Edmondson v. Brennan & Clark LLC et al

Filing 38

OPINION AND ORDER The Court DENIES as moot Defendants Motion to Strike Portion of the Affidavit of Marlena Edmonson DE 36 , and STRIKES Plaintiff's Objections and Memorandum of Law in Opposition to Defendants Motion for Summary Judgment DE [34 ], Defendants' Reply in Support of Summary Judgment DE 35 , and Plaintiffs Opposition to Defendants' Motion to Strike DE 37 .The Court GRANTS Plaintiff's Second Motion for Extension of Time to Respond toDefendants Motion for Summary Judgment DE 31 , and STAYS briefing on the Motion for Summary Judgment until a date to be set at the Rule 16 preliminary pretrial conference, which will be scheduled by separate order. Signed by Magistrate Judge John E Martin on 11/6/18. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
MARLENA EDMONDSON,
Plaintiff,

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v.
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BRENNAN & CLARK, LTD., LLC, et al. )
Defendants.
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CAUSE NO.: 4:18-CV-11

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Second Motion for Extension of Time to
Respond to Defendants’ Motion for Summary Judgment [DE 31], filed on June 19, 2018. Plaintiff
seeks an extension of time to respond to Defendants’ motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56(d). Defendants filed a response on June 20, 2018, and Plaintiff
filed a reply on June 26, 2018.
Plaintiff Marlena Edmonson, a debtor, has sued Defendants, including a debt collection
agency, for violating the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. To sustain
claims under the FDCPA, Edmonson must show that she owed a “debt” as defined by the FDCPA.
Essentially, it must be a “consumer” debt: the debt must arise from a transaction made “primarily
for personal, family, or household purposes.” § 1692(a)(5). Before a Rule 16(b) scheduling
conference was held, Defendants moved for summary judgment, claiming (among other arguments)
that Edmonson’s debt was a “commercial” debt, related to her employment as a social worker, rather
than a consumer debt covered by the FDCPA.
Edmonson filed this motion pursuant to Rule 56(d), arguing that she cannot present facts
essential to justify her opposition to Defendants’ motion for summary judgment. Edmonson attaches
a declaration by counsel Duran Keller, stating in part that Plaintiff “has not had an opportunity to

conduct any discovery relating to any of the issues raised in the affidavits” attached to the motion.
If a party opposing summary judgment “shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the court may: (1) defer considering the
motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue
any other appropriate order.” Fed. R. Civ. P. 56(d). A Rule 56(d) motion must set forth specific
evidence that it might obtain from further discovery that would create a genuine issue as to a specific
material fact. Davis v. G.N. Mortg. Corp., 396 F.3d 869, 885 (7th Cir. 2005).
Defendants state that the affidavits “simply serve to authenticate” the insurance policies that
gave rise to the disputed debt, and set forth Edmonson’s own statements regarding the policies.
Defendants argue that because that information is within her knowledge, Plaintiff’s requested
discovery is unnecessary. However, Defendants’ affidavits do more than simply authenticate forms.
For example, Defendants attached the affidavit of Thomas Blevins, a non-party insurance agent who
sold insurance to Edmonson. In addition to authenticating Edmonson’s applications for insurance
policies, Blevins states: “As reported to Blevins by Edmonson, Edmonson obtained the policies to
secure coverage related to her independent contractor social work.” Blevins states that he
“personally oversaw completion of the Applications and at no time did Edmonson request personal
coverage through the policies. . . . All Policies were solely directed toward her independent contract
social work.” Defendants incorporated those statements in their motion for summary judgment.
Edmonson argues that she never told Blevins the debt was commercial, and that
notwithstanding the content of the documents Blevins authenticates, her debt was made “primarily
for personal, family, or household purposes.” The question of whether a debt is covered by the
FDCPA depends on its purpose at the time the debt was incurred. See Miller v. McCalla, Raymer,
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Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872, 874 (7th Cir. 2000) (finding that FDCPA
applied based on “the character of the debt when it arose rather than when it is to be collected”). The
content and context of Edmonson’s alleged “report” to Blevins during the application process
concerning the purpose of the policy, and the specific basis for Blevins’s conclusion that the policies
were “solely directed” to independent contract social work, would inform whether there is a genuine
issue of material fact as to the purpose of the debt. Those details are “essential to [Edmonson’s]
opposition” of summary judgment. Fed. R. Civ. P. 56(d).
For the reasons discussed above, and because summary judgment will not be considered until
additional discovery occurs, the Court DENIES as moot Defendants’ Motion to Strike Portion of
the Affidavit of Marlena Edmonson [DE 36], and STRIKES Plaintiff’s Objections and
Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment [DE 34],
Defendants’ Reply in Support of Summary Judgment [DE 35], and Plaintiff’s Opposition to
Defendants’ Motion to Strike [DE 37].
The Court GRANTS Plaintiff’s Second Motion for Extension of Time to Respond to
Defendants’ Motion for Summary Judgment [DE 31], and STAYS briefing on the Motion for
Summary Judgment until a date to be set at the Rule 16 preliminary pretrial conference, which will
be scheduled by separate order.
SO ORDERED this 6th day of November, 2018.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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