Norman v. RJM Acquisitions LLC
Filing
62
Memorandum Opinion and Order granting 39 RJM Acquisitions LLC's Motion for Summary Judgment. (Ordered by Chief Judge Sidney A Fitzwater on 8/8/2012) (axm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
WAYNE H. NORMAN,
Plaintiff,
VS.
RJM ACQUISITIONS, LLC,
Defendant.
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§ Civil Action No. 3:11-CV-1330-D
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MEMORANDUM OPINION
AND ORDER
In this pro se action by plaintiff Wayne H. Norman (“Norman”) alleging violations
of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., defendant RJM Acquisitions,
LLC (“RJM”) moves for summary judgment. Concluding the plaintiff has failed to raise a
genuine issue of material fact on an essential element of his FCRA and FDCPA claims, the
court grants the motion and dismisses this suit by judgment filed today.
I
Norman alleges that, on five occasions, RJM obtained a credit report on Norman from
a credit reporting agency, without any FCRA-sanctioned purpose and without his consent.1
Norman asserts that RJM violated FCRA § 1681n, 15 U.S.C. § 1681n, and FDCPA
1
In recounting the factual background, the court summarizes the evidence in the light
most favorable to Norman as the summary judgment nonmovant and draws all reasonable
inferences in his favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541 F.Supp.2d 869,
870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n v. Safeguard Ins.
Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).
§ 1692k(2)(A), 15 U.S.C. § 1692k(2)(A), and he seeks statutory and other damages.
RJM maintains that it acquired a portfolio of debts in 2005, including Norman’s
account. It contends that the only communication it had with any credit reporting agency
regarding Norman’s indebtedness was to seek what is referred to in the industry as a “soft
pull,” i.e., a request for updated address information only. RJM moves for summary
judgment, contending that, as the owner and holder of Norman’s debt, it had the right to
collect the indebtedness in question and therefore had a right to obtain a credit report to
review and collect on the account. It also argues that Norman’s FDCPA claim must fail
because there is no evidence that RJM made any misrepresentation. Norman opposes the
motion.2
II
When a party moves for summary judgment on a claim for which the opposing party
will bear the burden of proof at trial, the moving party can meet its summary judgment
obligation by pointing the court to the absence of admissible evidence to support the
opposing party’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the
moving party does so, the opposing party must go beyond his pleadings and designate
specific facts showing there is a genuine issue for trial. See id. at 324; Little v. Liquid Air
2
After RJM filed its reply brief, Norman filed a motion for leave to file a surreply,
arguing RJM “is attempting to have a Summary Judgment on issues that were never alleged
by the Plaintiff in his Complaint.” P. Mot. for Lv. to File Surreply 2. The court holds that
RJM has properly moved for summary judgment on the claims alleged in the complaint, and
it otherwise concludes that Norman should not be granted leave to file a surreply. Therefore,
his motion is denied.
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Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the
evidence is such that a reasonable jury could return a verdict in the opposing party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The opposing party’s failure to
produce proof as to any essential element of a claim renders all other facts immaterial. See
Trugreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater,
J.). Summary judgment is mandatory if the opposing party fails to meet this burden. Little,
37 F.3d at 1076.
III
The court begins by considering Norman’s FCRA claim. The plain language of
FCRA prohibits anyone from obtaining a consumer report without a permissible purpose.
See 15 U.S.C. § 1681b(f). Section 1681b(a)(3) lists the all-inclusive purposes for which a
consumer report can be obtained, and states, in pertinent part:
(a) In general . . . [A] consumer reporting agency may furnish
a consumer report under the following circumstances and no
other:
(3) To a person which it has reason to believe—
(A) intends to use the information in connection with a credit
transaction involving the consumer on whom the information is
to be furnished and involving the extension of credit to, or
review or collection of an account of, the consumer[.]
Id. (emphasis added).
RJM argues that, because it was the owner and holder of Norman’s debt, it had the
right to collect the indebtedness in question and it therefore had the right to obtain a credit
report either to “review the account (e.g. to determine what steps would be appropriate to
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attempt to collect on the account and whether or not to do so) [or] to collect on the account.”
D. Br. 4; see also Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 34 (3d Cir. 2011) (per
curiam) (holding that § 1681b(a)(3)(A) authorizes debt collection agency to access debtor’s
credit report to collect on debtor’s delinquent accounts); Thomas v. U.S. Bank, N.A., 325 Fed.
Appx. 592, 2009 WL 1385966, at *1 (9th Cir. May 19, 2009) (unpublished opinion)
(“requesting a credit report with the intent to collect on a debt is among the ‘permissible
purposes’ listed in the FCRA.”).
Norman does not dispute that, if RJM is the owner of the account, RJM is permitted
under FCRA to access his credit report in connection with its collection activities. Instead,
Norman argues that RJM is not entitled to summary judgment because RJM has failed to
adduce evidence
to show the existence of any alleged “account” indicating what
type of account it is, who the alleged original creditor is, its
origination date, any amounts that may be owed, any contract,
or any other identifying information regarding the alleged
account that would give [RJM] a permissible purpose to obtain
[Norman’s] consumer credit file five times.
P. Br. 12. Norman misunderstands the parties’ respective summary judgment burdens as they
apply to this issue.
