McQueen v. Huddleston and Huddleston

Filing 24

DECISION AND ORDER denying Defendant's 18 MOTION for Summary Judgment. The parties are directed to exchange initial disclosures within 2 weeks of the entry of this order, and to meet and confer in accordance with Rule 26(f). The court finds that this case is appropriate for immediate referral to mediation. Selection of mediator due 2/9/2015. First Mediation Session due by 4/1/2015. Status Telephone Conference set for 4/8/2015 at 1:15 p.m. before Hon. John T. Curtin. Signed by Hon. John T. Curtin on 1/7/2015. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DONALD McQUEEN,
Plaintiff,
-v-

13-CV-302-JTC

LEE HUDDLESTON d/b/a
HUDDLESTON AND HUDDLESTON
ATTORNEYS AT LAW,
Defendant.

Plaintiff Donald McQueen brought this action in March 2013 seeking relief pursuant
to various provisions of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§§ 1692 et seq., against attorney Lee Huddleston doing business as Huddleston and
Huddleston, Attorneys at Law, based on allegations involving attempts made in early 2012
to collect on a debt that plaintiff contends had been satisfied in 2006. See Items 1, 12.
Defendant has now moved for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure.
For the reasons that follow, defendant’s motion is denied.

BACKGROUND
In the original complaint, plaintiff alleged that the law office of “Huddleston and
Huddleston,” organized and existing under the laws of the State of Kentucky, attempted
to contact him in early 2012 to collect on a defaulted consumer debt owed to CitiFinancial,
which plaintiff had previously satisfied through arrangements with the judgment creditor,
CSGA, LLC. Plaintiff claimed, among other things, that someone from the Huddleston

office left a voicemail on plaintiff’s phone on March 27, 2012, advising that steps were
being taken to execute on the judgment taken by CSGA, including legal action. See Item
1.
In response to the complaint, Mr. Huddleston filed a limited pro se appearance in
this action in order to assert various grounds for dismissal on the pleadings, including
improper venue; lack of personal jurisdiction; insufficient process; insufficient service; and
failure to join the Buffalo, New York law firm of Bronson & Migliaccio LLP (the “Bronson
firm”) as a necessary party. See Item 6. Mr. Huddleston asserted that he was unaware
of an entity doing business as “Huddleston and Huddleston,” and that plaintiff apparently
had confused the collection efforts of his law office (then doing business as “Huddleston
& Huddleston, Attorneys at Law PLLC”) in April 20091 with the efforts of the Bronson firm
to collect on a second, separate debt plaintiff had incurred with CitiFinancial.

Mr.

Huddleston further asserted that his law office closed its file on plaintiff out of an
abundance of caution when plaintiff produced documentation showing that one of the
debts had been paid, and that it must have been someone from the Bronson firm who left
the voicemail on March 27, 2012 looking for payment on the other CitiFinancial debt. See
id. at 2-4.
The court considered each of the grounds for dismissal raised by Mr. Huddleston
in his limited pro se submission, but denied the motion. McQueen v. Huddleston and
1

