Ruesch et al v. Purple Shovel et al
Filing
113
MEMORANDUM DECISION AND ORDER granting 72 Motion for Partial Summary Judgment AND granting 77 Motion for Partial Summary Judgment. The Ruesches FDCPA claim is DISMISSED with prejudice. Signed by Judge David Nuffer on 6/24/2019. (jds)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
DON L. RUESCH, and LONEVA R.
RUESCH,
MEMORANDUM DECISION AND
ORDER GRANTING MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
Plaintiffs,
Case No. 4:18-cv-00028-DN
v.
District Judge David Nuffer
PURPLE SHOVEL, LLC; STRONG &
HANNI, P.C.; MICHAEL L. FORD;
STEPTOE & JOHNSON LLP;
STATEWIDE COURT & ATTORNEY
SERVICES LLC; JAMES EDWARD
HOUGHTALEN; CHRIS WORRELL;
WENDY WORRELL; DAMIAN BATES;
and DOE DEFENDANTS 1–6,
Defendants.
Defendants Strong & Hanni P.C. and Michael L. Ford (collectively, “S&H”) filed a
motion 1 for partial summary judgment with respect to Plaintiffs Don L. and Loneva R. Ruesch’s
claim for relief under the Fair Debt Collection Practices Act (“FDCPA”). 2 Defendant Steptoe &
Johnson (“Steptoe”) has also filed a motion for partial summary judgment on this issue. 3
Because there is no genuine dispute as to any material fact and S&H and Steptoe are entitled to
judgment as a matter of law, their motions are GRANTED.
1
Strong & Hanni’s Partial Motion for Summary Judgment (“S&H’s Motion”), docket no. 72, filed December 21,
2018; see Memorandum in Opposition to Defendant Strong & Hanni’s Partial Motion for Summary Judgment
(“Opposition”), docket no. 82, filed January 18, 2019; Strong & Hanni’s Reply Memorandum in Support of Its
Partial Motion for Summary Judgment (“Reply”), docket no. 83, filed January 30, 2019.
2
3
15 U.S.C. § 1692 et seq.
Steptoe & Johnson’s Motion for Partial Summary Judgment, docket no. 77, filed January 3, 2019; see
Memorandum in Opposition to Defendant Steptoe & Johnson’s Motion for Partial Summary Judgment, docket
no. 85, filed January 31, 2019.
elm
UNDISPUTED MATERIAL FACTS
Based on the record and evidence presented, there is no genuine dispute as to any of the
following material facts.
S&H was counsel of record for Defendant Purple Shovel LLC in Homeland Munitions,
LLC v. Purple Shovel, LLC, No. 2:17-cv-00207-DB (D. Utah). 4 On July 20, 2017, Purple Shovel
obtained a judgment against Homeland Munitions LLC, Birken Startree Holdings Corp., Kilo
Charlie LLC, and LC Defense LLC (collectively, “Judgment Debtors”) in the amount of
$9,986,909.92. 5 The Judgment Debtors are all entities, not natural persons. 6
The judgment was based on a breach-of-contract claim for a commercial debt stemming
from a commercial contract between Purple Shovel and Homeland Munitions, in which contract
Purple Shovel agreed to purchase, and Homeland Munitions agreed to sell, certain weapons and
munitions to fulfill orders for the United States government. 7 The weapons and munitions were
not for any personal, household, or family use. 8
Purple Shovel, acting through Steptoe, retained S&H to collect on the judgment against
the Judgment Debtors. 9 For this purpose, S&H obtained writs of execution on certain property. 10
One of these writs was executed at the Ruesches’ residence on October 5, 2017. 11 The Ruesches
4
S&H’s Motion, supra note 1, ¶ 1, at 3.
5
Id. ¶ 2, at 3.
6
Id. ¶ 3, at 3.
7
Id. ¶¶ 4-5, at 3.
8
Id. ¶ 5, at 3.
9
Id. ¶ 6, at 4.
10
Id. ¶ 7, at 4.
11
Opposition, supra note 1, ¶ 3, at 4.
