Bartlett v. Blaser et al

Filing 51

MEMORANDUM DECISION AND ORDER Defendants' Motion for Summary Judgment (Docket No. 19 ) is GRANTED; Plaintiff's Motion to Compel (Docket No. 21 ) is DENIED as moot; Defendants' Amended Motion for Summary Judgment (Docket No. 26 ) is DENIED as moot; Plaintiff's Motion for Summary Judgment (Docket No. 38 ) is DENIED; Plaintiff's Motion to Amend to Seek Punitive Damages (Docket No. 39 ) is DENIED as moot; and Plaintiff's Amended Motion for Summary Judgment (Docket No. 49 ) is DENIED as moot. Signed by Judge Ronald E. Bush. ((jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

RUSSELL BARTLETT,
Plaintiff,

Case No.: 4:13-cv-00017-REB
MEMORANDUM DECISION AND
ORDER RE:

vs.
BLASER, SORENSEN & OLESON, Chartered, an
Idaho corporation, STEPHEN J. BLASER, an
individual,
Defendants.

DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
(Docket No. 19)
PLAINTIFF’S MOTION TO
COMPEL
(Docket No. 21)
DEFENDANTS’ AMENDED MOTION
FOR SUMMARY JUDGMENT
(Docket No. 26)
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
(Docket No. 38)
PLAINTIFF’S MOTION TO AMEND
TO SEEK PUNITIVE DAMAGES
(Docket No. 39)
PLAINTIFF’S AMENDED MOTION
FOR SUMMARY JUDGMENT
(Docket No. 49)

Now pending before the Court are the following motions: (1) Defendants’ Motion for
Summary Judgment (Docket No. 19), (2) Plaintiff’s Motion to Compel (Docket No. 21), (3)
Defendants’ Amended Motion for Summary Judgment (Docket No. 26), (4) Plaintiff’s Motion
for Summary Judgment (Docket No. 38), (5) Plaintiff’s Motion to Amend to Seek Punitive

MEMORANDUM DECISION AND ORDER - 1

Damages (Docket No. 39), and (6) Plaintiff’s Amended Motion for Summary Judgment (Docket
No. 49). Having carefully considered the record, participated in oral argument,1 and otherwise
being fully advised, the Court enters the following Memorandum Decision and Order:
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
1.

In late May/early June 2011, Plaintiff performed plumbing work for Rebecca and

Robert Trigg (the “Triggs”) at the Triggs’ residence in Pocatello, Idaho. See Defs.’ SOF Nos. 57 (Docket No. 20, Att. 1) (citing Ex. A to Blaser Decl. ¶ 6 (Docket No. 20, Att. 2)).
2.

On August 30, 2011, the Triggs’ insurer, Property & Casualty Insurance

Company of Hartford (“Hartford”), sent a letter to Plaintiff indicating that the Triggs were
making a claim for water damage, stating that the damages resulted from Plaintiff’s negligence
and requesting that Plaintiff pay the claim amount of $10,344.69. See id. at No. 8 (citing Ex. B
to Blaser Decl. ¶ 7 (Docket No. 20, Att. 2) (“This company carries insurance for the abovenamed insured. Under the coverage provisions of our policy we were obligated to pay damages
in the above amount. Our investigation indicates that the damages resulted from your
negligence.”)).

1

On January 7, 2014, the Court held a telephonic hearing on Plaintiff’s Motion to
Compel (Docket No. 21) and Defendants’ Amended Motion for Summary Judgment (Docket No.
26) (at least insofar as adding the argument referenced therein). See 1/7/14 Minute Entry
(Docket No. 36). On January 30, 2014, the Court then held an in-person hearing on Defendants’
Motion for Summary Judgment (Docket No. 19) and Defendants’ Amended Motion for
Summary Judgment (Docket No. 26). Before the January 30, 2014 hearing, on January 10, 2014,
Plaintiff filed his own Motion for Summary Judgment (Docket No. 38) along with a Motion to
Amend to Seek Punitive Damages (Docket No. 39) – these motions were not heard at the
January 30, 2014 hearing. Oral argument also did not take place for Plaintiff’s subsequentlyfiled Amended Motion for Summary Judgment (Docket No. 49). Still, given the interrelated
issues presented within these motions, coupled with the oral argument that has taken place with
respect to certain of these motions, this Memorandum Decision and Order attempts to once-andfor-all “settle the water” on all outstanding motions.
MEMORANDUM DECISION AND ORDER - 2

3.

On September 27, 2011, Plaintiff’s insurer, American National Property and

Casualty (“ANPAC”), sent a letter to Hartford denying Hartford’s claim and concluding that the
damages were not the result of Plaintiff’s negligence. See id. at No. 10 (citing Ex. C to Blaser
Decl. ¶ 8 (Docket No. 20, Att. 2) (“Our insured advises when he responded to the call to repair
the leak at your insured’s home, he found water damage which appeared to have been there for
one to two months. Our insured responded to the work order . . . and did the repairs as needed.
This water damage was not a result of our insured’s negligence.”)).
4.

On September 30, 2011, Hartford sent Plaintiff another letter demanding that

Plaintiff satisfy the loss resulting from his alleged negligence. See id. at No. 11 (citing Ex. D to
Blaser Decl. ¶ 9 (Docket No. 20, Att. 2) (“We have not received a response from you to our
previous requests for reimbursement. This is your final opportunity to resolve this matter
amicably. The Hartford has now prepared this matter to be sent to our legal counsel to pursue
collection on the above referenced loss.”)).
5.

On October 25, 2011, ANPAC sent another letter to Hartford, again denying the

claim on the basis that Plaintiff was not negligent. See id. at No. 12 (citing Ex. E to Blaser Decl.
¶ 10 (Docket No. 20, Att. 2) (“Our insured advises when he responded to the call to repair the
leak at your insured’s home, he found water damage which appeared to have been there for one
to two months. Our insured responded to the work order . . . and did the repairs as needed. This
water damage was not a result of our insured’s negligence.”)).
6.

On August 14, 2012, Defendant Blaser, on Hartford’s behalf, wrote to Plaintiff,

indicating his representation of Hartford and seeking collection for a water damage loss claim
that occurred on May 21, 2011. See id. at No. 13 (citing Ex. F to Blaser Decl. ¶ 11 (Docket No.

