Nasman, Jason v. Chase Home Finance, LLC et al
Filing
65
ORDER denying plaintiff's 55 motion to alter or amend judgment, denying defendants Gray & Associates LLP, Steven Zablocki, Michael Riley, Brian Quirk, Robert Piette's informal request for attorneys fees filed by Jason A. Nasman. Signed by District Judge William M. Conley on 9/16/2013. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JASON A. NASMAN,
Plaintiff,
OPINION AND ORDER
v.
11-cv-614-wmc
CHASE HOME FINANCE LLC,
GRAY & ASSOCIATES, LLP,
STEVEN E. ZABLOCKI,
MICHAEL M. RILEY,
BRIAN QUIRK & ROBERT M. PIETTE,
Defendants.
On January 24, 2013, this court: (1) partially granted a motion to dismiss filed by
defendants Gray & Associates, LLP, Zablocki, Riley, Quirk and Piette (“the Gray
defendants”); (2) denied plaintiff Jason Nasman’s motion for summary judgment; (3) sua
sponte granted summary judgment in favor of all defendants; and (4) entered final
judgment. Plaintiff now moves for reconsideration of the judgment under Federal Rule
of Civil Procedure 59(e), asserting that the court’s sua sponte grant of summary judgment
to defendants was premature, both as a procedural matter and because it did not allow
him a full and fair opportunity to present his case. Much of plaintiff’s motion can be
characterized as frivolous and all of it will be denied, but so will defendants’ informal
request for sanctions against plaintiff’s counsel for filing the motion.
OPINION1
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The court assumes familiarity with the procedural history of this case, and will not
completely restate it in this short opinion.
“Altering or amending a judgment under 59(e) is permissible when there is newly
discovered evidence or there has been a manifest error of law or fact.” Harrington v. City
of Chi., 433 F.3d 542, 546 (7th Cir. 2006). Tracking this standard, plaintiff’s motion for
reconsideration argues that the court manifestly erred in two respects: (1) it was
procedurally barred from granting summary judgment to either side before the Gray
defendants filed their answer; and (2) in sua sponte granting summary judgment for
defendants, the court failed to give plaintiff a full and fair opportunity to contest the
grounds for judgment.
A. Grant of Summary Judgment Before Defendants’ Answer
On October 25, 2011, the Gray defendants filed a motion to dismiss plaintiff’s
claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, tolling their deadline
to answer the complaint until the court ruled on their motion. Fed. R. Civ. P. 12(a)(4).
While this motion was pending, and notwithstanding the lack of an answer from
defendants, plaintiff filed a motion for summary judgment. The court eventually decided
the dismissal and summary judgment motions on the same day, thus granting summary
judgment in favor of all defendants before the Gray defendants had answered, which
plaintiff now contends was error.
In support, plaintiff cites to People’s Bank v. Fed. Reserve Bank of S.F., 58 F. Supp.
25 (N.D. Cal. 1944), which states that a party “may move for summary judgment in his
favor only after a pleading responsive to the complaint has been filed.” Id. at 27. That
legal principle does not directly pertain here because the court granted summary
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judgment on its own motion. Even assuming that principle applies to summary judgments
across the board, plaintiff himself was the first to ignore the requirement of an answer by
moving for and fully briefing his claimed entitlement to summary judgment.
Thus,
Nasman has not only waived any objection to summary judgment being premature, but
already been given a full opportunity to present conflicting facts and law. Finally, even if
the court were to allow plaintiff to stand on formality, reopening the case would appear
to be a pointless exercise, since Nasman has still submitted no evidence or argument that
cause the court to reconsider its grant of summary judgment.
B. Full and Fair Opportunity to Contest
While Federal Rule of Civil Procedure 56(f) allows summary judgment for a
nonmovant after notice and a reasonable time to respond, district courts have the
authority to enter summary judgment “so long as the losing party was on notice that she
had to come forward with all her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326
(1986).
The court’s original opinion explained summary judgment was being granted in
favor of defendants without giving plaintiff yet another opportunity to comment since it
was ruling on the very question raised by plaintiff’s own motion for summary judgment,
which was obviously a question that plaintiff had every opportunity and motivation to
fully argue.