As the movant seeking summary judgment on a claim as to which it will not have the
burden at trial, RJM is simply required to point the court to the absence of evidence to
support Norman’s FCRA claim. See Celotex, 477 U.S. at 325. RJM satisfied this obligation
by pointing to an absence of evidence that it obtained Norman’s credit report without a
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“permissible purpose” under FCRA. The summary judgment burden then shifted to Norman
to produce evidence that would enable a reasonable trier of fact to find (as pertinent here)
that RJM did not own Norman’s account. Norman’s mere assertion that there is an absence
of evidence that RJM was the owner or holder of his debt improperly places the summary
judgment burden on RJM and thus does not create a genuine issue of fact that requires a trial.
Apart from his assertion, Norman has not produced any evidence to support the reasonable
finding that RJM obtained his credit report for an impermissible purpose.
Accordingly, because Norman has failed to meet his summary judgment burden, the
court grants RJM’s motion for summary judgment dismissing Norman’s FCRA claim.
IV
RJM also moves for summary judgment as to Norman’s FDCPA claim. Norman
alleges RJM violated FDCPA § 1692e, which provides “[a] debt collector may not use any
false, deceptive, or misleading representations or means in connection with the collection of
any debt.” 15 U.S.C. § 1692e. RJM argues that it is entitled to summary judgment
dismissing Norman’s FDCPA claim because “[n]o representations, of any kind, were made
by the Defendant to any credit reporting agency and no information was furnished by the
Defendant to any credit reporting agency. Without making a representation, it is impossible
for the Defendant to have made a misrepresentation.” D. Br. 5. Norman has failed in his
summary judgment response to point the court to any evidence that would enable a
reasonable trier of fact to find that RJM made a misleading representation or otherwise acted
in violation of the FDCPA. Accordingly, the court grants RJM’s motion for summary
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judgment dismissing Norman’s FDCPA claim.
V
Norman argues in his summary judgment response that summary judgment is
improper because discovery has not yet closed.
First, there is a difference between a full opportunity to conduct discovery and a full
opportunity to complete discovery. The two concepts are distinct. See McCarty v. United
States, 929 F.2d 1085, 1088 (5th Cir. 1991) (per curiam) (citing Washington v. Allstate Ins.
Co., 901 F.2d 1281, 1285 (5th Cir. 1985)) (rejecting nonmovant’s contention that district
court abused its discretion by failing to permit him to complete discovery before granting
summary judgment, and holding that “Rule 56 does not require that discovery take place
before granting summary judgment.”). The fact that the discovery period has not closed does
not mean that granting summary judgment is premature.
Second, the proper procedure for Norman to follow to obtain a continuance for RJM’s
summary judgment is found in Fed. R. Civ. P. 56(d) (formerly Rule 56(f)). Under Rule
56(d), the court can “(1) defer considering the [summary judgment] motion or deny it; (2)
allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order,” provided the “nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition.” Id. Rule 56(d)
functions as a safe harbor that has been built into the rules so that summary judgment is not
granted prematurely. See, e.g., Union City Barge Line, Inc. v. Union Carbide Corp., 823
F.2d 129, 136 (5th Cir. 1987) (referring to Rule 56(f)). It is “usually invoked when a party
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claims that it has had insufficient time for discovery or that the relevant facts are in the
exclusive control of the opposing party.” Id.
“[Rule 56(d)] motions are broadly favored and should be liberally granted.” Culwell
v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006). Nevertheless, to warrant a
continuance for purposes of obtaining discovery, “a party must indicate to the court by some
statement . . . why [it] needs additional discovery and how the additional discovery will
create a genuine issue of material fact.” Stults v. Conoco, Inc., 76 F.3d 651, 657-58 (5th Cir.
1996) (internal quotation marks omitted) (quoting Krim v. BancTexas Grp., Inc., 989 F.2d
1435, 1442 (5th Cir. 1993)). It is not sufficient for a summary judgment nonmovant to allege
that discovery is incomplete or that discovery will produce needed but unspecified facts. See
Washington, 901 F.2d at 1284-85. The party must demonstrate “how the additional time will
enable [it] to rebut the movant’s allegations of no genuine issue of fact.” Id. at 1286 (internal
quotation marks omitted) (quoting Weir v. Anaconda Co., 773 F.2d 1073, 1083 (10th Cir.
1985)). A nonmovant is not entitled to a continuance if it “fail[s] to explain what discovery
[it] did have, why it was inadequate, and what [it] expected to learn from further discovery”
and gives only “vague assertions of the need for additional discovery.” Bauer v. Albemarle
Corp., 169 F.3d 962, 968 (5th Cir. 1999) (quoting Reese v. Anderson, 926 F.2d 494, 499 n.5
(5th Cir. 1991) (internal quotation marks omitted)).
Even if the court were to treat Norman’s argument as a proper Rule 56(d) motion, he
has failed to demonstrate why he needs additional discovery or how the additional discovery
would create a genuine issue of material fact. Accordingly, to the extent Norman has
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requested a continuance under Rule 56(d), his motion is denied.
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For the foregoing reasons, RJM’s May 25, 2012 motion for summary judgment is
granted, and this action is dismissed with prejudice by judgment filed today.
SO ORDERED.
August 8, 2012.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
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