of a payment plan. She confirmed that the Rash Curtis employee did not release any specific debt information to her at that time. Id. at 39:17-19.

Rash Curtis' electronic records show that just minutes after speaking to Hartwell on September 18, 2009, Plaintiff himself called to complain that Hartwell "had nothing to do with the debt." Rash Curtis claims Plaintiff started cursing and hung up when its employee told Plaintiff that Hartwell had identified herself as his wife. Keith Decl., ¶ 13. Rash Curtis denies that Plaintiff informed its employee that he and Hartwell were not married at the time of this conversation. Id.

At deposition, Plaintiff states he "believes" he told Rash Curtis to stop calling Jherica Hartwell.

Pl.'s Dep., 34:5-7. The declaration submitted by Plaintiff in opposition to the present motion is more emphatic in stating that he told Rash Curtis "not to call [Hartwell] because she had nothing to do with this debt and that she was not [his] wife." Pl.'s Decl., ¶ 5.

It appears that Jherica Hartwell had a second conversation with Rash Curtis personnel on March 17, 2010. Hartwell claims that during that conversation the employee did disclose specific information concerning Plaintiff's debt. See Hartwell Dep., 39:17-40:4. During that conversation Ms. Hartwell informed Rash Curtis that she was not Plaintiff's spouse, but only his girlfriend. Keith Decl., ¶ 15. According to Rash Curtis, after receiving that information it removed Ms. Hartwell's number from its computer system to ensure that she was not called again. There is no evidence that any calls were placed to her thereafter.

It is undisputed that the Rash Curtis calls placed to Plaintiff himself were only to his cell phone. Pl.'s Undisputed Fact ("UF") No. 5 While some of those calls did come while Plaintiff was at work, Plaintiff admitted that Rash Curtis did not know his work schedule, which varied. Although Plaintiff claims that Rash Curtis called him repeatedly (as many as ten times during the course of one day, March 17, 2010 (see Compl., ¶ 5), Plaintiff conceded that with caller identification, he was able to see that Rash Curtis was calling and could ignore the calls if he chose to do so. Pl.'s Dep., 34:12-20.

With respect to the substance of the calls he received, Plaintiff testified at deposition that he was told that they would "take him to court" if he failed to pay. Id. at 28:11-13. Plaintiff's deposition also alludes to alleged statements made by Rash Curtis to the effect that it was already in litigation with Plaintiff's employer, Metro PCS, about the debt he owed. Id. at 27:5-14. Rash Curtis allegedly told Plaintiff that they would take him to court as well in order to collect the unpaid obligation. Id. at 28:1-5. Plaintiff also claims that Rash Curtis threatened to garnish his wages. Pl.'s Decl., ¶ 7.

Plaintiff filed the present lawsuit on May 2, 2010. In addition to alleging federal statutory claims under the FDCPA, Plaintiff asserts corresponding state law claims under the Rosenthal Fair Debt Collection Practices Act, California Civil Code section 1788 et seq., as well as a common law claim for invasion of privacy.

On June 15, 2010, about six weeks after the present lawsuit was commenced, Rash Curtis instituted its own lawsuit against Plaintiff to collect the debt Plaintiff owed to the Midtown Primary Care Association. Rash Curtis ultimately prevailed in that lawsuit and a judgment was entered against Plaintiff on June 17, 2011. Keith Decl., ¶ 17.


The Federal Rules of Civil Procedure provide for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

Rule 56 also allows a court to grant partial summary judgment, or summary adjudication on the part of a claim or defense. See Fed. R. Civ. P. 56(a) ("A party seeking to recover upon a claim... may... move... for a summary judgment in the party's favor upon all or any part thereof."); see also Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995); ...

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