Richard Bryan Clymer v. Discover Bank et al
Filing
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ORDER GRANTING DEFENDANT BLEIER & COX'S MOTION FOR SUMMARY JUDGMENT by Judge Virginia A. Phillips re: 34 Motion for Summary Judgment. For the foregoing reasons, the Court GRANTS Defendant Bleier's Motion and DISMISSES Plaintiff's first, second, third, fourth, and ninth claims, with prejudice. (See document for specifics) (mrgo)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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11 RICHARD BRYAN CLYMER,
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Plaintiff, )
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v.
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DISCOVER BANK; BLEIER & )
COX; AND DOES 1 THROUGH )
5, INCLUSIVE,
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Defendants. )
________________________ )
Case No. EDCV 10-01526
VAP(DTBx)
[Motion filed on May 17,
2011]
ORDER GRANTING DEFENDANT
BLEIER & COX'S MOTION FOR
SUMMARY JUDGMENT
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The Court has considered the papers filed in support
20 of, and in opposition to, Defendant Bleier & Cox's
21 ("Bleier") motion for summary judgment ("Motion").
22 No. 34.)
(Doc.
For the reasons set forth below, the Court
23 GRANTS the Motion.
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I.
PROCEDURAL BACKGROUND
Plaintiff Richard Bryan Clymer ("Plaintiff"),
27 appearing pro se, filed a complaint on October 5, 2010,
28 against Defendant Discover Bank ("Discover"), asserting
1 claims for securities fraud and civil conspiracy.
2 No. 1.)
(Doc.
On February 5, 2011, Plaintiff filed a first
3 amended and supplemental complaint ("FAC"), adding
4 Defendant Bleier, striking the securities fraud and civil
5 conspiracy claims, and asserting claims for violations of
6 the Federal Fair Debt Collection Practices Act ("FDCPA"),
7 15 U.S.C. § 1692(g), and the Fair Credit Reporting Act
8 ("FCRA"), 15 U.S.C. §§ 1681b, 1681o, 1681s-2, 1681i.
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On March 17, 2011, Defendant Discover filed a motion
11 to dismiss (Doc. No. 18), which the Court granted in part
12 and denied in part (Doc. No. 36).
Specifically, the
13 Court dismissed Plaintiff's fifth and ninth claims for
14 violations of the FDCPA with prejudice and Plaintiff's
15 sixth and eighth claims for violations of the FCRA with
16 prejudice.
(Id.)
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On May 17, 2011, Defendant Bleier filed the Motion, a
19 memorandum of points and authorities (Def.'s Mem. P. &
20 A.), the declaration of Edgar N. De Vera ("De Vera
21 Decl."), and the declaration of Richard Golden ("Golden
22 Decl.") with exhibits A and B attached.
(Doc. No. 34.)
23 On June 8, 2011, the Court provided Plaintiff with a
24 notice regarding summary judgment procedures and
25 rescheduling the hearing on the Motion and the relevant
26 deadlines.
(Doc. No. 37.)
On June 8, 2011, Defendants
27 filed a separate statement of uncontroverted facts and
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1 conclusions of law ("SUF").
(Doc. No. 38.)
On June 9,
2 2011, Plaintiff filed an opposition ("Opposition").
3 (Doc. No. 43.)
On June 14, 2011, Defendant Bleier filed
4 a notice of errata related to the Golden Declaration.
5 (Doc. No. 44 ("Golden Decl. II").)
On June 27, 2011,
6 Defendant filed a reply ("Reply") (Doc. No. 49) and
7 "Objections to Plaintiff's Evidence" (Doc. No. 50
8 ("Def.'s Obj.")).
On July 1, 2011, Plaintiff filed an
9 opposition to Defendant's SUF ("Pl.'s Obj.") (Doc. No.
10 54), the affidavit of Bryan Clymer ("Clymer Decl.") (Doc.
11 No. 55), and a statement of genuine disputes ("SGI")
12 (Doc. No. 56).
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II. FACTUAL BACKGROUND
Both sides cite facts that are not relevant to
16 resolution of the Motion.
To the extent certain facts
17 are not mentioned in this Order, the Court has not relied
18 on them in reaching its decision.
Furthermore, except as
19 described below, the Court overrules the parties'
20 objections, but has independently considered the
21 admissibility of the evidence underlying the SUF and the
22 SMF, and has not considered facts that are irrelevant or
23 based upon inadmissible evidence.
Finally, certain
24 proposed facts are not adequately supported by the cited
25 evidence; as to those proposed facts, the Court has
26 considered and relied on the underlying evidence and
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1 found facts supported by that evidence, to the extent the
2 evidence itself was admissible.