MEMORANDUM DECISION AND ORDER - 3

20, Att. 2)). That letter asserted the claim was delinquent and in arrears totaling $10,344.69. See
id. Additionally, it said: “YOU ARE HEREBY NOTIFIED THAT WE ARE ATTEMPTING
TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR
THAT PURPOSE.” Id. (emphasis in original). Apparently, Plaintiff never received the letter.
See id. at Nos. 14-15 (citing Exs. G & H to Blaser Decl. ¶ 12 (Docket No. 20, Att. 2)).
7.

On September 25, 2012, Defendants, on Hartford’s behalf, filed a complaint

against Plaintiff in the Seventh Judicial District of the State of Idaho, Bingham County (the
“state court action”). See id. at No. 16 (citing Ex. I to Blaser Decl. ¶ 13 (Docket No. 20, Att. 2)).
In pertinent part, the state court action alleges:
That Defendant [(in the state court action, but Plaintiff in this action)] owes Plaintiff
[(in the state court action, but Defendants here)] the sum of $10,344.69, together with
interest at the rate of 12% and carrying charges as allowed by law from July 5th,
2012, for goods and/or monies loaned to Defendant [(in the state court action, but
Plaintiff in this action)] by Plaintiff [(in the state court action, but Defendants here)]
....
See id. According to Defendants themselves, the state court action “appears like a debt
collection, but is intended to be a subrogation claim for Hartford’s payment of damages incurred
by its insureds, the Triggs, as a result of Bartlett’s alleged negligence.” Id
8.

On October 7, 2012, Plaintiff (in this action, but the defendant in the state court

action) was served with the state court action’s complaint. See id. at No. 17 (citing Blaser Decl.
¶ 14 (Docket No. 20, Att. 2)). On October 22, 2012, Plaintiff’s counsel made an appearance in
the state court action and filed a motion for change of venue. See id. at No. 18 (citing Ex. J to
Blaser Decl. ¶ 15 (Docket No. 20, Att. 2)).2

2

At that time, Plaintiff’s counsel was Bryan Smith of Smith, Driscoll & Associates,
PLLC – the firm which also initially represented Plaintiff in this action. See Defs.’ SOF No. 18
(Docket No. 20, Att. 1). On November 1, 2012, Powers Tolman, PLLC entered an appearance
for Plaintiff and filed a substitution of counsel to replace Smith, Driscoll & Associates, PLLC.
See id. at No. 19 (citing Ex. K to Blaser Decl. ¶ 16 (Docket No. 20, Att. 2).
MEMORANDUM DECISION AND ORDER - 4

9.

On November 2, 2012, Hartford and Plaintiff (in this action, but the defendant in

the state court action) executed and filed a stipulation for change of venue in the state court
action. See id. at No. 20 (citing Ex. L to Blaser Decl. ¶ 17 (Docket No. 20, Att. 2)).
10.

On November 6, 2012, an order was entered in the state court action transferring

venue from Bingham County, Idaho to Jefferson County, Idaho. See id. at No. 21 (citing Ex. M
to Blaser Decl. ¶ 18 (Docket No. 20, Att. 2)).
11.

On December 21, 2012 attorney Smith (the defendant’s original attorney in the

state court action, and, now, Plaintiff’s attorney in this action) sent a letter to Defendant Blaser
demanding payment of $641.40 in fees and costs incurred in the preparing and filing the motion
for change of venue. See id. at No. 25 (citing Ex. Q to Blaser Decl. ¶ 22 (Docket No. 20, Att.
2)). In his letter, attorney Smith characterized Hartford’s complaint in the state court action as
an effort “to collect a consumer debt” and that “[y]our filing a lawsuit against [Plaintiff] in a
county where he does not reside is contrary to law.” Id.
12.

On January 7, 2013, Plaintiff (in this action, but the defendant in the state court

action) answered Hartford’s complaint in the state court action, asserting certain tort defenses,
including superseding and/or intervening causes (first affirmative defense), comparative
negligence (second affirmative defense), failure to mitigate (third affirmative defense), no
proximate cause (fourth and seventh affirmative defenses), and tort damages/liability limitations
(fifth affirmative defense). See id. at No. 22 (citing Ex. N to Blaser Decl., ¶ 19 (Docket No. 20,
Att. 2)).
13.

On January 9, 2013, Plaintiff filed his Complaint in this action, asserting three

substantive claims against Defendants: (1) Violation of Federal Fair Debt Collection Practices

MEMORANDUM DECISION AND ORDER - 5

Act – Improper Venue (Count I); (2) Violation of Federal Fair Debt Collection Practices Act –
Failure to Provide Proper Notice (Count II); and (3) Abuse of Process (Count III). See Compl.,
pp. 2-4 (Docket No. 1). In particular, Plaintiff contends that Defendants violated the Fair Debt
Collection Practices Act (“FDCPA”) by improperly filing the state court action in Bingham
County, Idaho against Plaintiff, a Jefferson County, Idaho resident, to collect a consumer debt.
See id. at pp. 2-3. As to the alleged consumer debt, Plaintiff claims that Defendants (as debt
collectors under the FDCPA) failed to send Plaintiff written notice at least 30 days before filing
the state court action. See id. at p. 3. Plaintiff asserts that Defendants’ conduct in these respects
amounts to an abuse of process. See id. at pp. 3-4.
14.

On February 7, 2013, attorney Justin Oleson, an attorney with Defendant Blaser,

Sorensen & Oleson, replied to attorney Smith’s December 21, 2012 letter, enclosed a check in
the amount of $641.40, and requested that this action be dismissed. See Defs.’ SOF No. 27
(Docket No. 20, Att. 1) (citing Ex. R to Blaser Decl., ¶ 24 (Docket No. 20, Att. 2)).
15.

On March 7, 2013, attorney Smith responded to attorney Oleson’s February 7,

2013 letter, stating: “Please find enclosed the check you sent our office in the amount of
$641.40. Our client has rejected your offer. This means that you will need to file an appearance
so that we can move the case forward.” Id. at No. 28 (citing Ex. S to Blaser Decl., ¶ 25 (Docket
No. 20, Att. 2)).
16.

