Wolfe v. Emcare, Inc.

Filing 118

ORDER granting 86 Motion for summary judgment. The Clerk of Court is directed to enter judgment for the Defendant and against the Plaintiff, to close this case, and to terminate any pending motions. Signed by Judge Elizabeth A. Kovachevich on 3/24/2015. (SN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TERENCE K. WOLFE,
Plaintiff,

vs.

CASE NO. 8:13-CIV-2308-T-EAK-TGW

EMCARE, INC.,
Defendant.
/
ORDER ON MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on the following: Defendant’s motion for
summary judgment (Doc. 86); response (Doc. 97); Defendant’s reply (Doc. 104) and
supplement to the reply (Doc. 114).
The Plaintiff filed this case pro se against Emcare, Inc. (Emcare) asserting
claims for violation of the Florida Consumer Collections Practices Act (FCCPA), Fla.
Stat. Chap 559, et seq., and on amended complaint, for violation of the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq.
STANDARD OF REVIEW
This circuit clearly holds that summary judgment should only be entered when
the moving party has sustained its burden of showing the absence of a genuine issue as
to any material fact when all the evidence is viewed in the light most favorable to the
nonmoving party. Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir. 1983). All

doubt as to the existence of a genuine issue of material fact must be resolved against
the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994,
996-7 (5th Cir. 1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th
Cir. 1969). Factual disputes preclude summary judgment.
The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477
U.S. 317, 91 L.Ed.2d 265, 106 S.Ct. 2548, (1986):
In our view the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party
who fails 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. Id. at 273.
The Court also said, "Rule 56(e) therefore requires that nonmoving party to go
beyond the pleadings and by her own affidavits, or by the 'depositions, answers to
interrogatories, and admissions on file,' designate 'specific facts showing there is a
genuine issue for trial.'" Celotex Corp., at p. 274. As the district court in Coghlan v.
H.J. Heinz Co., 851 F.Supp. 808 (N.D. Tex. 1994), summarized:
Although a court must "review the facts drawing all inferences most favorable
to the party opposing the motion,"...the nonmovant may not rest on mere
allegations or denials in its pleadings; in short, "the adverse party's response...
must set forth specific facts showing that there is a genuine issue for trial."
FED.R.CIV.P. 56(e). However, merely colorable evidence or evidence not
significantly probative will not defeat a properly supported summary
judgment...The existence of a mere scintilla of evidence will not suffice...(cites
omitted) at 810-811.
The Court must “draw inferences from the evidence in the light most favorable to the
non-movant and resolve all reasonable doubts in that party’s favor.” Speciality Malls
of Tampa v. The City of Tampa, 916 F.Supp 1222 (Fla. M.D. 1996). (emphasis
added) A court is not required to allow a case to go to trial “when the inferences that
are drawn from the evidence, and upon which the non-movant relies are <implausible.’”
Mize v. Jefferson City Board of Education, 93 F.3d 739, 743 (11th Cir. 1996). A

court, however, may only consider “that evidence which can be reduced to an
admissible form,” Rowell v. BellSouth Corp., 433 F.3d 794, 799 (11th Cir. 2005). The
existence of some factual disputes between the litigants will not defeat an otherwise properly
supported summary judgment motion; “the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)(emphasis in
original). The substantive law applicable to the claimed causes of action will identify which
facts are material. Id. In considering the evidence, the court resolves all reasonable

doubts about the facts in favor of the non-moving party and draws all justifiable
inferences in its favor. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004). The court does not, however, weigh the evidence or make
findings of fact. Anderson, 477 U.S. at 249-50.
The case has a somewhat tortured procedural background but the Court is
satisfied that the motion for summary judgment is ripe and the Plaintiff has been fully
informed that this Court will resolve the motion for summary judgment. The Plaintiff
requested an extension of time before the case should proceed to resolution of the
motion. Over the objection of the Defendant, the Court found that the Plaintiff should
be given some leniency in his prosecution of this case. The Court stayed the case for a
ninety day period, or until January 27, 2015. The Plaintiff had up to and including that
date to respond to any pending motions to which he had not previously responded.
The Court made it clear that any ripe motions could be taken under consideration at the
expiration of this stay. The deadline passed and been exceeded and Plaintiff has taken
no further action. The following facts have been established in the Defendant’s motion
for summary judgment:
On March 10, 2012, Plaintiff received medical treatment at Brandon Regional
Hospital for a cut to his right thumb. (Doc. 2 at ¶ 3). Thereafter, on or about
April 9, 2012, plaintiff received a medical bill “from an entity denominated as
‘Oakfield Drive Emerg Physician’. . . demanding payment of a total of
$1,238.00 for Mr. Wolfe’s [Brandon Regional Hospital] ER visit . . . .” Id. at ¶
4. On April 13, 2012, plaintiff tendered a $50 check in what he claimed to be a
“full accord and satisfaction” of the debt under Florida law. Id. at ¶ 5.