Those efforts consisted of a debt collection letter dated April 21, 2009, from
“Huddleston & Huddleston Attorneys at Law Collection Division,” signed by Mr. Huddleston
and sent from his law office in Kentucky to plaintiff at his Medina, New York address; and an
April 22, 2009, voicemail message left on plaintiff’s telephone answering machine. See Item 6,
p. 2; see also Item 22-3.
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Huddleston, 2013 WL 5592804 (W.D.N.Y. Oct. 10, 2013). The court found that the
complaint contained sufficient allegations of debt collection activity in the Western District
of New York on the part of the Huddleston law office to establish venue under the FDCPA,
and that there were genuine issues of material fact regarding the existence of two
separate CitiFinancial debts–and the confusion over debt collection efforts by the Bronson
and Huddleston law offices–precluding a determination of non-joinder under Fed. R. Civ.
P. 19. The court also granted plaintiff leave to amend the complaint in order to provide an
opportunity to name, serve, and obtain personal jurisdiction over the proper party. See id.
Plaintiff filed the amended complaint on November 11, 2013, naming “Lee
Huddleston d/b/a Huddleston and Huddleston Attorneys at Law” as defendant. Item 12.
Mr. Huddleston responded by filing a “hybrid” motion to dismiss for lack of personal
jurisdiction/answer, asserting insufficient minimum contacts with the forum state to comport
with due process. See Item 13. The court again denied the motion, finding that the totality
of the circumstances presented in the pleadings and submissions–including defendant’s
acknowledged collection efforts in April 2009–established a sufficient prima facie showing
to authorize the exercise of personal jurisdiction under New York's long-arm statute, N.Y.
Civ. Prac. L. & R. (“C.P.L.R.”) § 302(a). McQueen v. Huddleston, 17 F. Supp. 3d 248
(W.D.N.Y. May 1, 2014). The court also considered that potion of the hybrid submission
designated as the “Answer” to be the operative responsive pleading, and scheduled an
initial pretrial telephone conference for July 16, 2014, with specific directions to the parties
to comply with the requirements of Fed. R. Civ. P. 26(a) and (f) to exchange initial

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disclosures, meet and confer, and submit a proposed discovery plan prior to the
conference. Id. at 254.
As reflected by the entries on the court’s docket, none of these events have taken
place. Instead, Mr. Huddleston has filed a third dispositive motion, this time seeking
summary judgment pursuant to Fed. R. Civ. P. 56 on the ground that plaintiff has sued the
wrong party.

See Item 18.

According to Mr. Huddleston, neither “Huddleston &

Huddleston, Attorneys at Law PLLC” (the defendant sued in the initial complaint) nor
“Huddleston and Huddleston Attorneys at Law” (the defendant sued in the amended
complaint) are legally recognized existing entities, leaving only Lee Huddleston individually
as a viable defendant–and the undisputed facts show that Mr. Huddleston did not
personally commit any of the FDCPA violations offenses alleged, and that in any event Mr.
Huddleston is not a proper defendant because he does not earn a substantial portion of
his income from collecting debts. See id. Plaintiff responds that the motion should be
denied as premature, since no discovery has been conducted with regard to these
asserted facts. See Item 22.

DISCUSSION
Summary Judgment
Rule 56 provides that “[t]he court shall grant summary judgment 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. 56(a). Under the well-settled standards for
considering a motion for summary judgment, the moving party bears the initial burden of
establishing that no genuine issue of material fact exists. Rockland Exposition, Inc. v.
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Great American Assur. Co., 746 F. Supp. 2d 528, 532 (S.D.N.Y. 2010), aff'd, 445 F. App'x
387 (2d Cir. 2011). A “genuine issue” exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the
governing law ….” Id.
Once the court determines that the moving party has met its burden, the burden
shifts to the opposing party to “come forward with specific facts showing that there is a
genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (internal quotation marks and citation omitted); see also Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2000) (at summary judgment, “[t]he time has come ... ‘to put
up or shut up’ ”), cert. denied, 540 U.S. 811 (2003). In considering whether these
respective burdens have been met, the court “is not to weigh the evidence but is instead
required to view the evidence in the light most favorable to the party opposing summary
judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility
assessments.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(internal quotation marks and citation omitted). The court's role is not to resolve issues of
fact, but rather to determine “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251–52. When “little or no evidence may be found
in support of the nonmoving party's case ... [and] no rational jury could find in favor of the
nonmoving party because the evidence to support its case is so slight, there is no genuine