On April 18, 2013, Hartford filed an amended complaint in the state court action.

See Defs.’ SOF No. 23 (citing Ex. O to Blaser Decl., ¶ 20 (Docket No. 20, Att. 2)). Hartford’s
amended complaint states in relevant part:
•

“Plaintiff’s claim is in the nature of subrogation, based upon the
tortious conduct of the Defendant [in the state court action, but
Plaintiff in this action] set forth herein.”

MEMORANDUM DECISION AND ORDER - 6

•

“Plaintiff’s claim is not based upon any debt arising out of any
transaction between the parties, which was primarily for personal,
family, or household purposes.”

•

“Pursuant to its insurance policy, Plaintiff paid for the damage to
Robert and Rebecca Trigg’s home in the amount of $10,344.69 and
is subrogated to its home in an amount not less than $10,344.69 and
is subrogated to its insured’s rights against the Defendant [in the state
court action, but Plaintiff in this action] of its payment.”

•

“Plaintiff’s claim is a subrogation and not a debt arising out of any
transaction with the Defendant [in the state court action, but Plaintiff
in this action] which was primarily for personal or household
payment.”

Ex. O to Blaser Decl., ¶ 20 (Docket No. 20, Att. 2). Notably, the caption of the amended
complaint identifies Hartford “as subrogee” of the Triggs. See id.
17.

On April 29, 2013, Plaintiff (in this action, but the defendant in the state court

action) answered Hartford’s amended state court complaint, asserting the identical tort defenses
as those raised in its answer to Hartford’s original complaint, including superseding and/or
intervening causes (first affirmative defense), comparative negligence (second affirmative
defense), failure to mitigate (third affirmative defense), no proximate cause (fourth and seventh
affirmative defenses), and tort damages/liability limitations (fifth affirmative defense). See
Defs.’ SOF No. 24 (Docket No. 20, Att. 1) (citing Ex. P to Blaser Decl., ¶ 21 (Docket No. 20,
Att. 2)). Therein, Plaintiff (in this action, but the defendant in the state court action) also
admitted that Hartford’s amended complaint represented a subrogation claim; and that it was
unaware of any debt or transaction between itself and Hartford. See id.
18.

On October 24, 2013, Defendants filed their Motion for Summary Judgment,

effectively seeking the dismissal of this action. See Defs.’ MSJ (Docket No. 19). At its core,
MEMORANDUM DECISION AND ORDER - 7

Defendants’ Motion argues that Plaintiff’s reliance on the FDCPA is misplaced because (1) the
state court action was never an attempt to collect a “debt” under the FDCPA but, rather, damages
incurred by Hartford as a result of Plaintiff’s negligence in relation to the plumbing work
performed at the Triggs’ residence in 2011 – in essence, that the state court action represents a
subrogation case, not a debt collection case; (2) Defendants are not “debt collectors” under the
FDCPA given that Plaintiff’s obligation/liability to Hartford via the state court action has not yet
been determined; and (3) Defendants’ earlier reference to Plaintiff’s obligation as a debt in the
state court action’s original complaint is inconsequential because Defendants cannot waive
themselves into the FDCPA’s application. See Mem. in Supp. of Defs.’ MSJ., pp. 1-10 (Docket
No. 20).3
19.

On November 14, 2013, Plaintiff filed his Motion to Compel, claiming that

Defendants have raised improper objections and have provided incomplete responses to certain
interrogatories. See Mot. to Compel (Docket No. 21). According to Plaintiff, the information
sought is relevant (1) “to establish[ ] that Defendant is a debt collector and that he abused the
process,” and (2) “to refute[ ] Defendant’s bona fide error and mistake defense.” See id. at pp. 48, 11-15.
20.

Also on November 14, 2013, Plaintiff filed a Rule 56(d) Motion, requesting that

the Court defer consideration of Defendants’ Motion for Summary Judgment until (1) ruling on
Plaintiff’s Motion to Compel, and (2) allowing time for Plaintiff to obtain the information sought
therein. See 56(d) Mot. (Docket No. 22); see also Mem. in Supp. of 56(d) Mot., pp. 3-4 (Docket

3

Defendants also argue that (1) there is no genuine issue of material fact regarding
Plaintiff’s failure to provide proper notice claim (Count II), and (2) there is no genuine issue of
material fact to support Plaintiff’s abuse of process claim (Count III). See Mem. in Supp. of
Defs.’ MSJ, pp. 10-13 (Docket No. 20). However, the clear thrust of Defendants’ arguments
against liability relate to the (non)applicability of the FDCPA to begin with.
MEMORANDUM DECISION AND ORDER - 8

No. 22, Att. 2) (“Bartlett needs information regarding how many debt collection cases Blaser has
filed because the volume of debt collection cases someone has filed on a regular basis is a
critical factor courts consider in determining if someone is a debt collector”; “the interrogatories
relate to whether Blaser’s filing a debt collection lawsuit against Bartless was intentional or a
mistake, and whether Blaser had procedures reasonably adapted to avoid any such error”; and
“the interrogatories relate to Bartlett’s abuse of process claim . . . . this evidence will substantiate
Bartlett’s claim that Blaser’s filing of a complaint in the wrong county was no accident and that
he has a repeated practice of filing all of his debt collection cases in Bingham County for his
own convenience and to gain an advantage in litigation.”).
21.

On November 18, 2013, Plaintiff responded to Defendants’ Motion for Summary

Judgment. See Resp. to Defs.’ MSJ (Docket No. 23).
22.

On December 5, 2013, Defendants submitted a reply in support of their Motion

for Summary Judgment. See Reply in Supp. of Defs.’ MSJ (Docket No. 25).
23.

Also on December 5, 2013, Defendants sought to amend their Motion for

Summary Judgment to argue that Plaintiff’s abuse of process claim is a compulsory counterclaim
in the underlying state court action that was never raised and is therefore barred. See
Defs.’ Am. MSJ, p. 2 (Docket No. 26) (“Defendants submit that while this argument was not
raised in their initial summary judgment brief, it is responsive to the arguments raised by the
Plaintiff in his response. Moreover, Defendants do not have any objection to the Court allowing
the Plaintiff to provide a response to the argument . . . .”).
24.

