Kaplan v. Timothy E. Baxter & Associates, P.C.
ORDER DENYING DEFENDANTS MOTION FOR SUMMARY JUDGMENT re: 50 Motion for Directed Verdict. Signed by District Judge Denise Page Hood. (Loury, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 11-14886
Honorable Denise Page Hood
LAW OFFICES OF TIMOTHY E.
BAXTER & ASSOCIATES, P.C. and
JP MORGAN CHASE [sic], a national
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter involves the Fair Debt Collection Practices Act. Now before the Court is
Defendant Law Offices of Timothy E. Baxter & Associates’ Motion for Judgment as a Matter of
Law or, in the alternative, Motion for Summary Judgment. The matter has been fully briefed and
is now appropriate for review. For the reasons stated in more detail below, the Court DENIES
Defendant’s alternative Motion for Summary Judgment.
The Court denies without prejudice
Defendant’s request for judgment as a matter of law; Defendant may re-raise it’s motion after
Plaintiff has presented her proofs.
This matter involves one phone conversation between Plaintiff and Defendant’s employee.
During the conversation, Defendant’s employee told Plaintiff that the creditor, who is not a party
to this action, would file a lawsuit against her on October 6, 2011. That lawsuit was not filed.
Plaintiff filed the present action on November 4, 2011. Defendants filed a motion to dismiss and/or
for summary judgment on January 17, 2012. On September 28, 2012, the Court granted in part and
denied in part Defendant’s motion to dismiss or, in the alternative, motion for summary judgment.
The Court found that there remained a question of fact as to whether the statement expressing an
intention to file a lawsuit on October 6th violated 15 U.S.C. § 1692e(5).
On March 20, 2013, Defendant conducted a deposition de bene esse of Plaintiff due to her
failing health. Based on the contents of the deposition, Defendant now moves for judgment as a
matter of law or, in the alternative, for summary judgment.
STANDARD OF REVIEW
Pursuant to Rule 50(a)(1), the district court may enter judgment as a matter of law upon
motion when “a party has been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for the party on [an]
issue.” A motion for judgment as a matter of law may be raised at anytime before the case is
submitted to the jury for deliberation. Fed. R. Civ. P. 50(a)(2). “Judgment as a matter of law is
appropriate when ‘viewing the evidence in the light most favorable to the non-moving party, there
is no genuine issue of material fact for the jury, and reasonable minds could come to but one
conclusion in favor of the moving party.’” Tisdale v. Fed. Express Corp., 415 F.3d 516, 527 (6th
Cir. 2005) (citing Noble v. Brinker Int'l, Inc., 391 F.3d 715, 720 (6th Cir. 2004)). Accordingly, the
Court will not “submit a matter to the jury ‘when viewed in the light of those inferences most
favorable to the nonmovant, there is either complete absence of proof on the issues or no
controverted issues of fact upon which reasonable persons could differ.’” Spengler v. Worthington
Cylinders, 615 F.3d 481, 488–89 (6th Cir. 2010) (quoting Monette v. AM-7-7 Baking Co., 929 F.2d
276, 280 (6th Cir. 1991)). In considering a motion for judgment as a matter of law, the Court cannot
weigh the evidence or assign credibility to a witness. Jackson v. Quanex Corp., 191 F.3d 647, 657
(6th Cir. 1999).
Rule 50 contemplates that a motion for judgment as a matter of law would be submitted after
a party has been fully heard on an issue during a jury trial. Fed. R. Civ. P. 50(a)(1). Although the
purpose of the rule is to provide notice to the court and the opposing party of deficiencies in the case
and secure an inexpensive, speedy, and just determination of the case, Kusens v. Pascal Co., 448
F.3d 349, 361 (6th Cir. 2006), “it is impossible [to determine] . . . whether . . . a reasonable jury
could find in favor of the nonmoving party if he is precluded from presenting the evidence he
considers relevant.” Jackson, 191 F.3d at 657 (quoting Francis v. Clark Equip. Co., 993 F.2d 545,
555 (6th Cir. 1993)). Simply put, a matter is fully heard once the party has rested his case. Pakenas
v. State Farm Ins. Co., 488 Fed. Appx. 43, 52 (6th Cir. 2012) (citing Echeverria v. Chevron USA
Inc., 391 F.3d 607, 611 (5th Cir. 2004)).
Defendant argues that judgment as a matter of law is appropriate at this juncture of the case
because Plaintiff intends to present her proofs through the de bene esse deposition. The language
of Rule 50 envisions that a motion for judgment as a matter of law is appropriately considered after
a jury trial has begun and a jury trial has not begun in this matter. Defendant’s motion for judgment
as a matter of law is premature. The Court will, however, allow Defendant to re-raise a Rule 50
motion after the conclusion of Plaintiff’s proofs. Until then, the Court will not consider a motion
for judgment as a matter of law. In the alternative, Defendant asks that the Court consider its motion
as a motion for summary judgment. The Court will, therefore, construe Defendant’s motion as a
motion for summary judgment.
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 50(a).
The movant bears the burden of proving that there are no genuine issues of material fact and that it
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
court must consider all evidence in the light most favorable to the nonmoving party. Sagan v.
United States, 342 F.3d 493, 497 (6th Cir. 2003). Summary judgment will “be granted against a
party, who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case.” Celotex, 477 U.S. at 391. A material fact is genuine, and the case is not appropriate
for summary judgment, if a reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, 477 U.S. 248 (1986).