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issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential
Resid. Servs., L.P., 22 F.3d 1219, 1223–24 (2d Cir. 1994) (citations omitted).
Rule 56 provides further that, where the party opposing summary judgment “shows
by affidavit or declaration that, for specific 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 declaration or to take discovery; or (3) issue any other
appropriate order.” Fed. R. Civ. P. 56(d); see Benjamin v. Fosdick Mach. Tool Co., 2012
WL 4959424, at *2 (W.D.N.Y. Sept. 27, 2012). To obtain relief under Rule 56(d), the party
opposing summary judgment must establish: “(1) what facts are sought [to resist the
motion] and how they are to be obtained, (2) how those facts are reasonably expected to
create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and
(4) why the affiant was unsuccessful in those efforts.” Hudson River Sloop Clearwater,
Inc. v. Department of Navy, 891 F.2d 414, 422 (2d Cir. 1989); see also Miller v. Wolpoff
& Abramson, LLP., 321 F.3d 292, 303 (2d Cir.), cert. denied, 540 U.S. 823 (2003).
“While an affiant must show that the material sought is germane to the defense,
‘Rule 56[d] is a safeguard against premature grants of summary judgment and should be
applied with a spirit of liberality.’ ” Holmes v. Lorch, 329 F. Supp. 2d 516, 529 (S.D.N.Y.
2004) (quoting Dubai Islamic Bank v. Citibank, 126 F. Supp. 2d 659, 665 (S.D.N.Y. 2000)).
This is especially true where a party has not had an opportunity to conduct full discovery.
“The nonmoving party should not be ‘railroaded’ into his offer of proof in opposition to
summary judgment …,” Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 865 F.2d
506, 511 (2d Cir. 1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)), and

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“must have ‘had the opportunity to discover information that is essential to his opposition’
to the motion for summary judgment.” Id. (quoting Anderson, 477 U.S. at 250 n. 5).
Indeed, the Second Circuit has repeatedly counseled that “[o]nly in the rarest of cases may
summary judgment be granted against a plaintiff who has not been afforded the
opportunity to conduct discovery.” Hellstrom v. U.S. Dept. of Veterans Affairs, 201 F.3d
94, 97 (2d Cir. 2000); see also Trammell v. Keane, 338 F.3d 155, 161 n. 2 (2d Cir. 2003);
Miller, 321 F.3d at 303–04.
In support of his Rule 56(d) application, plaintiff has submitted the affirmation of his
attorney requesting the opportunity to conduct discovery of facts pertinent to Mr.
Huddleston’s contention that he does not qualify as a “debt collector” subject to suit under
the FDCPA. In this regard, the statute defines “debt collector” as a person either involved
“in any business the principal purpose of which is the collection of any debts,” or “who
regularly collects ... debts owed ... another.” 15 U.S.C. § 1692a(6). It is not seriously
contended on the present record that the principal purpose of Mr. Huddleston's business
is the collection of debts. Rather, plaintiff’s primary contention is that genuine issues of
material fact exist regarding whether Mr. Huddleston “regularly” engages in debt collection
activity, even if such activity is not a principal purpose of his business. See Goldstein v.
Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 61 (2d Cir. 2004) (§
1692a(6) “establishes two alternative predicates for ‘debt collector’ status—engaging in
such activity as the ‘principal purpose’ of the entity's business and ‘regularly’ engaging in
such activity.”); Ciampa v. Law Offices of Igor Dodin, PLLC, 978 F. Supp. 2d 174, 176
(E.D.N.Y. 2013).