On December 9, 2013, Defendants responded to Plaintiff’s Rule 56(d) Motion,

arguing that “the information sought to respond to Defendants’ Motion for Summary Judgment

MEMORANDUM DECISION AND ORDER - 9

is not relevant to the legal issues on which the MSJ is based” and “[b]ecause this information is
neither relevant nor reasonably calculated to lead to admissible evidence, and its disclosure is
unable to correct the defects in Plaintiff’s complaint, it is both inappropriate for discovery and
unnecessary to respond to the MSJ.” See Resp. to 56(d) Mot., p. 1 (Docket No. 27).
25.

Also on December 9, 2013, Defendants responded to Plaintiff’s Motion to

Compel, arguing that the sought-after information is not relevant to the crucial issue in this case
(whether a tort subrogation claim is a “debt” within the meaning of the FDCPA) and, also, that
its compelled production would be unduly burdensome. See Resp. to Mot. to Compel (Docket
No. 29).
26.

On December 16, 2013, the Court granted Plaintiff’s Rule 56(d) Motion, finding

in relevant part:
It is apparent that the parties disagree on the actual relevance of those discovery
requests to the arguments raised in Defendants’ pending Motion for Summary
Judgment. For this reason, Plaintiff’s Motion to Compel should be resolved before
turning to the merits of Defendants’ Motion for Summary Judgment. While
potentially capable of resolution on the parties’ submissions to date, a telephonic
hearing on Plaintiff’s Motion to Compel will take place on January 7, 2014 at 10:00
a.m. to allow the parties to present their respective positions on the issue, while
simultaneously addressing any of the undersigned’s questions/concerns. The Court
will likely rule from the bench and, if necessary, set additional deadlines moving
forward and/or a hearing date on Defendants’ Motion for Summary Judgment – until
then, consideration of Defendants’ Motion for Summary Judgment is on hold.
See 12/16/13 MDO, p. 7 (Docket No. 33) (Emphasis in original).4
27.

On December 26, 2013, Plaintiff submitted a reply in support of his Motion to

Compel. See Reply in Supp. of Mot. to Compel (Docket No. 34).

4

The Court also decided at the January 7, 2014 telephonic hearing that Defendants’
Amended Motion for Summary Judgment would also be considered and resolved (at least insofar
as adding the argument referenced therein to the balance of arguments raised in Defendant’s
original Motion for Summary Judgment). See 12/16/13 MDO, p. 7, n.4 (Docket No. 33).
MEMORANDUM DECISION AND ORDER - 10

28.

On December 30, 2013, Plaintiff responded to Defendants’ Amended Motion for

Summary Judgment. See Resp. to Defs.’ Am. MSJ (Docket No. 35).
29.

On January 7, 2014, the Court held a hearing on Plaintiff’s Motion to Compel; the

Court’s Minute Entry Order read:
Court shall allow [Defendants] to file a 5-page reply in support of Amended Motion
for Summary Judgment . . . no later than 1/17/14.
Court advised that discovery is stayed, pending resolution of Defendants’ Motion for
Summary Judgment and Amended Motion for Summary Judgment. Nonetheless, the
Court described its present view on the discovery issues raised within Plaintiff’s
Motion to Compel for the benefit of counsel in the event Defendants’ dispositive
motions do not prevail; if necessary, the Court will issue a separate order regarding
Plaintiff’s Motion to Compel following the order on Defendants’ dispositive
motions.
1/7/14 MEO (Docket No. 36). The Court additionally noticed Defendants’ Motion for Summary
Judgment and Amended Motion for Summary Judgment for hearing on January 30, 2014. See
id.
30.

On January 10, 2014, Plaintiff filed his Motion for Summary Judgment, arguing

that “there is no genuine issue of material fact that (1) Blaser violated 15 U.S.C. § 1692i(a) of
the FDCPA by bringing an action against Bartlett in the improper venue of Bingham County;
and (2) Blaser committed an abuse of process by willfully filing a lawsuit against Bartlett in the
wrong county for an ulterior and improper purpose.” Pl.’s MSJ, pp. 1-2 (Docket No. 38).
31.

Also on January 10, 2014, Plaintiff his Motion to Amend to Seek Punitive

Damages relating to Defendants’ alleged abuse of process “arising out of Defendants’ . . . wilful
filing of a lawsuit against Bartlett in the wrong county for an ulterior and improper purpose.”
Mem. in Supp. of Mot. to Am., p. 2 (Docket No. 39, Att. 1).

MEMORANDUM DECISION AND ORDER - 11

32.

On January 16, Defendants submitted a reply in support of their Amended Motion

for Summary Judgment. See Reply in Supp. of Defs.’ Am. MSJ (Docket No. 40).
33.

On January 30, 2014, the Court held a hearing on Defendants’ Motion for

Summary Judgment and Amended Motion for Summary Judgment. See 1/30/14 MEO (Docket
No. 42).
34.

On February 3, 2014, Defendants responded to Plaintiff’s Motion for Summary

Judgment. See Resp. to Pl.’s MSJ (Docket No. 43).
35.

Also on February 3, 2014, Defendants responded to Plaintiff’s Motion to Amend

to Seek Punitive Damages. See Resp. to Mot. to Am. (Docket No. 44).
36.

On February 14, 2014, Plaintiff submitted a reply in support of his Motion to

Amend to Seek Punitive Damages. See Reply in Supp. of Mot. to Am. (Docket No. 45).
37.

Also on February 14, 2014, Plaintiff submitted a reply in support of his Motion

for Summary Judgment. See Reply in Supp. of Pl.’s MSJ (Docket No. 46).
38.

On March 7, 2014, Defendants objected to Plaintiff’s replies in support of the

latter’s Motion to Amend to Seek Punitive Damages and Motion for Summary Judgment,
arguing that “Plaintiff raises an argument and/or claim that Defendants have violated the
[FDCPA] by suing the wrong party for a non-existent debt” and that “[t]his claim was not
pleaded in the Complaint, is improperly raised for the first time in a reply brief, and is barred by
the statute of limitations.” See Obj., pp. 1-2 (Docket No. 47).
39.

