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Ortiz v. Enhanced Recovery Co.

United States District Court, E.D. California

December 16, 2019

RENE ORTIZ, Plaintiff,



         Plaintiff is proceeding in this action pro se. This matter was, therefore, referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the court are plaintiff's motion for default judgment, motion for judgment on the pleadings, motion to “apply laws, ” and motion stay, as well as defendant's motion for a protective order, and motion for summary judgment. For the reasons stated below, the undersigned will recommend that defendant's motion for summary judgment be granted while denying all other pending motions.


         Plaintiff commenced this action on February 23, 2017, by filing a complaint in the Sacramento County Superior Court against defendant Enhanced Recovery Company, LLC (“ERC”). (ECF No. 1 at 4.) On March 22, 2017, defendant ERC removed the matter to this court pursuant to federal question jurisdiction. (Id. at 2.) Plaintiff is now proceeding on a second amended complaint. (ECF No. 31.) Therein, plaintiff alleges that in September of 2015, plaintiff “purchased from Sprint the mobile cellular services . . . and a phone.” (Sec. Am. Compl. (ECF No. 31 at 1.[1]) Plaintiff, however, “cancelled the services within 10 days of the purchase” by “calling Sprint and . . . return[ing] the phone at the store where [plaintiff] purchased it in Oakland, California.” (Id. at 1-2.)

         “A few months later” plaintiff was contacted by an employee of Virtuoso Sourcing Group, (“VSG”), “about the same Sprint account.” (Id.) The employee “kept badgering that VSG needed proof [plaintiff] returned the phone.” (Id.) On February 15, 2016, plaintiff “sent notification to VSG that [plaintiff] disputed the debt and to cease and desist from any form of communication regarding the account[.]” (Id.)

         Thereafter, VSG transferred “the invalid debt” to ERC. (Id. at 3.) On August 2, 2016, ERC, “and its executive officers, [defendant] Kirk Moquin, and [defendant] Marty Sarim” sent plaintiff “a notice dated August 2, 2016 .. . in an attempt to collect the same invalid debt.” (Id.) Plaintiff “replied to ERC's notice disputing the invalid debt timely, ” and “informed ERC to cease and desist, ” although the date the reply was sent is not alleged.[2] (Id.) However, on September 18, 2016, plaintiff received a “similar notice” from ERC “attempting to collect the invalid debt[.]” (Id.) On September 23, 2016, “ERC reported the invalid debt to the credit reporting agency (‘CRA').” (Id.)

         On September 26, 2016, plaintiff sent ERC a notice “informing ERC of their reporting error and to remove the inaccurate reporting from the CRA[.]” (Id.) However, on September 28, 2016, ERC “re-reported or updated the same invalid debt to the CRA[.]” (Id.) That same day plaintiff “applied for credit and was denied due to ERC['s] reporting the invalid debt.” (Id. at 5.) Plaintiff filed a complaint with the Consumer Financial Protection Bureau on October 6, 2016. (Id. at 4.)

         In this regard, defendants “did not furnish information” that was “accurate and complete, ” or “investigate the dispute[.]” (Id. at 6.) Instead, defendants “reported and re-reported [plaintiff's] creditor information to CRA without proving the account was [plaintiff's] responsibility and that the balances [were] accurate.” (Id. at 7.) Based on these allegations the second amended complaint asserts causes of action for violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and the Fair Debt Collection Practices Act, 15 U.S.C § 1692 et seq. (Id. at 5-7.)

         Defendant ERC filed an answer on December 4, 2017. (ECF No. 32.) On August 1, 2018, defendants Kirk Moquin and Marty Sarim filed an answer. (ECF No. 48.) On April 23, 2019, defendants filed the pending motion for summary judgment. (ECF No. 70.) Due to plaintiff's failure to file a timely opposition, the undersigned issued plaintiff an order to show cause on May 20, 2019. (ECF No. 77.) Plaintiff filed a response on May 21, 2019. (ECF No. 78.) Defendants filed a reply on May 24, 2019. (ECF No. 79.) Plaintiff filed a second response on May 31, 2019. (ECF No. 82.)


         Defendants' statement of undisputed facts, supported by citations to declarations, exhibits, and plaintiff's failure to respond to defendants' requests for admissions, establishes in relevant part the following. On August 1, 2016, ERC was retained by Sprint to collect from plaintiff a debt in the amount of $1, 553.06. On August 2, 2016, ERC sent a collection letter to plaintiff notifying plaintiff that plaintiff's account had been placed with ERC for collections and offering plaintiff a settlement at a reduced rate. ERC did not receive a response to the August 2 letter and could not reach plaintiff by phone despite calls to several telephone numbers associated with plaintiff. (Defs.' SUDF (ECF No. 70-1) 1-4.[3])

         On September 15, 2016, ERC sent another collection letter to plaintiff. On October 3, 2016, ERC received a letter dated September 26, 2016 from plaintiff wherein plaintiff demanded that ERC “remove that account from my credit report immediately, and to cease and desist all collection action.” Plaintiff requested verification of the debt in the October 3, 2016 letter. On October 4, 2016, the day after ERC received Plaintiff's September 26, 2016 letter, ERC immediately ceased collection activities and sent verification of the Sprint debt to Plaintiff. ERC's only notice of plaintiff's dispute regarding the debt was from plaintiff. ERC did not receive notice from a CRA that plaintiff disputed the debt. (Defs.' SUDF (ECF No. 70-1) 5-10.)