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As instructed by the Second Circuit in Goldstein, the assessment as to whether a
lawyer or law firm “regularly” engages in debt collection activity within the meaning of
§ 1692a(6) “must be assessed on a case-by-case basis in light of factors bearing on the
issue of regularity …,” Goldstein, 374 F.3d at 62, including the factors in the following
“illustrative rather than exclusive” list:
(1) the absolute number of debt collection communications issued, and/or
collection-related litigation matters pursued, over the relevant period(s), (2)
the frequency of such communications and/or litigation activity, including
whether any patterns of such activity are discernable, (3) whether the entity
has personnel specifically assigned to work on debt collection activity, (4)
whether the entity has systems or contractors in place to facilitate such
activity, and (5) whether the activity is undertaken in connection with ongoing
client relationships with entities that have retained the lawyer or firm to assist
in the collection of outstanding consumer debt obligations.
Id. at 62–63. Importantly, it is the plaintiff who “bears the burden of proving the defendant's
debt collector status.” Id. at 60–61. Thus, in order to properly respond to Mr. Huddleston's
summary judgment motion, and ultimately, to prevail in this action, plaintiff would be
required to make a showing sufficient to support a determination that Mr. Huddleston or
his law office was regularly engaged in debt collection activity at the time of the challenged
communications. In the court’s view, the material sought by plaintiff is germane to this
defense, and “is neither cumulative nor speculative.” Paddington Partners v. Bouchard,
34 F.3d 1132, 1138 (2d Cir. 1994). Plaintiff should therefore be afforded the opportunity
to discover at least this essential information.
For his part, Mr. Huddleston correctly points out that this case has been pending
since March 2013, yet plaintiff’s counsel has made no efforts to obtain the discovery
sought. He asserts that, had such efforts been made, plaintiff would have discovered
(among other things) that Mr. Huddleston has only occasionally engaged in debt collection
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activity during his 43-plus years of practice, and at no time did such activity constitute a
substantial portion of his income; that the April 2009 collection letter was actually sent by
NetQuest Recovery Services, Inc., on behalf of Huddleston & Huddleston, Attorneys at
Law PLLC (not Mr. Huddleston individually); and that the collection activity in March
2012–including the March 27, 2012 voicemail (of which a recording was made) and the
ensuing conversations demanding payment of the previously-satisfied CitiFinancial
debt–was undertaken by someone other than Mr. Huddleston, i.e., someone from the
Bronson firm.
The court is sympathetic to these concerns. However, as the discussion above
reveals, a measure of the slow progress of this litigation is traceable to the briefing and
consideration of defendant’s successive dispositive motions, as well as circumstances
necessitating the court’s adjournment and rescheduling of the initial preliminary pretrial
conference. Moreover, since the May 1, 2014 entry of the decision and order denying
defendant’s second motion to dismiss, both parties have been subject to the court’s
direction to comply with the initial disclosure and informal conference requirements of Rule
26, providing a clear opportunity to address many of the concerns raised by the
submissions on the present motion. Considering all of these circumstances, and in the
interests of merit-based dispute determination and safeguarding against improvident or
premature entry of summary judgment, the court finds that the best course to follow is reauthorization and enforcement of the prior order directing compliance with the initial
disclosure and informal conference requirements of Rule 26(a)(1) and (f), subject to the
timing and further directives set forth immediately below.

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CONCLUSION
Based on the foregoing, the following is ORDERED:
Plaintiff’s request for relief pursuant to Rule 56(d) is granted.
Defendant’s motion for summary judgment (Item 18) is denied, without prejudice.
Within two weeks from the date of entry of this order, the parties shall exchange
initial disclosures as required by Rule 26(a)(1), and shall meet and confer in accordance
with Rule 26(f). The conference may be conducted by telephone, and all efforts shall be
made during the conference to reach prompt resolution of the matters in dispute in this
lawsuit, or at the very least, to fully address the remaining considerations outlined in Rule
26(f)(2).
In addition, the court finds that this case is appropriate for immediate referral to
mediation in accordance with section 2.1B of the Plan for Alternative Dispute Resolution
in the Western District of New York. Should the parties be unable to reach a resolution of
the case during the Rule 26(f) conference, the parties shall select a Mediator, confirm the
Mediator’s availability, ensure that the Mediator does not have a conflict with any of the
parties in the case, identify a date and time for the initial mediation session, and file a
stipulation confirming their selection on the form provided by the court no later than
February 9, 2015. The initial mediation session shall be held no later than April 1 , 2015.
A status telephone conference shall be held on April 8, 2015 at 1:15 p.m. if this
matter has not settled. A further schedule will then be set. The court will initiate the call.

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So ordered.

\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated: January 7, 2015
p:\pending\2013\13-302.jan7.2015

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