On March 10, 2014, Plaintiff opposed Defendants’ objection to Plaintiff’s replies

in support of his Motion to Amend to Seek Punitive Damages and Motion for Summary

MEMORANDUM DECISION AND ORDER - 12

Judgment, arguing that (1) his reply briefing merely responded to Defendants’ arguments
opposing Plaintiff’s Motion for Summary Judgment (relating to the applicability of a cited case),
and (2) he did not rely on any new facts in responding to Defendants’ “mistaken identity”
argument. See Opp. to Obj. (Docket No. 48).
40.

Also on March 10, 2014, Plaintiff alternatively sought to amend his Motion for

Summary Judgment to address the arguments raised within Defendants’ objection to Plaintiff’s
replies in support of the latter’s Motion to Amend to Seek Punitive Damages and Motion for
Summary Judgment. See Pl.’s Am. MSJ, p. 2 (Docket No. 49) (“Plaintiff submits that while this
argument was not raised in their initial summary judgment brief, it is responsive to the
arguments raised by Defendants in their response. Moreover, Plaintiff does not have any
objection to the Court allowing the Defendants to provide a response to the mistaken identity
argument . . . .”); compare with Defs.’ Am. MSJ, p. 2 (Docket No. 26) (offering identical
argument/rationale for amendment).
41.

On March 27, 2014, Defendants submitted a reply in support of their objection to

Plaintiff’s replies in support of the latter’s Motion to Amend to Seek Punitive Damages and
Motion for Summary Judgment, attempting to re-focus attention upon the applicability of the
FDCPA to Plaintiff’s claims. See Reply in Supp. of Obj., p. 1 (Docket No. 50) (“[T]his case
involves an obligation allegedly owed by a business. The [FDCPA] does not apply to business
obligations and therefore not only does Plaintiff’s claim fail, but this Court lacks subject matter
jurisdiction over the entire case.”).
//
//

MEMORANDUM DECISION AND ORDER - 13

II. DISCUSSION AND HOLDINGS
A.

Standard of Law5
Summary judgment is appropriate where the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine dispute as to any material fact and that the moving party is entitled to a judgment as a
matter of law. See Fed. R. Civ. P. 56; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). One of the principal purposes of the summary judgment “is to isolate and dispose of
factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is
“not a disfavored procedural shortcut,” but is instead the “principal tool [ ] by which factually
insufficient claims or defenses [can] be isolated and prevented from going to trial with the
attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson, 477 U.S. at 247-48.
The evidence, including all reasonable inferences which may be drawn therefrom, must
be viewed in a light most favorable to the non-moving party and the Court must not make
credibility findings. See id. At 255. Direct testimony of the non-movant must be believed,
however implausible. See Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the
other hand, the Court is not required to adopt unreasonable inferences from circumstantial
evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

5

Though several different motions are currently before the Court, the parties’ underlying
motions for summary judgment are the lynchpin of the pending disputes. Therefore, unless
otherwise discussed elsewhere, the applicable standard of law for the purposes of this
Memorandum Decision and Order relates to that of the summary judgments.
MEMORANDUM DECISION AND ORDER - 14

The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry
this burden, the moving party need not introduce any affirmative evidence (such as affidavits or
deposition excerpts) but may simply point out the absence of evidence to support the nonmoving
party’s case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a
jury verdict in his favor. See id. The non-moving party must go beyond the pleadings and show
“by [his] affidavits, or by the depositions, answers to interrogatories, or admissions on file” that
a genuine issue of material fact exists. See Celotex, 477 U.S. at 324.
As a general rule, the Court is “not required to comb through the record to find some
reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist.,
237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d
1409, 1418 (9th Cir. 1988)). Instead, the “party opposing summary judgment must direct [the
Court’s] attention to specific triable facts.” Southern California Gas Co. v. City of Santa Ana,
336 F.3d 885, 889 (9th Cir. 2003). An exception to this rule exists when cross-motions for
summary judgment are filed. In that case, the Court must independently search the record for
issues of fact. See Fair Housing Council of Riverside Co., Inc. v. Riverside Two, 249 F.3d 1132,
1136 (9th Cir. 2001).
B.

The State Court Action Represents a Tort Subrogation Claim and is Not a “Debt”
Under the FDCPA
This case has twisted and turned along the road leading to this point, but it is now firmly

“in park,” awaiting decision upon a discrete issue that, in turn, will steer the resolution of the

MEMORANDUM DECISION AND ORDER - 15

pending motions before this Court. That is, does the state court action involve a debt implicating
the protections of the FDCPA? If so, Plaintiffs’ claims before this Court proceed for the time
being; if not, they are dismissed as matter of law.
The FDCPA was enacted to protect consumers from abusive, deceptive, and unfair debt
collection practices. See 15 U.S.C. § 1692. Aggrieved parties may seek to recover damages,
attorneys’ fees, and costs. See id. at § 1692k(a). However, the FDCPA does not apply to all
collection procedures; instead, the FDCPA regulates the collection of a specific type of debt
defined in the statute. See Turner v. Cook, 362 F.3d 1219, 1226-27 (9th Cir. 2004) (“Because not
all obligations to pay are considered debts under the FDCPA, a threshold issue in a suit brought
under the Act is whether or not the dispute involves a ‘debt’ within the meaning of the statute.”).
The FDCPA defines a “debt” as “any obligation or alleged obligation of a consumer to
pay money arising out of a transaction in which the money, property, insurance, or services
which are the subject of the transaction are primarily for personal, family, or household purposes
. . . .” 15 U.S.C. § 1692a(5). The FDCPA does not define “transaction,” “but the consensus
judicial interpretation is reflected in the Seventh Circuit’s ruling that the statute is limited in its
reach ‘to those obligations to pay arising from consensual transactions, where parties negotiate
or contract for consumer-related goods or services.’” Turner, 362 F.3d at 1227 (quoting Bass v.
Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir. 1997)). Here,
Plaintiff’s potential obligation to pay damages resulting from the state court action does not arise
out of a such a “consensual transaction” involving “consumer-related goods or services;” rather,
it arises out of Plaintiff’s alleged negligence.

