Nuss v. Utah Orthopeadic Associates et al

Filing 23

MEMORANDUM DECISION AND ORDER granting 6 Defendant's Motion for Summary Judgment and Order to Show Cause. Signed by Judge Ted Stewart on 08/02/2011. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

MICHAEL NUSS,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT AND ORDER TO
SHOW CAUSE

vs.

UTAH ORTHOPAEDIC ASSOCIATES,
P.C., and JOHNSON, RIDDLE, & MARK,
LLC,

Case No. 2:09-CV-647 TS

Defendants.

This matter comes before the Court on a Motion for Summary Judgment filed by
Defendant Johnson, Riddle, & Mark, LLC (“JRM”). For the reasons discussed below, the Court
will grant the Motion.
I. MOTION TO STRIKE
Defendant Johnson, Riddle, & Mark, LLC (“JRM”) filed the Affidavit of Jana Petty in
support of its Motion for Summary Judgment. Plaintiff Michael Nuss (“Nuss”) objects to the
Affidavit of Jana Petty and asks that it be stricken. Nuss argues that Ms. Petty’s affidavit lacks

1

personal knowledge and foundation, and that the attached documents fail to meet the business
record exception to the hearsay rule.
“[A]ffidavits . . . used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”1 Personal knowledge means the affiant’s
testimony is based on the affiant’s actual perceptions or observations2 as opposed to “statements
of mere belief.”3 Nevertheless, “personal knowledge of the affiant . . . may be inferred from the
context of the affidavit.”4
In her affidavit, Ms. Petty testifies as to her position with JRM, experience with the
company, knowledge of the company’s procedures and computer systems, and the records of this
case.5 From this testimony—forming the context of the affidavit—the Court can infer that Ms.
Petty is testifying from personal knowledge. Ms. Petty additionally testifies that, in accordance

1

Fed.R.Civ.P. 56(c)(4).

2

Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (2006)
(quoting United States v. Sinclair, 109 F.3d 1527, 1536 (10th Cir. 1997)) (lacking personal
knowledge if “witness could not have actually perceived or observed that which he testifies to”).
3

Id. (quoting Tavery v. United States, 32 F.3d 1423, 1427 n.4 (10th Cir. 1994))
(“Accordingly, at the summary judgment stage, ‘statements of mere belief’ in an affidavit must
be disregarded.”).
4

Roberts v. Cessna Aircraft Co., No. 07-3133, 2008 WL 3524009, at *2 (10th Cir. Aug.
14, 2008); see also Told v. Tig Premier Ins. Co., No. 03-4113, 2005 WL 1910796, at *3 (10th
Cir. Aug. 10, 2005) (“[G]enerally Rule 56(e)’s requirements of personal knowledge and
competence to testify may be inferred if it is clear from the context of the affidavit that the affiant
is testifying from personal knowledge.”).
5

See Docket No. 13, Aff. of Jana Petty.
2

with JRM’s procedures, she personally reviewed and took certain actions in regards to Nuss’
records.6 Such testimony—based on Ms. Petty’s actual perceptions or
observations—substantiates that Ms. Petty’s affidavit is based on personal knowledge. The
Court, accordingly, finds that Ms. Petty’s affidavit is admissible and it will be considered by the
Court in resolving Defendant’s Motion.
As to the documents attached to Ms. Petty’s affidavit, Rule 803(6) of the Federal Rules of
Evidence “provides an exception to the hearsay rule for records ‘kept in the course of regularly
conducted business activity . . . if it was the regular practice of that business activity to make the
. . . record.’”7 “A foundation for admissibility may at times be predicated on judicial notice of
the nature of the business and the nature of the records as observed by the court.”8
In the present case, the Court finds foundation for the admissibility of both the
demonstrative initial demand letter and the communications log attached to Ms. Petty’s affidavit
by considering the nature of JRM’s business and the nature of the attached records. JRM’s
business is to collect debts, and both the demonstrative initial demand letter and the
communications log are examples of typical records created and kept as part of a debt collection
business.
6

Id. at 3 (testifying she personally received, reviewed, and responded to Defendant’s
letter disputing validity of debt).
7

United States v. Yeley-Davis, 632 F.3d 673, 678 (10th Cir. 2011) (quoting Fed.R.Evid.
803(6)) (alterations in original).
8

