Federal Trade Commission v. Consumer Collection Advocates,, et al

Filing

Opinion issued by court as to Appellants Consumer Collection Advocates, Corp. and Michael Robert Ettus. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-14437

Date Filed: 08/23/2016

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14437
Non-Argument Calendar
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D.C. Docket No. 0:14-cv-62491-BB

FEDERAL TRADE COMMISSION,
Plaintiff-Appellee,
versus
CONSUMER COLLECTION ADVOCATES, CORP.,
a Florida corporation,
MICHAEL ROBERT ETTUS,
individually and as an officer of Consumer Collection Advocates, Corp.,
Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 23, 2016)

Case: 15-14437

Date Filed: 08/23/2016

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Before HULL, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:
Defendants Consumer Collection Advocates, Corp. (“CCA”) and Michael
Robert Ettus, the sole owner and president of CCA, appeal the district court’s grant
of summary judgment to the Federal Trade Commission (“FTC”). After review,
we affirm.
The FTC brought this enforcement action alleging that the Defendants
engaged in deceptive practices in violation of Section 5(a) of the Federal Trade
Commission Act (“FTC Act”), 15 U.S.C. § 45(a), and the FTC’s Telemarketing
Sales Rule, 16 C.F.R. Part 310. Following discovery, the FTC filed a motion for
summary judgment. In compliance with Federal Rule of Civil Procedure 56(a) and
(c) and the Southern District of Florida’s Local Rule 56.1(a), the FTC supported its
summary judgment motion with a statement of undisputed material facts
containing citations to parts of the record.
The Defendants filed a response to the summary judgment motion that did
not comply with Rule 56(c)(1) in that many factual assertions were not supported
by citations to the record. In addition, the Defendants failed to file their own
statement of material facts in opposition to, or to controvert, the FTC’s statement
of facts, as required by the Southern District of Florida’s Local Rule 56.1(a).

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On September 8, 2015, the district court granted the FTC’s motion for
summary judgment. Because the Defendants had failed to comply with Rule 56(c)
and Local Rule 56.1, the district court deemed admitted the FTC’s statement of
facts, and found those facts to be “record-backed” and “well-supported.” The
district court then concluded that the uncontroverted facts, viewed in the light most
favorable to the Defendants, established as a matter of law that CCA had violated
Section 5(a) of the FTC Act and the Telemarketing Sales Rule, 16 C.F.R.
§§ 310.3(a)(2)(iii) and 310.4(a)(3), and that Defendant Ettus “had the requisite
knowledge, awareness, and involvement to impose individual liability” for those
violations. Thus, the FTC had carried its burden to show it was entitled to
judgment as a matter of law against both of the Defendants.
On appeal, the Defendants do not challenge the entry of summary judgment
as to CCA. Rather, the Defendants argue only that questions of material fact
existed as to whether Defendant Ettus was personally liable for CCA’s violations.
After reviewing the record and the parties’ briefs, we affirm the district
court’s entry of summary judgment in favor of the FTC and against Defendant
Ettus for the reasons outlined in the district court’s thorough September 8, 2015
order. The undisputed facts established that Defendant Ettus participated directly
in, and had authority to control, CCA’s deceptive practices and that he had some

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knowledge of those deceptive practices. See F.T.C. v. IAB Mktg. Assocs., 746
F.3d 1228, 1233 (11th Cir. 2014).
In addition, we conclude that the district court did not abuse its discretion
when it deemed the FTC’s statement of facts to be admitted for summary judgment
purposes. See Fed. R. Civ. P. 56(e)(2) (providing that the district court may
consider a fact undisputed if a party fails to address the assertion of fact as required
by Rule 56(c)); S.D. Fla. R. 56.1(b) (providing that the movant’s compliant
statement of facts is “deemed admitted unless controverted by the opposing party’s
statement, provided that the Court finds that the movant’s statement is supported
by evidence in the record”); see also Mann v. Taser Int’l, Inc., 588 F.3d 1291,
1302-03 (11th Cir. 2009) (concluding the district court did not abuse its discretion
in deeming admitted the moving party’s statement of facts to which the nonmoving party failed to respond in compliance with the Northern District of
Georgia’s substantially similar Local Rule 56.1).
AFFIRMED.

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