MEMORANDUM DECISION AND ORDER - 16

For example, in Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367 (11th Cir. 1998),
Hawthorne was involved in a car accident allegedly due to her own negligence. The other party
to the accident incurred damages and obtained payment from its own insurer. That insurer then
assigned its right of subrogation from Hawthorne to Mac Adjustment, Inc. (“Mac”), which then
sought reimbursement from Hawthorne. Hawthorne then filed suit against Mac, alleging that its
collection attempts directed at Hawthorne violated the FDCPA. The Eleventh Circuit ruled that
the debt sought was not subject to the FDCPA, stating that “when we speak of ‘transactions,’ we
refer to consensual or contractual arrangements, not damage obligations thrust upon one as a
result of no more than her own negligence.” Id. at 1371. Summarizing, the Eleventh Circuit
said:
While we do not hold that every consensual or business dealing constitutes a
“transaction” triggering application of the FDCPA . . . at a minimum, a “transaction”
under the FDCPA must involve some kind of business dealing or other consensual
obligation. Because [the plaintiff’s] alleged obligation to pay [the subrogated third
party] for damages arising out of an accident does not arise out of any consensual or
business dealing, plainly it does not constitute a “transaction” under the FDCPA.
Id.
In Turner v. Cook, 362 F.3d 1219 (9th Cir. 2004), the Ninth Circuit addressed for the first
time the question of whether a tort judgment resulting from business-related conduct qualifies as
a debt under the FDCPA. There, certain of the defendants had previously obtained a $1,000,000
tort judgment (on grounds of business interference) against one of the plaintiffs. Those
defendants then hired an attorney and his law firm (who became the other defendants) to assist in
collecting the judgment. All of them were eventually sued over the collection efforts, based
upon alleged FDCPA violations. The district court ruled that the tort judgment was not a “debt”
under the FDCPA, and dismissed the case. Affirming on appeal, the Ninth Circuit – fully
MEMORANDUM DECISION AND ORDER - 17

embracing the “well-reasoned Eleventh Circuit opinion” in Hawthorne – held that the plaintiff’s
judgment debt was the result of a tort (and not a consumer transaction), and therefore was not a
“debt” within the meaning of the FDCPA. See id. at 1227-28.
The issues considered in Hawthorne and Turner are analogous here, particularly in
deciding whether the state court collection action itself implicates the FDCPA’s protections.
Plaintiff might ultimately have to pay a subrogated claim for tort damages stemming from the
state court action. However, the holdings of Hawthorne and Turner are an equal fit to these facts
and – even if indirectly related to a contracted transaction for plumbing services between
Plaintiff and the Triggs – the debt at issue is a separate obligation as determined under tort law,
which might then be memorialized in an anticipated judgment should Hartford, the subrogated
insurer, prevail. Said another way, such an obligation is not a function of any contract Plaintiff
had with the Triggs, but, rather arises independently from Plaintiff’s alleged negligence. But for
Plaintiff’s negligence in performing such services, there would be no duty upon Plaintiff to make
any payment to the Triggs or any of their subrogees.6
Accordingly, in such a setting, tortious conduct (i.e., negligence) does not constitute a
consensual or consumer transaction. To hold otherwise would mean that the Triggs (had they

6

These details also highlight the fact that Plaintiff is not a typical consumer under the
FDCPA. While the FDCPA uses the terms “consumer” and “any person” in different sections of
the Act, Plaintiff claims to be a consumer for the purposes of bringing this case into the
FDCPA’s orbit. See Compl., ¶¶ 10 & 16 (Docket No. 1) (referenced 15 U.S.C. § 1692i(a) and 15
U.S.C. § 1692g(a) both apply to “consumers.”). The FDCPA defines “consumer” as “any
natural person obligated or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3). Plaintiff
provided plumbing services in exchange for payment – in doing so, he did not incur any debt for
his personal, family, or household use (terms from the FDCPA’s definition of “debt” (see
supra)). Hence, any duty to make payment here is a function of Plaintiff’s (alleged) negligence,
not any actual transaction giving rise to a separate debt. Cf. Exs. N & P to Blaser Decl., ¶ 21
(Docket No. 20, Att. 2) (Plaintiff’s answers to Defendants’ state court complaints included tort
defenses). Therefore, Plaintiff is not a consumer as that term is used in the FDCPA.
MEMORANDUM DECISION AND ORDER - 18

brought the state court action themselves, claiming Plaintiff’s negligence resulted in damage to
their property, and assuming they were debt collectors under the Act) would be subject to the
FDCPA. Plaintiff offers no legal authority endorsing such a proposition and the undersigned
finds no persuasive reason to so hold here.7 Therefore, the Court finds that this action does not
involve a “debt” as defined by the FDCPA and, as a result, Plaintiff’s FDCPA-related claims
(Counts I and II) fail as a matter of law.8
C.

The Underlying State Court Complaint’s Allegations (Since Amended) Do Not Give
Rise to an FDCPA Claim
There is no dispute that Defendants’ underlying state court action originally resembled a

debt collection proceeding. See Ex. I to Blaser Decl. ¶ 13 (Docket No. 20, Att. 2) (“That
Defendant [(in the state court action, but Plaintiff in this action)] owes Plaintiff [(in the state
court action, but Defendants here)] the sum of $10,344.69, together with interest at the rate of
12% and carrying charges as allowed by law from July 5th, 2012, for goods and/or monies loaned
to Defendant [(in the state court action, but Plaintiff in this action)] by Plaintiff [(in the state

7

This conclusion is also supported by the Federal Trade Commission (“FTC”)
interpretation. The FTC is charged with enforcement and administration of the FDCPA. The
FTC commentary makes clear that the term “debt” “does not include: . . . tort claims, because
they are not debts incurred from a ‘trans[action] (involving purchase of) property . . . or services
. . . for personal, family, or household purposes.’” 53 Fed. Reg. 50,097-02 at 50,102 (1998); see
also Hawthorne, 140 F.3d at 1372, n.2 (noting that “[a]lthough the FTC’s construction of the
FDCPA is not binding on the courts, because the FTC is entrusted with administering the
FDCPA, its interpretation should be accorded considerable weight.” (citing Chevron, U.S.A, Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)).
8