United States v. Johnson, 971 F.2d 562, 571 (10th Cir. 1992) (quoting FDIC v.
Staudinger, 797 F.2d 908, 910 (10th Cir. 1986)) (approving district court determination that “the
nature of the documents and the circumstances under which the investors received them were
sufficient to establish their status as business records”).
3

The Court also finds foundation for the admissibility of the two remaining attachments: a
letters received from Nuss, and documents from Spine and Sports Medicine, PC (“SSM”) and
Nuss’ insurance company, USAA. The Court finds these documents admissible because,
although not created by JRM, the documents may be properly admissible for the purposes for
which they are submitted—to show that JRM had a reasonable basis for attempting to collect the
debt from the Nuss.
Finally, the Court notes that Nuss has not submitted evidence in support of his arguments
against Ms. Petty’s affidavit. There is no evidence in the record that disputes Ms. Petty’s
testimony or the documents attached to Ms. Petty’s affidavit. Based on the foregoing reasons,
the Court will deny Plaintiff’s Motion to Strike and will consider Ms. Petty’s affidavit and the
attached documents in its consideration of the JRM’s Motion for Summary Judgment.
II. FACTUAL BACKGROUND
In late 2008 and early 2009, Nuss sought treatment for injuries sustained in an automobile
accident. Nuss was treated by Dr. Charles M. Bova of SSM. Nuss’ insurance company, USAA,
was billed for the services. However, USAA refused to pay because benefits were exhausted.
SSM was unsuccessful in obtaining payment directly from Nuss. SSM, consequently, engaged
JRM to collect the debt owed by Nuss to SSM. Shortly after being retained to collect the debt,
on or about May 7, 2008, JRM sent an initial collection letter. The letter contained the “mini
Miranda” notices and warnings required by law.
Nuss contacted JRM by telephone on or about May 12, 2008, confirming that he received
the initial collection letter. On or about June 16, 2008, JRM received a letter from Nuss

4

disputing the validity of the debt owed to SSM. The letter from Nuss was accompanied by a
letter from Nuss’ former counsel indicating that no debt was owed to Utah Orthopaedic
Associates. JRM immediately sent Nuss verification of the debt owed to SSM. After an
appropriate delay to ensure that Nuss received the verification of the debt owed to SSM, JRM
continued collection efforts.
On or about June 9, 2009, Nuss commenced an action against JRM in Utah state court for
violation of the Fair Debt Collection Practices Act (“FDCPA”) and Utah Consumer Sales
Practices Act (“UCSPA”).
III. SUMMARY JUDGMENT STANDARD
“[S]ummary judgment is proper ‘if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law.’”9 The
Court decides whether a genuine dispute as to any material fact exists by determining whether a
reasonable jury could return a verdict for the nonmoving party in light of all the evidence
presented.10 “Summary judgment is ‘appropriate’ under Rule [56(a)] only when the moving party
has met its initial burden of production under Rule 56(c).”11 “When the moving party has carried
9

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)); see
also Fed.R.Civ.P. 56(c)(1) (requiring both moving and nonmoving party to support his or her
assertions by “citing to particular parts of materials in the record”); Dillon v. Fibreboard Corp.,
919 F.2d 1488, 1490 (10th Cir. 1990) (recognizing nonmoving party “may not rest on his
pleadings . . . [but] must set forth specific facts showing that there is a genuine issue for trial”).
10

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

11

Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002) (quoting Adickes v. S.H. Kress
& Co., 389 U.S. 144, 160 (1970)).
5

its burden under Rule 56(c), its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts.”12 “In the language of the Rule, the nonmoving party
must come forward with ‘specific facts showing that there is a genuine issue for trial.’”13 “The
purpose of a summary judgment motion . . . is to determine whether there is evidence to support
a party’s factual claims. Unsupported conclusory allegations thus do not create a genuine issue
of fact.”14 In other words, “[u]nsupported allegations may suffice for a complaint, but they are
insufficient to defeat summary judgment.”15
IV. DISCUSSION
JRM moves the Court to grant its Motion for Summary Judgment arguing that it has fully
complied with its obligations under the FDCPA and the UCSPA, and that this case presents no
genuine dispute of material fact with respect to Nuss’ claims against JRM. Additionally, JRM
moves the Court to dismiss this action for failure to prosecute because Nuss abandoned this
litigation soon after initiating it more than eighteen months ago.