         On October 4, 2016, ERC conducted research to determine the validity of plaintiff's dispute. ERC determined that on September 22, 2015, plaintiff disputed the equipment charges directly with Sprint and Sprint advised plaintiff that he would need to provide proof the equipment was returned. Plaintiff never provided proof to Sprint and Sprint determined that the dispute was invalid. ERC marked the account as disputed but noted that the dispute was invalid based upon its research of the Sprint account. ERC updated plaintiff's account as disputed and placed the account in an investigatory status to prevent further collection efforts. (Defs.' SUDF (ECF No. 70-1) 12-15.)

         On October 6, 2016, plaintiff submitted a complaint to the CFPB to complain about ERC's collection activities. On October 9, 2016, ERC submitted a request to the credit reporting agencies to delete the Sprint debt from plaintiff's credit report. On October 19, 2016, ERC responded to plaintiff's CFPB complaint. In response to plaintiff's claim that ERC reported inaccurate dates to the credit reporting agencies, ERC explained that it provided only two dates to the credit reporting agencies: the open date of August 1, 2016 and the delinquency date of June 25, 2015. ERC explained that additional dates on plaintiff's credit report were not the result of any information provided by ERC. Additionally, ERC advised that it confirmed with the three credit reporting agencies that ERC only reported the August 1, 2016 and June 25, 2015 dates and no other dates. (Defs.' SUDF (ECF No. 70-1) 16-20.)


         As noted above, plaintiff failed to file a timely opposition to defendants' motion. On May 16, 2019, defendants filed a notice of plaintiff's failure to file a timely opposition. (ECF No. 75.) And on May 20, 2019, the undersigned issued plaintiff an order to show cause as to why this action should not be dismissed due to a lack of prosecution. (ECF No. 77.) Plaintiff was also ordered to file an opposition or statement of non-opposition to defendants' motion for summary judgment on or before June 7, 2019. (Id. at 3.)

         On May 21, 2019, plaintiff filed a response to defendants' notice of non-opposition. (ECF No. 78.) Plaintiff's arguments therein are nearly incomprehensible. The filing refers to plaintiff as “a Master, ” defendants' counsel as “a servant, ” and asserts that a “servant . . . did not . . . have Authority to have removed Plaintiff's, a Master, cause of action . . . into this court[.]” (Id. at 2.) The filing also asserts that defendants' “filings . . . authorize [plaintiff] to Order the Court to Order the Honorable Magistrate Judge Debra Barnes to grant [plaintiff] . . . a Judgment on a Pleading[.]” (Id. at 4.) Moreover, plaintiff does “not need to file a reply to any opposition and or filing” of the defendants and does not have to “communicate with a servant of a servant of a servant to a servant, in which all the servants are in violation of law(s).” (Id. at 5.)

         On May 31, 2019, plaintiff filed a second response to defendants' notice of non-opposition. (ECF No. 82.) Again, the arguments found therein are nearly incomprehensible. The filing asserts that plaintiff “will not address the legality of the Courts orders as it is not necessary, prudent nor relevant to Plaintiffs' case.” (Id. at 2.) “The reason [plaintiff is] no longer required, obligated, nor should be ordered to file a SON is since all defense counsels' motions are defective there is no need to file a response.” (Id.) As to the motion for summary judgment, plaintiff's “merits of complaint are no (sic) relevant” because defendants “misrepresented itself to its defense counsel and all of defense counsel motions are defect and should be invalid as truthful testimony.” (Id. at 8.)

         Neither of plaintiff's responses contain any evidence in support of plaintiff's claims. Nor do the filings comply with Local Rule 260(b). That rule requires a party opposing summary judgment to (1) reproduce each fact enumerated in the moving party's statement of undisputed facts and (2) expressly admit or deny each fact. Under that provision the party opposing summary judgment is also required to cite evidence in support of each denial. In the absence of the required admissions and denials, the undersigned has reviewed plaintiff's filings in an effort to discern whether plaintiff denies any fact asserted in defendants' statement of undisputed facts and, if so, what evidence plaintiff has offered that may demonstrate the existence of a disputed issue of material fact with respect to any of plaintiff's claims. The undersigned will discuss plaintiff's relevant denials, if any, in analyzing defendants' motion for summary judgment.


         I. Summary Judgement

         Summary judgment is appropriate when the moving party “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). Under summary judgment practice, the moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, “the moving party need only prove that there is an absence of evidence to support the nonmoving party's case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed.R.Civ.P. 56(c)(1)(B).

         Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed.R.Civ.P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'” Matsushita, 475 U.S. at 587 (citations omitted).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, ” the court draws “all reasonable inferences supported by the evidence in favor of the non-moving party.” Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587 (citation omitted).

         II. Fair Debt Collection Practices Act

         “The FDCPA was enacted as a broad remedial statute designed 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.'” Gonzales v. Arrow Financial Services, LLC, 660 F.3d 1055, 1060 (9th Cir. 2011) (quoting 15 U.S.C. § 1692(e)).

         “In order for a plaintiff to recover under the FDCPA, there are three threshold requirements: (1) the plaintiff must be a ‘consumer'; (2) the defendant must be a ‘debt collector'; and (3) the defendant must have committed some act or omission in violation of the FDCPA.” Robinson v. Managed Accounts Receivables Corp., 654 F.Supp.2d 1051, 1057 (C.D. Cal. 2009) (quoting Withers v. Eveland, 988 F.Supp. 942, 945 (E.D. Va. 1997)).

         III. Fair ...

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