JOY v. RUSHMORE LOAN MANAGEMENT SERVICES

Filing 39

ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT denying 25 Motion for Summary Judgment By JUDGE NANCY TORRESEN. (ccs)

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROXANNE JOY,
Plaintiff,
v.
RUSHMORE LOAN MANAGEMENT
SERVICES,
Defendant.

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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Before me is the Plaintiff’s motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56. (ECF No. 25). The Plaintiff asserts claims under the
federal Fair Debt Collection Practices Act (“FDCPA”), Maine Fair Debt Collection
Practices Act (“MFDCPA”), and Maine Consumer Credit Code (“MCCC”). As the
party moving for summary judgment, the Plaintiff shoulders the burden of showing
that there is no genuine dispute as to any material fact and that she is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). The motion is DENIED because
she has failed to carry her burden.
In order to be held liable under the FDCPA,1 an entity must be a “debt
collector” as defined by the statute. See 15 U.S.C. § 1692a(6). In her motion for
summary judgment, the Plaintiff devotes one conclusory sentence to this issue. Pl.’s
Mot. for Summ. J. 4 (“It is undisputed that Rushmore is a ‘debt collector’ as defined

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Claims under the FDCPA and the MFDCPA are analyzed coextensively.

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by the FDCPA . . . .”). But the Defendant disputes that it is a debt collector.2 The
Defendant requested to strike and otherwise denied the Plaintiff’s statement of fact
asserting that Rushmore is a debt collector. Def.’s Resp. Statement of Facts ¶ 10
(“DRSF”) (ECF No. 31). The parties’ dispute over this issue centers on whether the
Defendant admitted in its Answer that it is a debt collector as defined by the FDCPA
and MFDCPA. The Plaintiff argues that I should apply Federal Rule of Civil
Procedure 8(b) strictly and deem the Defendant’s somewhat evasive response as an
admission. Resolving this dispute is unnecessary given the other deficiencies in the
Plaintiff’s motion for summary judgment that provide an independent basis for
denial.
Assuming arguendo that the Plaintiff has met her threshold burden of
demonstrating that the Defendant is a debt collector, she has still failed to establish
a FDCPA violation. In analyzing whether a communication runs afoul of the FDCPA,
the communication “is to be viewed from the perspective of the hypothetical
unsophisticated consumer.” Pollard v. Law Office of Mandy L. Spaulding, 766 F.3d
98, 103 (1st Cir. 2014). The Plaintiff’s motion for summary judgment refers to this
standard only once in a quotation taken from a case deciding whether a complaint
stated a plausible FDCPA claim. Pl.’s Mot. for Summ. J. 9 (quoting Kowalski v.
Seterus, Inc., No. 2:16-cv-160-JAW, 2017 WL 79949, at *16 (D. Me. Jan. 9, 2017)). The
Plaintiff does not cite a single case decided at the summary judgment stage that

I do not rule on the merits of the Plaintiff’s motion to amend the scheduling order and reopen
discovery at this time. Whether the Plaintiff should be permitted to reopen discovery to gather
evidence for trial will be considered once that motion has been fully briefed and comes under
advisement.
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involved communications similar to those at issue here, and she provides virtually no
analysis of how the communications at issue would be perceived by the hypothetical
unsophisticated consumer. Although some analysis was provided at oral argument,
it is incumbent upon the moving party to make its case in its briefing. Without the
benefit of a developed argument from the Plaintiff, I cannot evaluate the merits of
her FDCPA claim.
Similarly, in contending that she is entitled to summary judgment on her claim
that Rushmore violated the MCCC, the Plaintiff relies entirely on the same case,
Kowalski. Although I must consider all evidence in the light most favorable to the
non-movant, the Plaintiff asks me to draw inferences in her favor, and she provides
no analysis of why the MCCC was violated. Pl.’s Mot. for Summ. J. 11-12. This, too,
is insufficient to meet the Plaintiff’s burden.
CONCLUSION
For the reasons stated above, the Court DENIES the Plaintiff’s motion for
summary judgment.

SO ORDERED.
/s/ Nancy Torresen
United States Chief District Judge
Dated this 1st day of September, 2017.

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