The Court denies Defendant’s motion for summary judgment on two separate grounds. First,
Defendant has already filed a motion for summary judgment, [Docket No. 25, filed July 11, 2012],
and the Court rendered a ruling on that motion. [Docket No. 31, filed September 28, 2012] The
Court directs Defendant’s attention to Local Rule 7.1(c)(3), which provides that “[a] party must
obtain leave of court to file more than one motion for summary judgment.” E.D. L.R. 7.1(c)(3).
Defendant has not sought leave to file a second motion for summary judgment and the Court will
not grant such leave.
Even if the Court were to consider the merits, it finds that there is still a lingering question
of fact. Plaintiff brings her remaining claim under section 1692e of the Fair Debt Collection
Practices Act (FDCPA), which states in relevant part:
A debt collector may not use any false, deceptive, or misleading representation or
means in connection with the collection of any debt. . . . the following conduct is a
violation of this section: . . .
(5) The threat to take any action that cannot legally be taken or that is not
intended to be taken.
15 U.S.C. § 1692e. The FDCPA is a strict liability statute and, therefore, evidence of intent by the
debt collector is not required. Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1174–75
(9th Cir. 2006); see also Gamby v. Equifax Info. Servs. LLC, 462 Fed. Appx. 552, 556 (6th Cir.
2012) (citing Clark, 460 F.3d at 1176). Plaintiff need only prove that (1) Defendant made a threat
and that (2) the threat either could not be legally taken or was never intended to be taken. 15 U.S.C.
§ 1692e(5). Relevant here is whether Defendant had no intention of filing a lawsuit against Plaintiff
on October 6th.
The Court will assess whether a statement has violated the FDCPA through the lens of the
least sophisticated consumer. Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir. 2006).
This is an objective test. Id. The Court must consider “whether there is a reasonable likelihood that
an unsophisticated consumer who is willing to consider carefully the contents of a communication
might yet be misled by them.” Grden v. Leikin Ingber & Winters PC, 643 F.3d 169, 172 (6th Cir.
2011). This test is “lower than simply examining whether [a particular statement] would deceive
or mislead a reasonable debtor.” Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. Ohio
1999) (quoting Swanson v. Southern Or. Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir. 1988)).
The act of informing a debtor of the agency’s legal options does not rise to a threat under section
1692e. Shuler v. Ingram & Associates, 710 F.Supp.2d 1213, 1224 (N.D. Ala. 2010).
Citing Plaintiff’s de bene esse deposition testimony, Defendant argues that it is entitled to
a favorable judgment because Plaintiff admits that (1) Defendant’s statements were not false,
deceptive, or misleading and (2) that she did not believe that Defendant would file a lawsuit on
October 6th. Plaintiff counters that Defendant has taken her testimony out of context.
In the section in question, Plaintiff testifies that she believed that Defendant would file a
lawsuit against her “soon” or “not necessarily on the sixth.” Upon further questioning, she clarified
her statement and testified that she meant that a suit would be filed around October 6th. [Docket No.
50, Ex. 4, pg 32–33] She further testified that she did not believe that anything that Defendant’s
employee said was misleading. Id. It appears that Plaintiff did believe that Defendant was going
to file a lawsuit soon, on a date certain, and that Defendant was not trying to mislead her. This
testimony does not appear completely inconsistent with Plaintiff’s allegations.
The relevant question is whether Defendant actually intended to file suit against Plaintiff on
a date certain and whether Plaintiff has produced evidence of this element. Plaintiff argues that the
fact that Defendant did not file suit is evidence that Defendant never intended to file suit. Defendant
responds that the mere fact that a lawsuit was not filed is not indicative of no intention to file a
lawsuit. Defendant points to the Affidavit of Susan Clay. Ms. Clay averred that Defendant was
waiting for a document to complete its file and that it believed that it would have the document by
October 6th in order to file a lawsuit. Ms. Clay further stated that it was reasonable for Defendant’s
agent to believe that a lawsuit would commence by October 6th, given the nature of the file.
Plaintiff filed this action in November 2011 and Defendant then decided to suspend all action against
Plaintiff pending resolution of this suit. [Docket No. 53, Ex. 1]
The fact that Defendant did not file a lawsuit does not necessarily lead to the conclusion that
it had no intention whatsoever to file one. However, a reasonable jury may believe that Defendant’s
failure to file a lawsuit on October 6th does show that Defendant had no intention to file a lawsuit
against Plaintiff. The reasonableness of this conclusion is bolstered by Defendant’s failure to file
a lawsuit before Plaintiff filed the action before this Court. Ms. Clay avers that Defendant was
waiting on a document to file a lawsuit but this does not explain why the suit was never filed.
Defendant does not argue that the document never came or provide any other reasons for its delay
in filing suit. Although Plaintiff does not present any other evidence of Defendant’s intention to file,
the Court believes that the absence of a lawsuit against Plaintiff is enough circumstantial evidence
to create a question of fact. The Court finds that whether Defendant intended to file a lawsuit is a
question of fact that must be presented to the jury for determination and summary judgment as to
this issue is inappropriate.
IT IS ORDERED that Defendant’s Motion for Judgment as a Matter of Law or, in the
alternative, Motion for Summary Judgment [Docket No. 50, filed April 8, 2013], construed as a
Motion for Summary Judgment, is DENIED. Defendant may re-raise a Rule 50 Motion for
Judgment as a Matter of Law at the close of Plaintiff’s proofs.
IT IS SO ORDERED.
s/ Denise Page Hood
DENISE PAGE HOOD
United States District Judge
DATED: June 14, 2013
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