12

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

13

Id. at 587 (quoting Fed.R.Civ.P. 56(e)) (restructured as 56(a)) (emphasis in original).

14

Abdulhaseeb v. Calbone, 600 F.3d 1301, 1321 (10th Cir. 2010) (quoting L&M Enter.,
Inc. v. BEI Sensors & Sys. Co., 231 F.3d 1284, 1287 (10th Cir. 2000)).
15

Hinojos v. Honeywell FM&T, No. 06-2310, 2007 WL 1271521, at *2 (10th Cir. May 2,

2007).
6

A.

VIOLATIONS OF THE FDCPA
“To prevail on a claim under the FDCPA, a plaintiff must prove that a ‘debt collector’s’

effort to collect a ‘debt’ from a ‘consumer’ violated some provision of the FDCPA.”16 The
FDCPA broadly prevents a debt collector from misrepresenting the nature of the debt owed by
the debtor, and requires a debt collector to provide certain statutorily-required notices.17 The
UCSPA likewise prohibits deceptive or unconscionable acts or practices in consumer
transactions, including enforcement of a consumer transaction.18
In his Complaint, Nuss alleges that JRM violated the FDCPA by (1) failing to properly
respond to Nuss’ debt validation request and suspend collection activities pending validation; (2)
misrepresenting the nature, character, and/or amount of debt by misstating that there is a past due
balance, trying to collect monies not owed, and reporting incorrect credit information; and (3)
failing to provide statutorily required notices to Nuss.
i.

Response to debt validation request.

Under the FDCPA, a debtor may request validation or verification of a debt from a debt
collector.19 If a debt is disputed in writing within thirty-days of receipt of an initial 1692g(a)
notice, a collector must “cease collection of the debt . . . until the debt collector obtains

16

Maynard v. Cannon, 401 Fed. Appx. 389, 393 (10th Cir. 2010).

17

See 15 U.S.C. §§ 1692e-g.

18

See Utah Code Ann. §§ 13-11-3 to -4.

19

See 15 U.S.C. §§ 1692g(a)(4), (b).
7

verification of the debt” and mails a copy of the verification to the debtor.20 “This provision is
not intended to give a debtor a detailed accounting of debt to be collected. Instead, ‘consistent
with the legislative history, verification is only intended to eliminate the problem of debt
collectors dunning the wrong person or attempting to collect debts which the consumer has
already paid.’”21 The Fourth Circuit has held that “verification of a debt involves nothing more
than the debt collector confirming in writing that the amount being demanded is what the creditor
is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt.”22
Here, Nuss alleges that JRM failed to provide verification of the debt when requested,
and that JRM pursued collection despite failing to verify the debt. Nuss, however, does not
provide any evidence in support of his allegations. On the other hand, JRM has provides sworn
testimony and documentary evidence indicating that JRM promptly sent verification of the debt
upon receipt of Nuss’ letter disputing the debt. Specifically, Ms. Petty testifies that she prepared
and sent a letter to Nuss validating the debt owed to SSM—which is confirmed by the attached
communications log.23 The communications log additionally indicates that the validation letter
was sent on or about June 16, 2008, there is no record of the validation letter being returned or

20

15 U.S.C. § 1692g(b).

21

Maynard, 401 Fed. Appx. at 396 (quoting Chaudhry v. Gallerizzo, 174 F.3d 394, 406
(4th Cir. 1999)).
22

Chaudhry, 174 F.3d at 406; see also Maynard, 401 Fed. Appx. at 396 (following
Chaudhry).
23

See Docket No. 13, at 4, Ex. B.
8

undeliverable, and that collection activities were suspended until on or about December 3,
2008.24
Nuss, as the nonmoving party, “must come forward with ‘specific facts showing that
there is a genuine issue for trial.”25 Nuss has failed to do so, and unsupported allegations are not
enough to defeat summary judgment. Based on the aforementioned reasons, the Court will grant
JRM’s Motion for Summary Judgment on this claim.
ii.

Misrepresentation and attempts to collect debt.

Nuss next attempts to state a claim under the FDCPA by alleging that the debt JRM
sought to collect was not owed.
Section § 1692e(2)(A) “provides that a debt collector may not falsely represent the
character, amount or legal status of any debt. Section 1692(e)(10) prohibits ‘the use of any false
representation or deceptive means to collect or attempt to collect any debt or to obtain
information concerning a consumer.’”26 However, “[c]ourts have held ‘that the allegation that
the debt sought to be collected is not owed, standing alone, cannot form a basis for a ‘false and

24

See Docket No. 13, Ex. B.

