Pinson v. Monarch Recovery Management, Inc.
Filing
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OPINION AND ORDER denying 12 Motion for Summary Judgment; denying 16 Motion for Sanctions Signed by Judge Kenneth A. Marra on 11/16/12. (tp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-80480-CIV-MARRA/BRANNON
JOHN PINSON,
Plaintiff,
vs.
MONARCH RECOVERY MANAGEMENT,
INC., a/k/a ACADEMY COLLECTION
SERVICE, INC.,
Defendant.
____________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendant’s Motion for Summary Judgment (DE 12)
and Plaintiff’s Motion for Sanctions (DE 16). The Court has carefully considered the Motions
and is otherwise fully advised in the premises.
On May 2, 2012, Defendant filed its Notice of Removal of pro se Plaintiff’s four-count
complaint brought pursuant to the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.
(DE 1.) Subsequently, on May 31, 2012, the Court issued its Scheduling Order, which set a
December 28, 2012 deadline for discovery and a January 15, 2013 deadline for the filing of
dispositive motions. (DE 7.) On September 10, 2012, Defendant filed its motion for summary
judgment. (DE 12.) A significant portion of that motion was devoted to Defendant’s argument
that it had a permissible purpose in obtaining Plaintiff’s credit report. (Id. at 4-5.)
In support of its motion, Defendant provided an affidavit from Diane Mazzacano. (DE
12-2.) This affidavit states that Ms. Mazzacano is Defendant’s chief administrative officer and
she has personal knowledge of the facts sworn to in the affidavit. Paragraph four of the affidavit
states that Defendant “had a reasonable basis to believe that the debt belonged to the named
Plaintiff.” Id. There are no facts set forth in the affidavit which explain what gave Defendant “a
reasonable basis to believe that the debt belonged to the named Plaintiff.” The Court finds that
this statement is conclusory and insufficient to support Defendant’s motion for summary
judgment.1 See Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (“This court
has consistently held that conclusory allegations without supporting facts have no probative
value.”) (quoting Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (internal
quotation marks omitted); Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.1985)
(“[C]onclusory allegations [in an affidavit] without specific supporting facts have no probative
value .”); see also Fed. R. Civ. P. 56(e) ( “[a] supporting or opposing affidavit must be made on
personal knowledge”); cf. Ellis v. England, 432 F.3d 1321, 1325-26 (11th Cir. 2005) (“mere
conclusions and unsupported factual allegations are legally insufficient to defeat a summary
judgment motion”); Bald Mountain Park Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.1989)
(“Mere conclusions and unsupported factual allegations are legally insufficient to create a dispute
to defeat summary judgment.”). Hence, the Court will deny Defendant’s motion without
prejudice. 2
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The Court also notes that Defendant referred to facts in its motion not supported by Ms.
Mazzacano’s affidavit. For example, the motion states that Defendant accessed Plaintiff’s credit
report “which matched with his social security number and address.” (DE 12 at 3.) Should
Defendant decide to re-file a summary judgment motion, it must correct this deficiency. See S.D.
Fla. L.R. 56(a)(2) (facts in summary judgment motion must “[b]e supported by specific
references to pleadings, depositions, answers to interrogatories, admissions, and affidavits on file
with the Court.”)
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Plaintiff should feel free to conduct discovery to pursue his claim, as requested in its
response to the summary judgment motion. The discovery cutoff is not until December 28, 2012.
(DE 7.)
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The Court will now address Plaintiff’s motion for Rule 113 sanctions. The Court will
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Rule 11 of the Federal Rules of Civil Procedure states in pertinent part:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or
other paper--whether by signing, filing, submitting, or later advocating it--an attorney or
unrepresented party certifies that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or
by a nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically
so identified, are reasonably based on belief or a lack of information.
...
(c) Sanctions.
(2) Motion for Sanctions. A motion for sanctions must be made separately from any
other motion and must describe the specific conduct that allegedly violates Rule
11(b). The motion must be served under Rule 5, but it must not be filed or be
presented to the court if the challenged paper, claim, defense, contention, or denial
is withdrawn or appropriately corrected within 21 days after service or within another
time the court sets. If warranted, the court may award to the prevailing party the
reasonable expenses, including attorney's fees, incurred for the motion.
...
(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery
requests, responses, objections, and motions under Rules 26 through 37.
Fed. R. Civ. P. 11.
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deny this motion. There is no indication that Plaintiff complied with the requirement contained
in Rule 11(c)(2) that the motion must be served on the other party prior to filing it with the Court.
Moreover, the basis for the motion is that Defendant served Plaintiff by email and not by mail,
that Defendant’s counsel made a false statement that the motion for summary judgment was
served by mail, that Defendant failed to respond to a discovery request and that it is inappropriate
for Defendant to file a motion for summary judgment when the discovery period is still open.
The Court rejects all of these contentions as a basis for a viable Rule 11 motion. Lack of service
by mail as opposed to email, a statement that may have been mistake as opposed to intentionally
dishonest, and the filing of a motion for summary judgment prior to the close of discovery do not
violate Rule 11. See Fed. R. Civ. P. 11(b). Furthermore, discovery complaints are not
sanctionable under Rule 11. Fed. R. Civ. P. 11(d). Therefore, the Court denies Plaintiff’s
motion for sanctions.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1)
Defendant’s Motion for Summary Judgment (DE 12) is DENIED WITHOUT
PREJUDICE.
2)
Plaintiff’s Motion for Sanctions (DE 16) is DENIED.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 16th day of November, 2012.
______________________________________
KENNETH A. MARRA
United States District Judge
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