Whitworth v. National Enterprise Systems, Inc. et al

Filing 42

Findings & Recommendation: Defendants' Motion for Partial Summary Judgment 30 should be denied. These Findings and Recommendation will be referred to a district judge. Objections to the Findings and Recommendation are due by 8/26/2009 . If no objections m'e filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due within 10 days after being served with a copy ofthe objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement. Signed on 8/12/09 by Magistrate Judge Paul Papak. (gm)

FILED

12

I N T H E UNITED S T A T E S D I S T R I C T C O U R T F O R T H E DISTRICT OF OREGON

LESLIE M. WHITWORTH, Plaintiff, CV 08-968-PK FINDINGS A N D RECOMMENDATION

v.

N A T I O N A L ENTERPRISE SYSTEMS, I N C . , R U S S DOE, a n d M I C H E L L E DOE, Defendants. PAP AK, Magistrate Judge: This action w a s filed b y plaintiff Leslie M. WhitwOlih against defendant National Enterprise Systems, Inc. ("National"), and two o f its employees, Doe defendants Russ and Michelle, on August 19, 2008. Whitworth alleges defendants' liability under the federal Fair Debt Collection Practices Act (the "FDCPA") and the Oregon Unlawful Debt Collection Practices Act (the "OUDCPA"). This court has subject-matter jurisdiction over WhitwOlih's P a g e I - FINDINGS A N D R E C O M M E N D A T I O N

claims pursuant t o 15 U.S.C. § 1692k(d), 28 U.S.C. §§ 1331 and 1367. N o w before the C O U l t is defendants' motion (#30) for partial summary judgment, in which defendants argue that Whitworth is judicially estopped from seeking damages in excess o f $ 1 , 0 0 0 o n his F D C P A c l a i m a n d from l i t i g a t i n g h i s O U D C P A claim. I h a v e c o n s i d e r e d t h e motion, oral argument on b e h a l f o f the parties, and all o f the pleadings on file. For the reasons set forth below, defendants' motion should be denied.

LEGAL STANDARD
Summaty j u d g m e n t is appropriate " i f the pleadings, depositions, answers t o inten'ogatories, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact and that the moving p a t t y i s entitled t o a judgment as a matter o f l a w . " Fed. R. Civ. P. 56(c). Summary j u d g m e n t is not proper i f material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); A n d e r s o n v. L i b e r t y
Lobby, Inc., 477 U.S. 242, 248 (1986); Warren v. City o f Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 S.C!. 1261 (1996). In evaluating a motion for s u m m a t y judgment, the

district courts o f the United States must draw all reasonable inferences in favor o f the nonmoving party, and may neither make credibility detelIDinations nor perfOlID any weighing o f the evidence. See, e.g., Lytle v. H o u s e h o l d ivf!g., Inc., 494 U.S. 545, 554-55 (1990); Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).

FACTUAL BACKGROUND
Defendant National is i n the business o f managing and collecting overdue debts and a c c o u n t s receivable. I n o r a r o u n d N o v e m b e r 2 0 0 7 , N a t i o n a l a c q u i r e d a d e l i n q u e n t c o n s u m e r debt owed by plaintiff Whitworth. Whitworth alleges that between November 21, 2007, and

P a g e 2 - FINDINGS A N D R E C O M M E N D A T I O N

December 6, 2007, defendants and National employees "Michelle" and "Russ" contacted h i m by telephone at least 28 times in the course o f National's efforts to collect the debt. He alleges that i n t h e s e t e l e p h o n e calls M i c h e l l e a n d R u s s r e p e a t e d l y a n d i m p r o p e r l y r e q u e s t e d p e r s o n a l a n d financial infOimation, accused h i m o f fraud, and threatened him with legal action, as well as vilifying and abusing him, all in violation o f the FDCPA and OUDCPA, which prohibit abusive o r u n f a i r debt c o l l e c t i o n p r a c t i c e s . O n Februmy 28, 2008, Whitworth filed a petition for bankruptcy under Chapter 13 o f t h e Bankruptcy Code. He listed his potential claim against the defendants among his assets, valuing the claim at approximately $1,000 and characterizing it as a claim under the FDCPA. Subsequently, on May 8, 2008, Whitworth amended his petition, again listing among his assets a potential FDCPA claim valued a t approximately $1,000. On June 2, 2008, the Bankruptcy Court confirmed Whitworth's debtor's plan. T h i s a c t i o n w a s filed A u g u s t 1 9 , 2 0 0 8 . W h i t w o r t h alleges d e f e n d a n t s ' liability f o r violation o f b o t h the FDCPA and the OUDCPA, and seeks