Later, plaintiff received additional bills from ODEP. Id. at ¶¶ 9-11. Eventually,
ODEP placed plaintiff’s account with NCO Financial Systems, Inc. (NCO) for
collection. Id. at ¶ 12. NCO made additional attempts to contact plaintiff, and at
some point credit reported the debt. Id. at ¶¶ 13-18. Plaintiff never received any
correspondence directly from Emcare, and plaintiff does not allege Emcare ever
made any attempts to collect the debt from him. See Id.
On July 8, 2013, plaintiff, pro se, filed this lawsuit in Florida state court
alleging Emcare violated the FCCPA under the theory that “ODEP has no
independent existence . . . but is merely a name used by Emcare for a billing
office.” (Doc. 1.2 at ¶ 2). (Doc. 86, pg.2)
The motion for summary judgment is supported by the affidavit of Patricia Barnett,
Divisional Billing Manager for Emcare. The affidavit sets forth the following:
Emcare contracts with medical providers, including hospitals such as
Brandon Regional Hospital, to provide practice management services. Emcare
does not actually employ physicians or provide medical care, but when
necessary may locate third party subcontractors to provide such services for its
clients, in this case Brandon Regional Hospital.
Oak
field Drive Emergency Physicians (ODEP) is a Florida
physician practice group that provides physician services to Emcare
clients. In this case, ODEP provided emergency physician services
to Brandon Regional Hospital. ODEP bills patients directly for
services provided by its physicians. Emcare and ODEP have no
corporation affiliation. Emcare is not and has never been a
shareholder, parent, subsidiary or corporate affiliate of ODEP.
The documents plaintiff produced in discovery show he received
medical treatment from ODEP physicians during his March 10,
2013 visit to the Brandon Regional Hospital Emergency room
incurring a debt to ODEP. Thereafter, ODEP billed plaintiff for its
services.
Emcare is not the creditor of, and has no interest in, plaintiff's
medical debt at issue. Further. Emcare does not provide billing
services for ODEP, and, as such, never billed Mr. Wolfe for the
medical s e r v i c e s he received at Brandon Regional Hospital.
Further, Emcare d i d not attempt to call plaintiff, or s e n d plaintiff
any letters. Emcare never made any attempt to collect a debt from

plaintiff: never made any attempt (sic) contact Mr. Wolfe, and did not
place Mr. Wolfe's debt with any third party for collection. (Doc.
86, Ex.
B).

DISCUSSION
The matter before the Court initially is whether or not the Plaintiff
has brought an action against the appropriate defendant. The Defendant
asserts that it has never attempted to collect a debt from the Plaintiff, nor
does Emcare have a corporate affiliation with the creditor, Oakfield Drive
Emergency Physicians (Oakfield). The Defendant has come forth with
evidence that it is not the proper party to this action. The affidavit of
Patricia Barnett establish that factual basis.
The Plaintiff has failed to provide his own affidavits, depositions,
answers to interrogatories, or admissions to designate specific facts showing
there is a genuine issue for trial. The Plaintiff’s response is mostly
accusations against the Court and the assigned magistrate judge. The
Plaintiff complains he has not had sufficient discovery. The Court does not
agree with his assertions. This action has been pending in this venue since
September 2013, the Plaintiff has refused to be deposed and has failed to
cooperate with or participate in discovery. He failed to take the opportunity
to amend his complaint to drop the federal charges because the Court
determined it would retain jurisdiction over the state claims. The record is
replete with examples of the Plaintiff’s continuing unwillingness to proceed

forward in the discovery process. The response provides no opposition, of a
competent nature, to the motion for summary judgment. The Court finds
that the Plaintiff has named the wrong defendant in this action and judgment
must be entered for the Defendant. Accordingly, it is
ORDERED that the motion for summary judgment (Doc. 86) is
granted. The Clerk of Court is directed to enter judgment for the Defendant
and against the Plaintiff, to close this case, and to terminate any pending
motions.
DONE and ORDERED in Chambers, in Tampa, Florida, this 24th
day of March, 2015.

Copies to: All parties and counsel of record