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The Court finds the following material facts are
5 supported adequately by admissible evidence and are
6 uncontroverted.
They are "admitted to exist without
7 controversy" for the purposes of these Motions.
L.R. 56-
8 3; see generally Fed. R. Civ. P. 56.
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Defendant Bleier attempted to collect a debt from
11 Plaintiff related to a credit card with Defendant
12 Discover.
(SUF 1, 12; FAC ¶ 6.)
On March 3, 2009,
13 Plaintiff sent a letter to Defendant Discover disputing
14 the debt.
(Id.)
Defendant Bleier contends it never
15 received Plaintiff's March 3, 2009, dispute letter;
16 Plaintiff alleges that Bleier received the letter when
17 Discover provided Bleier with Plaintiff's file.
18 Plaintiff does not have personal knowledge of what Bleier
19 did or did not receive in the file from Discover,
20 however, and offers no evidence to support his naked
21 contention that Bleier received his dispute letter.
22 Plaintiff accordingly has not raised a genuine issue that
23 Bleier received or otherwise had knowledge of his dispute
24 letter.
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Plaintiff further contends that Defendant Bleier
2 continued to attempt to collect the debt from him,
3 including sending collection letters to Plaintiff on
4 March 25, 2009, and April 30, 2009.
Plaintiff offers no
5 admissible evidence to support this assertion nor does he
6 attach the alleged letters from Bleier.
On the other
7 hand, Bleier presents evidence, in the form of a sworn
8 declaration, that it did not send the collection letters.
9 Specifically, Defendant Bleier presents evidence that it
10 was assigned Plaintiff's debt on July 9, 2009,1 several
11 months after Plaintiff received the letters.
(See SUF 9;
12 Golden Decl. II ¶ 2.)
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Finally, Defendant Bleier made a formal inquiry on
15 Plaintiff's credit report in September 2009.
16 ¶¶ 7-10.)
(SUF 5; FAC
Plaintiff argues Bleier did not have
17 Plaintiff's consent to do so, nor a permissible purpose
18 under the FCRA.
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III. LEGAL STANDARD
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A court shall grant a motion for summary judgment
22 when there is no genuine issue as to any material fact
23 and the moving party is entitled to judgment as a matter
24 of law.
Fed. R. Civ. P. 56(a); Anderson v. Liberty
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Plaintiff attaches a copy of his credit report to
the Opposition. Plaintiff has not authenticated the
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document properly, however, and the Court accordingly has
28 not considered it.
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1 Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The moving
2 party must show that "under the governing law, there can
3 be but one reasonable conclusion as to the verdict."
4 Anderson, 477 U.S. at 250.
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Generally, the burden is on the moving party to
7 demonstrate that it is entitled to summary judgment.
8 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998)
9 (citing Anderson, 477 U.S. at 256-57); Retail Clerks
10 Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030,
11 1033 (9th Cir. 1983).
The moving party bears the initial
12 burden of identifying the elements of the claim or
13 defense and evidence that it believes demonstrates the
14 absence of an issue of material fact.
Celotex Corp. v.
15 Catrett, 477 U.S. 317, 323 (1986).
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Where the non-moving party has the burden at trial,
18 however, the moving party need not produce evidence
19 negating or disproving every essential element of the
20 non-moving party's case.
Celotex, 477 U.S. at 325.
21 Instead, the moving party's burden is met by pointing out
22 that there is an absence of evidence supporting the non23 moving party's case.
Id.; Horphang Research Ltd. v.
24 Garcia, 475 F.3d 102,
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The burden then shifts to the non-moving party to
2 show that there is a genuine issue of material fact that
3 must be resolved at trial.
Fed. R. Civ. P. 56(c);
4 Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256.
The
5 non-moving party must make an affirmative showing on all
6 matters placed in issue by the motion as to which it has
7 the burden of proof at trial.
8 Anderson, 477 U.S. at 252.
Celotex, 477 U.S. at 322;
See also William W.
9 Schwarzer, A. Wallace Tashima & James M. Wagstaffe,
10 Federal Civil Procedure Before Trial § 14:144.
A genuine
11 issue of material fact will exist "if the evidence is
12 such that a reasonable jury could return a verdict for
13 the non-moving party."
Anderson, 477 U.S. at 248.
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In ruling on a motion for summary judgment, a court
16 construes the evidence in the light most favorable to the
17 non-moving party.
Scott v. Harris, 550 U.S. 372, 378,
18 380 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th
19 Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec.
20 Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).
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IV.
DISCUSSION
Plaintiff brings the following claims against
24 Defendant Bleier:
(1) violation of the FDCPA, 15 U.S.C.
25 § 1692(g); and (2) violations of the FCRA, 15 U.S.C. §§
26 1681(b), 1681(o).