Plaintiff alternatively argues that the FDCPA covers alleged debts and that, because
Defendants’ state court action (notwithstanding its later amendment) sought to collect a debt, the
FDCPA applies. See Resp. to Defs.’ MSJ, p. 9 (Docket No. 23) (“Regardless of whether Blaser
was mistaken about the facts or whether the debt was valid, Blaser must be held to the
allegations of the [state court action].”). This argument is misplaced for the reasons discussed
elsewhere in this Memorandum Decision and Order.
MEMORANDUM DECISION AND ORDER - 19

court action, but Defendants here)] . . . .”); see also Defs.’ SOF No. 16 (Docket No. 20, Att. 1)
(acknowledging state court action “appears like a debt collection . . . .”).
From this, Plaintiff argues that the FDCPA automatically applies, regardless of what
Defendants may have intended to allege or, even, what they should have alleged (legally
speaking). See Resp. to Defs.’ MSJ, pp. 7-9 (Docket No. 23); Brief in Supp. of Pl.’s MSJ, pp.
12-15 (Docket No. 38, Att. 1). In other words, Plaintiff contends that the allegations of the state
court action necessarily trigger the FDCPA.
There is a loose logical sense to such an argument, but it is not ultimately persuasive
here. To begin, in support of his argument that the FDCPA applies to Defendants’ conduct here
(as a function of the state court action’s original allegations), Plaintiff cites to several cases
holding that the FDCPA speaks not only to actually-incurred debts, but also to debts alleged to
have occurred. See, e.g., Resp. to Defs.’ MSJ, p. 7 (Docket No. 23) (“However, Blaser’s
argument is contrary to well established law that ‘[t]hroughout the FDCPA[,] coverage is based
upon actual or merely alleged debt.’”) (quoting Bridge v. Ocwen Federal Bank, FSB, 681 F.3d
355, 361 (6th Cir. 2012) (Emphasis added by Plaintiff)); id. (“The Act affords standing to any
‘aggrieved consumer to proceed under the Act so long as the collector was engaged in an
attempt to collect an alleged debt.’” (quoting Fedotov v. Peter T. Roach and Associates, P.C.,
354 F. Supp. 2d 471, 477 (S.D.N.Y. 2005) (Emphasis added by Plaintiff)); id. at p. 8 (“In
interpreting what constitutes a ‘debt’ under the Act, the Ninth Circuit has stated that ‘a debtor
has standing to complain of violations of the Act, regardless of whether a valid debt exists.”)
(quoting Baker v. G.C. Services Corp., 677 F.2d 775, 777 (9th Cir. 1982) (Emphasis added by
Plaintiff)); see also Brief in Supp. of Pl.’s MSJ, p. 12 (Docket No. 38, Att. 1) (same). However,

MEMORANDUM DECISION AND ORDER - 20

such an argument does not altogether address the issue here. These cases suggest only that
actions involving allegations of a debt already recognized as such under the FDCPA (whether
actually incurred by a defendant or not) are nonetheless covered by the FDCPA. They say
nothing about the situation at issue here: i.e., whether a “debt” not covered by the FDCPA (as
this Court has already determined (see supra)) can still invoke the Act’s protections, owing to
misplaced/mistaken allegations concerning that same debt/obligation in an underlying
proceeding.
For example, Plaintiff especially relies on Heathman v. Portfolio Recovery Associates,
LLC, 2013 WL 755674 (S.D. Cal. 2013). See Brief in Supp. of Pl.’s MSJ, pp. 12-15 (Docket No.
38, Att. 1). There, the defendant, Portfolio Recovery Associates, LLC (“PRA”), filed an
underlying complaint seeking to recover a specified amount from the plaintiff, Janet Heathman
(“Heathman”). PRA ultimately voluntarily dismissed the state court action, after the parties
agreed that Heathman had been sued by mistake and that no debt, credit, or any other
relationship ever existed between Heathman and PRA. Heathman then brought an FDCPA
lawsuit against PRA, premised on the alleged obligation in PRA’s state court complaint against
the admittedly wrong party. The federal district court granted Heathman’s motion for summary
judgment, reasoning in part:
PRA concedes this alleged debt never existed, yet argues that because it should have
sued [a third party], the nature of [the third party’s] purported debt somehow controls
this case. But this case turns on the debt in fact alleged, not the debt that should have
been alleged. PRA’s intent is entirely irrelevant to whether the alleged, but in fact
nonexistent, Heathman debt qualifies as a “debt” under the FDCPA. PRA’s post-hoc
characterization of which debt it meant to target is entirely beside the point. . . . .
Regardless of why PRA erroneously sued or who PRA should have sued, this case
solely concerns the debt in fact alleged in PRA’s state court complaint – that is the
nonexistent debt allegedly owed by Heathman to PRA.
Heathman, 2013 WL 755674 at *5 (internal citations omitted). Plaintiff understandably relies
upon this same rationale to both oppose Defendants’ Motion for Summary Judgment and support
MEMORANDUM DECISION AND ORDER - 21

his own Motion for Summary Judgment. See, e.g., Brief in Supp. of Pl.’s MSJ, pp. 13-15
(Docket No. 38, Att. 1) (“According to Heathman, [Plaintiff’s] FDCPA claim can be
‘exclusively premised’ on the ‘alleged obligation’ in [Defendants’] complaint which stated that
[Plaintiff] was individually liable for a debt ‘for goods and/or services or monies loaned,’ even if
the debt, as alleged, is nonexistent.”).
Similarities between this case and Heathman unquestionably exist, which Plaintiff
highlights. However, neither those similarities nor the holding in Heathman directly addresses
the lynchpin issue involved in this dispute. In Heathman, the alleged debt stemmed from a
consumer credit transaction (expressly covered under the FDCPA), a fact that stood alone from
whether Heathman actually owed that FDCPA-recognized debt (which she indisputably did not).
This was the point of the holding of Heathman – i.e., that regardless of whether the covered debt
was actually owed, so long as a covered debt was alleged to be due and owing, the FDCPA is
available to protect the consumer/alleged debtor. In short, the facts in Heathman presume a
covered debt.
That presumption, however, does not attach to this record. As discussed above, Turner
states in no uncertain terms that “not all obligations to pay are considered debts under the
FDCPA.” Turner, 362 F.3d at 1226-27. And, here, a dissection of Defendants’ state court
action reveals that the alleged debt is not an FDCPA debt. See supra. A nuanced point to be
sure, but one that operates to distinguish Heathman (and similar cases in this respect), while still
taking into account Turner’s Ninth Circuit precedent.
Even though Heathman in the abstract could be argued to possibly support Plaintiff’s
position, the fact remains that the “debt” in question here is not one subject to the FDCPA.