Indeed, in his affirmative motion for summary judgment plaintiff put
forward all relevant evidence on the question, and he succeeded in convincing the court
that no material issues of fact remained. He lost at summary judgment only because he
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failed to persuade the court to adopt his position with respect to the central legal question
addressed (albeit unconvincingly) in his summary judgment brief.
Plaintiff nevertheless argues that he would have adduced more facts for the court’s
consideration if he’d been given the chance -- namely, defendants’ “failure to disclose the
identity of the [current] creditor.”
Plaintiff overlooks, however, that this additional
evidence would not have been relevant to any claim properly before the court at
summary judgment.
In its decision on defendants’ motion to dismiss (which plaintiff does not contest),
the court allowed two claims to move forward to summary judgment: a claim under 15
U.S.C. § 1692g(a)(4-5) and a claim under 15 U.S.C. § 1692g(b).
None of these
statutory sections require defendants to state the identity of the current creditor -- that
requirement is found in § 1692g(a)(2), which pertains to the initial notice of debt, not
the verification letter. Plaintiff argues that like subsection (a)(2), subsection g(b) also
requires identification of the current creditor, but this is belied by the plain language of
that subsection, which only requires defendants to identify the “original creditor” (in this
case the two were different).2
In sum, the only way plaintiff’s newfound evidence would have been relevant at
summary judgment is if plaintiff had obtained permission to amend his complaint to add
a claim under § 1692g(a)(2). It is very unlikely the court would have granted permission
2
For the proposition that § 1692g(b) requires naming the current creditor, plaintiff
relies on out-of-context quotes from two cases cited in this court’s summary judgment
decision. Both decisions actually undermine, rather than support, plaintiff’s argument.
See, e.g., Poulin v. The Thomas Agency, 760 F. Supp. 2d 151, 160 (D. Me. 2011) (“[T]he
Court agrees with Defendant that it complied with FDCPA’s verification requirement by
providing Plaintiff with the identity of the original creditor . . . .” (emphasis added)).
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for any such request, as it would have been untimely, and at any rate no permission had
or has actually been granted. Thus, all of this additional evidence, which plaintiff claims
he would have adduced for the court’s consideration if he had not been blindsided by the
“premature” summary judgment decision, would not have produced any different
analysis or result on summary judgment.
This means that plaintiff’s motion for
reconsideration must be denied.
C. Request for Fees
Finally, defendants have asked the court for an award of attorneys’ fees against
plaintiff’s counsel for filing a frivolous motion.
28 U.S.C. § 1927 states that “[a]ny
attorney or other person. . . who so multiplies the proceedings in any case unreasonably
and vexatiously may be required by the court to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such conduct.” The purpose
of this statute is “to deter frivolous litigation and abusive practices by attorneys and to
ensure that those who create unnecessary costs also bear them.” Kapco Mfg. Co., Inc. v. C
& O Enter’s, Inc., 886 F.2d 1485, 1491 (7th Cir. 1989) (internal citation omitted). A
court may impose sanctions under this code provision when an attorney has acted in an
“objectively unreasonable manner” by engaging in “serious and studied disregard for the
orderly process of justice.” Pac. Dunlop Holdings, Inc. v. Barosh, 22 F.3d 113, 119 (7th
Cir. 1994).
The court nevertheless declines to sanction plaintiff’s counsel. Plaintiff’s objection
that the court overlooked the Gray defendants’ failure to answer before granting
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summary judgment appears to be legally correct, or at least colorable, so a portion of the
motion to reconsider was well-founded.
Although the remainder of the motion is
frivolous, the court quickly recognized this, and told defendants that “a responsive brief
is not required.” (Dkt. #57.)
The court can hardly fault defendants for taking the
precautionary step of filing responsive briefs anyway, but this does weigh against shifting
the costs of those briefs to plaintiff’s counsel. This case has already gone on far longer
than its merits deserve, and it will not prolong the matter any further with a potential
dispute over sanctions.
ORDER
IT IS ORDERED that:
1) Plaintiff Jason A. Nasman’s motion to alter or amend the judgment (dkt. #55)
is DENIED; and
2) Defendants Gray & Associates LLP, Steven Zablocki, Michael Riley, Brian
Quirk, Robert Piette’s informal request for attorneys fees is also DENIED.
Entered this 16th day of September, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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