VIRGINIA EMERSON HOPKINS, District Judge.
This civil action was originally filed on October 30, 2013, by the Plaintiff, Rhonda Bass, against Mike Rome Holdings, LLC d/b/a MRH & Associates ("Mike Rome Holdings"). (Doc. 1). The original Complaint alleged that Mike Rome Holdings was liable for: violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (Count One); the Alabama state law claim of invasion of privacy (Count Two); the Alabama state law claim of "negligent, wanton, and/or intentional hiring and supervision of incompetent debt collectors" (Count Three); and "wanton, malicious, and intentional conduct" (Count Four). The Plaintiff also demanded a jury trial. (Doc. 1 at 16).
On February 3, 2014, the clerk of court entered the default of Mike Rome Holdings. (Doc. 13). On August 16, 2017, the Plaintiff filed a motion for entry of a default judgment. (Doc. 16). On August 15, 2014, the Court ordered Mike Rome Holdings to show cause "no later than August 29, 2014, why a default judgment should not be entered against it." (Doc. 17 at 1). Mike Rome Holdings failed to respond to that Order.
On September 24, 2014, the court issued an order which, inter alia, stated:
(Doc. 18 at 4-5).
On October 23, 2014, the Plaintiff filed an Amended Complaint which again named only Mike Rome Holdings as a Defendant. The Amended Complaint alleged only violations of the following sections of the Fair Debt Collections Practices Act:
The Amended Complaint dropped the original Complaint's Alabama state law claims of invasion of privacy; "negligent, wanton, and/or intentional hiring and supervision of incompetent debt collectors;" and "wanton, malicious, and intentional conduct." Other than the federal claims listed above, the Amended Complaint contained no other claims.
On October 30, 2014, the Court entered an Order which, in part, stated:
(Doc. 20 at 19) (emphasis in original). The case was set for trial to be held on January 15, 2015. (Doc. 29 at 14).
The morning of trial, counsel for the Plaintiff made an oral motion to continue the trial setting so that he could name additional defendants. That motion was granted and the trial was continued generally. (Doc. 30).
The Plaintiff filed her Second Amended Complaint on March 4, 2015. (Doc. 32). In addition to again naming Mike Rome Holdings, the Second Amended Complaint added the following new Defendants: Mike Rome; Pickett & Rome, LLC; Pickett & Rome, LLC d/b/a MRH & Associates; Benson, Pickett, Lauricella & Rome, LLC; and Benson, Pickett, Lauricella & Rome, LLC d/b/a MRH & Associates. (Doc. 32 at 3-4). Against all Defendants, the Second Amended Complaint states that same counts brought in the First Amended Complaint.
On May 29, 2015, when the new Defendants failed to respond to the Second Amended Complaint, the Plaintiff moved for the clerk to enter their default. (Doc. 38). On June 1, 2015, the Clerk of Court entered the default of the new Defendants. (Doc. 39).
Thereafter, on August 16, 2015, the Defendants filed an Answer to the Second Amended Complaint. (Doc. 44). Noting that the Answer violated Rules 8 and 11 of the Federal Rules of Civil Procedure, the Court ordered the Defendants to file an Amended Answer. (Doc. 45). The Defendants filed their Amended Answer on September 23, 2015. (Doc. 46).
This Court entered an Order on November 30, 2015, setting June 10, 2016, as the discovery deadline, and July 11, 2016, as the dispositive motion deadline. (Doc. 50 at 1, 5). On June 8, 2015, the parties filed a "Joint Motion for Extension of Deadlines," stating that the parties only need "an additional thirty (30) days to complete discovery." (Doc. 51 at 2). Further, the parties stated that they "believe[d] this additional time [would] allow them to resolve the outstanding discovery issues and [would] put them in a better position to resolve this matter through mediation or settlement or be prepared for trial if necessary." (Doc. 51 at 2). The parties asked this Court to "extend the Discovery deadline and all remaining deadlines by thirty (30) days." (Doc. 51 at 3). By margin order, this Court granted that motion on June 8, 2016 (doc. 52), making the new discovery deadline July 10, 2016, and the new dispositive motion deadline August 10, 2016.