MEMORANDUM DECISION AND ORDER - 22

Therefore, Heathman does not neatly apply and, absent legal authority allowing for the
FDCPA’s application to legally non-covered debts solely by reason of contrary allegations
(Plaintiff offers none on this refined point), Turner compels this Court to decide as a threshold
matter whether, in fact, the debt alleged is one recognized by the FDCPA. It is not. As a result,
the underlying state court action’s allegations do not give rise to an FDCPA claim here and, thus,
Plaintiff’s FDCPA-related claims (Counts I and II) fail as a matter of law.9
D.

This Court Will Not Exercise Supplemental Jurisdiction Over Plaintiff’s Abuse of
Process Claim
Under Idaho law, “[a]buse of process involves two elements: (1) a willful act in the use

of legal process not proper in the regular course of the proceeding that was (2) committed for an
ulterior, improper purpose.” Berkshire Investments, LLC v. Taylor, 278 P.3d 943, 954 (Idaho
2012); see also Brief in Supp. of Pl.’s MSJ, p. 17 (Docket No. 38, Att. 1). In Count III of his
Complaint, Plaintiff alleges that (1) “[Defendant] willfully filed a lawsuit against [Plaintiff] in
the wrong county for an ulterior and improper purpose,” (2) “[Defendant’s] willful act of filing a
lawsuit against [Plaintiff] in the wrong county constitutes using the process in an improper way,”
and (3) “[a]s a direct and proximate result, [Plaintiff] has suffered economic damages and

9

In reaching this conclusion, the undersigned has considered the potential situation of an
unscrupulous plaintiff/debt collector who, knowing the sought-after “debt” is not one recognized
by the FDCPA, nonetheless purposely styles its complaint under the FDCPA so as to bully an
unsuspecting defendant by seeking recovery of not only the alleged debt, but also the statutory
pre-judgment interest and accompanying attorneys’ fees that may be available as well – letting
things run their course if nobody’s the wiser and there are no objections, or amending their
complaint only if called out and taken to task to unwind and erase the “mistake.” This decision
should not be read as condoning such a practice, if it were intentionally undertaken. But,
regardless, an FDCPA claim is not automatically born as a consequence. There must be more to
it, namely, a recognized debt under the Act. Other types of claims might very well be framed by
the aggrieved debtor, but what such claims might be is not the subject of this Memorandum
Decision and Order (see infra) – only that, under the facts at issue here, an FDCPA claim is not
one of them.
MEMORANDUM DECISION AND ORDER - 23

emotional distress.” Compl., ¶¶ 19-21 (Docket No. 1). To the extent Plaintiff’s abuse of process
claim is part and parcel with his FDCPA-related claims, it must fail, given the absence of such an
anchoring claim (see supra). Recognizing this possibility, Plaintiff requests that this Court
exercise supplemental jurisdiction over his abuse of process claim. See Reply in Supp. of Pl.’s
MSJ, pp. 9-10 (Docket No. 46).
District courts may choose to retain or decline supplemental jurisdiction over state law
claims after the federal claims have been dismissed. See Satey v. JPMorgan Chase & Co., 521
F.3d 1087, 1091 (9th Cir. 2008). In exercising such discretion, the court considers whether
retaining jurisdiction will best accommodate “the objectives of economy, convenience and
fairness to the parties, and comity.” Trustees of Constr. Indus. & Laborers Health & Welfare
Trust v. Desert Valley Landscape & Maintenance, Inc., 333 F.3d 923, 925 (9th Cir. 2003). The
fact that the federal claims giving rise to federal jurisdiction no longer remain in a case, however,
weighs in favor of declining supplemental jurisdiction:
[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine – judicial
economy, convenience, fairness, and comity – with point toward declining to
exercise jurisdiction over the remaining state-law claims.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). “Needless decisions of state law
should be avoided both as a matter of comity and to promote justice between the parties by
procuring for them a sure-footed reading of the applicable law.” United Mine Workers of
America v. Gibbs, 383 U.S. 715, 726 (1966).
As one would expect, the Ninth Circuit has repeatedly upheld decisions to decline
supplemental jurisdiction over remaining state claims after summary judgment dismissal of

MEMORANDUM DECISION AND ORDER - 24

federal claims. See, e.g., Oliver v. Ralphs Grocery Co., 654 F.3d 903, 911 (9th Cir. 2011)
(upholding district court’s decision to decline to exercise jurisdiction over state-law claims after
granting defendants summary judgment on plaintiff’s ADA accessibility claim). That is the
appropriate course of action here as well. Discovery was stayed pending resolution of the
parties’ cross motions for summary judgment. Whatever discovery has taken place can be used
in any state court proceeding. Additionally, to date, this Court has not evaluated the merits of
Plaintiff’s abuse of process claim – something Idaho state courts are in a better position to do
anyway. Finally, a key reason this case has remains before this Court for as long as it has is that
the Court has an extraordinarily full docket; the state courts may well be in a position to move to
the merits of this case more quickly. Accordingly, the Court finds the balance favors not
retaining Plaintiff’s abuse of process claim, but rather to return the matter to state court for
Plaintiff to pursue further if he so chooses.
III. ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that:
1.

Defendants’ Motion for Summary Judgment (Docket No. 19) is GRANTED;

2.

Plaintiff’s Motion to Compel (Docket No. 21) is DENIED as moot;

3.

Defendants’ Amended Motion for Summary Judgment (Docket No. 26) is
DENIED as moot;

4.

Plaintiff’s Motion for Summary Judgment (Docket No. 38) is DENIED;

5.

Plaintiff’s Motion to Amend to Seek Punitive Damages (Docket No. 39) is
DENIED as moot; and

MEMORANDUM DECISION AND ORDER - 25

6.

Plaintiff’s Amended Motion for Summary Judgment (Docket No. 49) is DENIED
as moot.
DATED: June 19, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 26