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Muzyka v. Rash Curtis & Associates

United States District Court, E.D. California

July 3, 2019

ERIN MUZYKA, Plaintiff,
v.
RASH CURTIS & ASSOCIATES, Defendant.

          MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE

         Plaintiff Erin Muzyka brought this action against defendant Rash Curtis & Associates. Plaintiff asserts that defendant violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., and California's Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), Cal. Civ. Code §§ 1788 et seq. Pursuant to Federal Rule of Civil Procedure 56, defendant now moves for summary judgment on all of plaintiff's claims.

         I. Factual and Procedural Background

         Defendant is a third-party debt collection agency. (Keith Decl. ¶ 4 (Docket No. 17).) On May 7, 2015, defendant was assigned to collect an outstanding medical debt owed by plaintiff. (Id. ¶ 7.) Between 2015 and 2017, defendant called plaintiff about the outstanding debt. (Id. ¶ 10.) Sometimes, defendant called plaintiff more than once in a single day. (Id. ¶ 15.) In September 2017, plaintiff's counsel sent defendant a cease-and-desist letter demanding that defendant not engage in further with plaintiff. (Id., Ex. F.)

         The parties dispute whether plaintiff told defendant to stop calling her at any point before the September 2017 cease-and-desist letter. Plaintiff contends that she spoke with representatives of Rash Curtis & Associates via telephone in summer 2016 and “repeatedly instructed them to stop calling her.” (Pl.'s Opp. to Mot. for Sum. J., Ex. B (“Pl.'s Answers to Interrog.”) at No. 7 (Docket No. 23-2).) Defendant denies that any of its representatives or employees ever made any contact with plaintiff. (Keith Decl. ¶ 10.)

         Plaintiff also contends that defendant “threatened to file suit against [p]laintiff if she did not pay the balance of the alleged debt, ” but that it “did not follow through with that threat.” (Pl.'s Answers to Interrog. at No. 8.)[1] Defendant denies that it ever spoke with plaintiff, let alone threatened legal action against her. (Keith Decl. ¶ 20.)

         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 movant can demonstrate that the non-moving party cannot provide evidence to support an essential element upon which it will bear the burden of proof at trial. Id. Any inferences drawn from the underlying facts must, however, be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         A. FDCPA Claims

         In 1977, Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The Act establishes a nonexclusive list of unlawful debt collection practices and provides for public and private remedies. Id. §§ 1692-1692p. Plaintiffs bringing actions under the FDCPA must do so “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d).

         1. Calling plaintiff despite her alleged cease and desist request

         Section 1692d of the FDCPA (“Section 1692d”) prohibits debt collectors from engaging in “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. Courts have recognized that contacting debtor who has asked the debt collector to cease and desist communications may violate Section 1692d. See Arteaga v. Asset Acceptance, LLC, 733 F.Supp.2d 1218, 1227 (E.D. Cal. 2010) (O'Neill, J.) (“[A] debt collector may harass a debtor by continuing to call the debtor after the debtor has requested that the debt collector cease and desist communication.”) See also Moltz v. Firstsource Advantage, LLC, No. 08-CV-239S, 2011 WL 3360010, at *3 (W.D.N.Y. Aug. 3, 2011) (denying summary judgment for defendant debt collector on Section 1692d claim where plaintiff made verbal, but not written, request that defendant cease calls).

         Plaintiff alleges that defendant violated Section 1692d by “continu[ing] to call [p]laintiff multiple times daily in spite of [p]laintiff's multiple demands to stop calling her.” (Compl. ¶ 20.) Defendant argues that it is entitled to summary judgment on this claim because plaintiff has failed to put forth sufficient evidence to create a triable issue of fact as to whether she ever told defendant to stop calling her. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotation omitted) (“[A] party opposing a properly supported motion for summary judgment may not rest upon the allegations or denials in the pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.”). Defendant contends that plaintiff has not set forth any “specific facts” showing that there is a genuine issue as to whether or not plaintiff ever told defendant to stop calling her. In support of this contention, defendant points to its “uncontroverted” evidence that it never spoke to plaintiff. (See Keith Decl. ¶ 10). Defendant also dismisses plaintiff's interrogatory answers as a mere “recitation” of the allegations in plaintiff's complaint. (Def.'s Reply in Supp. of Mot. for Summ. J. at 4 (Docket No. 28.)

         Federal Rule of Civil Procedure 56(c) explicitly permits district courts to consider “answers to interrogatories when reviewing a motion for summary judgment so long as the content of those interrogatories would be admissible at trial.” Johnson v. Holder, 700 F.3d 979, 982 (7th Cir. 2012)(quoting Hardrick v. City of Bolingbrook, 522 F.3d 758, 761 (7th Cir. 2008)). See also Alaska Ctr. for Env't v. Browner, 20 F.3d 981, 986 (9th Cir. 1994) (“The federal rules specifically authorize the use of interrogatory answers in summary judgment practice[.]”). In order to be admissible at trial, an interrogatory answer must be made on personal knowledge. Johnson, 700 F.3d at 982.

         In the instant case, plaintiff's opposition to defendant's Motion for Summary Judgment relies on her response to ...


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