On June 27, 2016, counsel for the Defendants filed a motion to withdraw, stating that his representation "was terminated on June 22, 2016." (Doc. 53). On June 28, 2016, the Court issued the following Order:
(Doc. 54 at 2) (emphasis in original). On July, 11, 2016, instead of complying with that Order, Defendants' counsel filed a notice stating: "[p]ursuant to the Order of this Honorable Court dated June 28, 2016, Mike Rome was delivered and served copy of that Order of this Court, dated June 28, 2016, via electronic mail on June 29, 2016." (Doc. 55 at 1). That same day, the Plaintiff filed a "Motion to Compel, or, Alternatively, to Extend Discovery Deadlines." (Doc. 56). In her motion, the Plaintiff noted that, after delays and promises of discovery responses and deposition dates, neither had been forthcoming, and that, until Defendants' counsel was allowed to withdraw, she could not contact the Defendants directly.
On July 19, 2016, this court entered an Order which, inter alia, stated:
(Doc. 57 at 2-3) (emphasis in original). After Defendants' counsel again filed certifications which did not comply with this Court's order (doc. 58), on July 25, 2016, this Court denied the motion to withdraw. (Doc. 59).
On August 18, 2016, this Court set a new dispositive motion deadline for November 14, 2016. (Doc. 60). On September 1, 2016, after Defendants' counsel filed a proper motion and certifications (doc. 61), this Court granted his motion to withdraw (doc. 62).
The instant motion for summary judgment was filed by the Plaintiff on December 12, 2016. (Doc. 67). It is now under submission. For the reasons stated herein, the motion will be
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits — or by the depositions, answers to interrogatories, and admissions on file — it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact — that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
The following facts are deemed to be admitted since they have been proffered by the Plaintiff and were not disputed by the Defendants:
(Ex. "C").
(Doc. 68 at 11-14).
Based on the admitted facts, the Court determines that each of the Defendants is a "debt collector," as defined by the FDCPA. See 15 U.S.C.A. § 1692a(6) ("any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts"). Similarly, the court determines that the Plaintiff is a "consumer" as defined by the FDCPA. See, 15 U.S.C.A. § 1692a(3) ("any natural person obligated or allegedly obligated to pay any debt").
The Plaintiff first moves for summary judgment as to Count One, which alleges a violation of section 1692c(a)(1). That section prohibits a debt collector from communicating with a consumer in connection with the collection of any debt "at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer."
The Plaintiff argues that she is entitled to summary judgment as to Counts Two, Three, and Six. Count Two alleges a violation of section 1692e, which generally prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." Count Three alleges a violation of section 1692e(2)(A), which specifically prohibits a debt collector from "[t]he false representation of . . . the character, amount, or legal status of any debt." Count Six alleges a violation of section 1692e(10), which prohibits a debt collector from "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer."
Because there was no judgment, or even any pending court action against the plaintiff, each of these sections was violated by the letter sent to the Plaintiff which falsely stated that "a garnishment summons or levy may be served upon your employer or other third parties, without any further court proceedings or notice to you, ten days or more from the date hereof," and "[y]ou have the right to request a hearing if you claim the garnishment is incorrect." These sections were also violated when the Defendants called the Plaintiff and verbally told her that if she did not pay they would send the account "straight to garnishment." (Doc. 68 at 13-14, ¶¶14, 18).
The Plaintiff also argues that the Defendants violated section 1692f, which prohibits a debt collector generally from using "unfair or unconscionable means to collect or attempt to collect any debt." The Amended Complaint also alleges a violation of section 1692f(1), which specifies that
15 U.S.C. § 1692(f)(1). For the reasons previously stated, the November 9, 2013, letter and the Defendants' verbal communications regarding garnishments violated these sections. Summary judgment will be granted in favor of the Plaintiff, and against all Defendants, as to Counts Eight and Nine, on the issue of liability.
The Plaintiff makes no argument in her motion regarding Counts Four, Five, Seven, and Ten. Summary judgment will be denied as to those counts.
The Plaintiff also argues that the Defendants violated section 1692d. (Doc. 68 at 17, 18). No count in the Second Amended Complaint requests relief under this section. "At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed.R.Civ.P. 15(a). A plaintiff may not amend her complaint through argument in a brief[.]" Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Summary judgment, to the extent that the Plaintiff argues for relief under section 1692d, will be denied.
The Plaintiff also makes an argument for damages. (Doc. 68 at 20-23). Damages must be resolved at the trial of this matter. Summary judgment will be denied on that issue. The Plaintiff also makes an argument for attorneys fees and costs, but notes that she "will submit a separate Application for Attorneys Fees and Costs." (Doc. 68 at 24). Accordingly, said request is not yet ripe. Summary judgment will be denied on that issue.
Based on the foregoing, it is hereby
By separate Order, this case will be set for jury trial.
(Doc. 5 at 17) (emphasis in original).
