The opinion of the court was delivered by: United States District Judge Southern District of California Hon. Thomas J. Whelan
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S SUMMARY-JUDGMENT MOTION [DOC. 20]
Pending before the Court is Defendant Genpact Services, LLC's ("Genpact") summary-judgment motion ("MSJ"). (MSJ [Doc. 20]; see also Reply [Doc. 24].) On November 7, 2012 Plaintiff Manfred Neu ("Neu") filed an opposition ("Opposition"). (Opp'n [Doc. 22].) The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART Genpact's summary-judgment motion.
This suit stems from Genpact's placement of 150 telephone calls to Neu within a 51 day period in an attempt to collect a debt. The key facts are not in dispute.
Genpact is a debt collector as defined by the Fair Debt Collections Practices Act ("FDCPA") and California Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"). (MSJ, 7.) Neu owed a debt to GE Money Bank for the balance of his Lowe's credit card. (Compl. [Doc. 1.], ¶ 12.) Genpact attempted to collect the debt on GE Money Bank's behalf. (Declaration of Prasad Veerapaneni [Doc. 20-2], ¶2.) Genpact wrote to Neu on June 22, 2011 in order to settle the debt. (Opp'n Ex. B [Doc. 22-2].) Genpact alleges Neu did not respond to the letter. (MSJ, 7.)
Following its unsuccessful attempt to reach Neu via mail, Genpact tried to reach Neu via telephone. (Decl. Veerapaneni, ¶ 4.) Genpact had two phone numbers for Neu, a home number and a cell number. (Id., ¶¶ 4--5.) Between July 21, 2011 and September 9, 2011, Genpact called the two numbers 150 times. (Decl. Veerapaneni, ¶ 5.) Genpact's records show that it called Neu's home phone number 79 times and Neu's cell number 71 times. (MSJ, 8.) On one occasion, Genpact called Neu 6 times in one day. (Opp'n Ex. C [Doc. 22-3],7.) Genpact alleges it left Neu no voice messages to avoid the possibility of third parties overhearing the messages. (Decl. Veerapaneni, ¶ 5.)
On September 27, 2011, Neu initiated this action alleging (1) violation of the FDCPA, 15 U.S. C. §§ 1692d, 1692d(5), and (2) violation of the Rosenthal Act, Cal. Civ. Code §§ 1788.11(d), 1788.11(e), and 1788.17. (Compl., 3-4.) Neu premises Genpact's liability exclusively on the number of phone calls Genpact made to Neu. (Opp'n, 4-5.) On October 4, 2012, Genpact filed this summary-judgment motion. (MSJ, see also Reply [Doc. 24.].) Neu opposes. (Opp'n.)
Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
"The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 U.S. at 252) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by 'the depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.
Rule 56(d) provides for partial summary judgment. See Fed. R. Civ. P. 56(d) ("[T]he court . . . shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted."). Under Rule 56(d), the court may grant summary judgment on less than the non-moving party's whole claim. Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc., 313 F.3d 385, 391 (7th Cir. 2002) (Posner, J.). Partial summary judgment is a mechanism through which the Court deems certain issues established before trial. Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (quoting 6 Moore's Federal Practice ¶ 56.20 (3.-2) (2d ed. 1976)). ...