2
do not have, and have never had, any relationship—familial, business, or otherwise—with the
Judgment Debtors. 12 They also do not owe, and have never owed, any debt to Purple Shovel. 13
Based on the execution of the writ at their home, the Ruesches commenced this action
against S&H, Steptoe, and others. 14
DISCUSSION
Summary judgment is appropriate if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” 15 A dispute is “genuine” if “there is
sufficient evidence on each side so that a rational trier of fact could resolve the issue either
way.” 16 A fact is “material” if “it is essential to the proper disposition of [a] claim.” 17 In ruling on
a motion for summary judgment, the evidence and all reasonable inferences are viewed in the
light most favorable to the nonmoving party. 18
S&H and Steptoe seek summary judgment on the Ruesches’ FDCPA claim. 19 The purpose
of the FDCPA is “to eliminate abusive debt collection practices by debt collectors.” 20 To this end,
the FDCPA prohibits the use of “any false, deceptive, or misleading representation or means in
connection with the collection of any debt”; 21 the use of “unfair or unconscionable means to
12
Id. ¶ 1, at 3.
13
Id. ¶ 2, at 3.
14
S&H’s Motion, supra note 1, ¶ 8, at 4.
15
FED. R. CIV. P. 56(a).
16
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
17
Id.
18
Id.
19
See Second Amended Complaint, at 12, docket no. 89, filed February 4, 2019.
20
15 U.S.C. § 1692(e).
21
Id. § 1692e.
3
collect or attempt to collect any debt”; 22 and any conduct that “harass[es], oppress[es], or
abuse[s] any person in connection with the collection of a debt.” 23 “The term ‘debt’”—as used in
the FDCPA—“means any obligation or alleged obligation of a consumer to pay money arising
out of a transaction in which the money, property, insurance, or services which are the subject of
the transaction are primarily for personal, family, or household purposes, whether or not such
obligation has been reduced to judgment.” 24 “The term ‘consumer’ means any natural person
obligated or allegedly obligated to pay any debt.” 25
S&H and Steptoe contend that the Ruesches’ FDCPA claim fails as a matter of law
because the FDCPA only applies to consumer debts, rather than commercial debts, and it is
undisputed that the debt on which S&H sought to collect was not a consumer debt. 26 In response,
the Ruesches cite to cases from other districts in which plaintiffs were allowed to pursue claims
under the FDCPA because the nature of the underlying debts was unknown. 27 But the cases on
which the Ruesches rely are inapposite, 28 as this is not a case where the nature of the debt on
which S&H sought to collect is unknown. Rather, it is undisputed that the debt on which S&H
sought to collect was a commercial obligation and not a consumer obligation. 29 Indeed, the
Ruesches do not even argue otherwise.
22
Id. § 1692f.
23
Id. § 1692d.
24
Id. § 1692a(5).
25
Id. § 1692a(3).
26
Reply, supra note 1, at 3.
27
Opposition, supra note 1, at 7-12; see, e.g., Davis v. Midland Funding, LLC, 41 F. Supp. 3d 919 (E.D. Cal. 2014);
Collins v. Portfolio Recovery Assocs., LLC, No. 2:12-cv-138, 2013 WL 9805805 (E.D. Tenn. June 7, 2013).
28
See Opposition, supra note 1, at 5-7.
29
See supra notes 7-8 and accompanying text.
4
Because the debt on which S&H sought to collect was a commercial obligation, the
FDCPA does not apply. 30 Accordingly, S&H and Steptoe are entitled to a judgment as a matter of
law on the Ruesches’ FDCPA claim.
ORDER
THEREFORE, IT IS HEREBY ORDERED that S&H’s motion for partial summary
judgment is GRANTED; 31 Steptoe’s motion for partial summary judgment is GRANTED; 32
and the Ruesches’ FDCPA claim is DISMISSED with prejudice. 33
Signed June 24, 2019.
BY THE COURT:
David Nuffer
United States District Judge
30
See Scarola Malone & Zubatov LLP v. McCarthy, Burgess & Wolff, 638 F. App’x 100, 102 (2nd Cir. 2016) (“The
FDCPA does not cover actions arising out of commercial debts.” (internal quotation marks omitted)).
31
Docket no. 72, filed December 21, 2018.
32
Docket no. 77, filed January 3, 2019.
33
Second Amended Complaint, supra note 19, at 12.
5
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