United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
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.
BACKGROUND
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
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.)
PLAINTIFF'S
OPPOSITION
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.
STANDARDS
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 ...