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1 A.
FDCPA Claims (Plaintiff's First, Fourth, and Ninth
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Claims)
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Plaintiff alleges three claims against Bleier for
4 violations of the FDCPA.
The applicable statute of
5 limitations under the FDCPA is one year:
"An action to
6 enforce any liability created by this title may be
7 brought in any appropriate United States district court
8 without regard to the amount in controversy, or in any
9 other court of competent jurisdiction, within one year
10 from the date on which the violation occurs."
11 § 1692k(d) (emphasis added).
15 U.S.C.
As noted above, Plaintiff
12 bases his FDCPA claims on two letters Bleier allegedly
13 sent on March 25, 2009, and April 30, 2009, but offers no
14 evidence that Bleier sent these letters.
Plaintiff
15 attaches as exhibits to his declaration two letters from
16 another law firm, Zwickler & Associates, P.C.
17 Decl., Ex. 1.)
(Clymer
Plaintiff presents no evidence that
18 Bleier was the law firm that sent him letters containing
19 the alleged violations.
Moreover, even assuming Bleier
20 sent the letters, under the applicable statute of
21 limitations, Plaintiff was required to file his FDCPA
22 claims by April 30, 2010.
Plaintiff filed this action on
23 October 5, 2010, well after the expiration of the one24 year limitations period.
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Plaintiff contends he did not discover the violations
2 until February 2010.
(Opp'n at 2.)
3 belied by the evidence, however.
This argument is
Specifically, Plaintiff
4 states Defendant Bleier sent the letters on March 25,
5 2009, and April 30, 2009.
By Plaintiff's own account, he
6 therefore became aware of the alleged violations at that
7 time.
Thus, Plaintiff's FDCPA claims are barred by the
8 statute of limitations.
The Court accordingly GRANTS
9 Defendant Bleier's Motion as to Plaintiff's First,
10 Fourth, and Ninth Claims, with prejudice.
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12 B.
FCRA Claims (Plaintiff's Second and Third Claims)
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Plaintiff bases his claim that Bleier violated the
14 FCRA on his allegation that Bleier obtained Plaintiff's
15 credit report from a consumer reporting agency without a
16 "permissible purpose."
(See Opp'n at 2.)
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The FCRA creates a private right of action through a
19 provision that provides:
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Any person who willfully fails to comply with any
requirement imposed under this subchapter with
respect to any consumer is liable to that consumer
in an amount equal to the sum of–
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(1) (A) any actual damages sustained by the
consumer as a result of the failure or damages
of not less than $100 and not more than $1,000;
or
(B) in the case of liability of a natural
person for obtaining a consumer report under
false
pretenses
or
knowingly
without
a
permissible purpose, actual damages sustained
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by the consumer as a result of the failure or
$1,000, whichever is greater;
(2) such amount of punitive damages as the court
may allow; and
(3) in the case of any successful action to enforce
any liability under this section, the costs of the
action together with reasonable attorney's fees as
determined by the court.
15 U.S.C. § 1681n; see also § 1681o (providing civil
6 liability for negligent noncompliance, but only for
7 consumers' actual damages); Nelson v. Chase Manhattan
8 Mortg. Corp., 282 F.3d 1057, 1059 (9th Cir. 2002)
9 ("[W]ith these words Congress created a private right of
10 action for consumers").
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Although a party may not "obtain a consumer report"
13 unless it is "obtained for a purpose" authorized by FCRA,
14 see 15 U.S.C. § 1681b(f), Plaintiff's conclusory
15 allegation that Bleier lacked a "permissible purpose"
16 (see Opp'n at 2) is insufficient to create a genuine
17 issue of fact.
The FCRA expressly permits receipt of a
18 consumer report for use "in connection with a credit
19 transaction involving the consumer on whom the
20 information is to be furnished and involving the . . .
21 collection of an account of [ ] the consumer."
22 U.S.C. § 1681b(a)(3)(A).
See 15
Here, Bleier has presented
23 evidence it was attempting to collect what it believed to
24 be a valid credit card debt.
(Golden Decl. ¶ 2.)
25 Plaintiff has presented no evidence that Bleier was aware
26 of Plaintiff's dispute letter or that Bleier obtained
27 Plaintiff's credit report for any other purpose than to
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1 collect a debt it had been assigned.
The Court
2 accordingly GRANTS Defendant Bleier's Motion as to
3 Plaintiff's second and third claims, with prejudice.
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V.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant
7 Bleier's Motion and DISMISSES Plaintiff's first, second,
8 third, fourth, and ninth claims, with prejudice.
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12 Dated:
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July 29, 2011
VIRGINIA A. PHILLIPS
United States District Judge
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