25

Matsushita, 475 U.S. at 586.

26

Reed v. AFNI, Inc., No. 2:09-CV-459 TS, 2011 WL 112430, at *2 (D. Utah Jan. 13,
2011) (quoting 15 U.S.C. § 1692e(10)).
9

misleading practices’ claim under the FDCPA.’”27 In addition, to state a claim under 15 U.S.C. §
1692e, a plaintiff must show that a misstatement of an amount owed is knowing or intentional.28
Nuss fails to provide evidence supporting his allegation that JRM was, in fact, attempting
to collect an invalid debt, or that JRM knowingly made any misrepresentation concerning the
validity of the debt to the debtor or a credit agency. According to Ms. Petty’s testimony, JRM
never made a report to any credit agency regarding Nuss.29 Thus, in light of the evidence
presented by JRM and the fact that Nuss fails to support his arguments, the Court will grant
summary judgment in JRM’s favor on this claim.
iii.

Statutorily-required notices.

Under the FDCPA, a collector is required, within five days of initiating collection
activities against a debtor, to provide the debtor with a written notice containing:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the
notice, disputes the validity of the debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within
the thirty-day period that the debt, or any portion thereof, is disputed, the debt
collector will obtain verification of the debt or a copy of a judgment against the

27

Id. at *2 (quoting Bleich v. Revenue Maximization Group, Inc., 233 F. Supp. 2d 496,
500 (E.D.N.Y. 2002)).
28

Ducrest v. Alco Collections, Inc., 931 F.Supp. 459, 462 (D. M.D. La. 1996) (reasoning
that the terms of the act “clearly contemplate a knowing and intentional act”).
29

See Docket No. 13, at 4.
10

consumer and a copy of such verification or judgment will be mailed to the
consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day
period, the debt collector will provide the consumer with the name and address of
the original creditor, if different from the current creditor. 30
Nuss contends—without evidentiary support—that JRM failed to provide the notices
required by statute. However, sworn testimony31 and documentary evidence32 provided by JRM
indicate that the initial written communication sent to all debtors, including the initial
communication sent to Nuss in this case, contains the required notices and warnings. Thus, the
Court will grant JRM’s Motion on this claim because the only evidence in the record shows that
JRM complied with the FDCPA by providing all the notices and warnings in writing as required
by statute.
B.

VIOLATIONS OF THE UCSPA
Nuss alleges that JRM has violated the UCSPA by engaging in “deceptive” and

“unconscionable” acts and practices in conjunction with its collection activities.33 Under the
UCSPA, the defendant must have “committed a deceptive act or practice ‘knowingly or

30

See 15 U.S.C. 1692g(a)(1)-(5).

31

See Docket No. 13, at 2 (testifying that the inclusion of the notices is JRM’s standard
business practice).
32

See Docket No. 13, Ex. A.

33

See Carlie v. Morgan, 922 P.2d 1, 6 (Utah 1996).
11

intentionally.’”34 And under the UCSPA, a plaintiff cannot assert that an attempt to collect a debt
is deceptive or unconscionable simply because the debt is contested.35
As with his other causes of action, Nuss has failed to support his UCSPA claim with
anything more than unsupported allegations, which, again, is not enough to defeat a motion for
summary judgment. The Court, consequently, will grant the Motion for Summary Judgment in
JRM’s favor.
C.

FAILURE TO PROSECUTE
Having found summary judgment appropriate, as set forth above, the Court finds JRM’s

Motion to Dismiss under Rule 41(b) to be moot.
V. CONCLUSION
It is therefore
ORDERED that Defendant’s Motion for Summary Judgment (Docket No. 6) is
GRANTED. It is further
ORDERED that Plaintiff shall show cause as to why his claim against Defendant Utah
Orthopaedic Associates should not be dismissed for failure to prosecute. Failure to do so within
fourteen (14) days of this Order may result in dismissal of those claims.

34

Kee v. R-G Crown Bank, 656 F. Supp. 2d 1348, 1356 (D. Utah 2009) (quoting Utah
Code Ann. § 13-11-4(2)).
35

See id.
12

DATED August 2, 2011.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

13