Opinion
Case No. 03-1056-JTM
October 30, 2003
MEMORANDUM AND ORDER
Three motions are before the court in this Fair Debt Collections Practices Act (FDCPA). First, defendant Clinton Woerth has filed for summary judgment. Second, plaintiff Jeffrey Scott Ubben has filed a motion for partial summary judgment, seeking a determination of liability on the part of the defendants (leaving the issue of damages for trial). Finally, all defendants have filed a joint motion to dismiss the action with prejudice for failure to comply with Fed.R.Civ.Pr. 26.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiffs claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Plaintiff Ubben's motion for summary judgment will be denied in light of the fact questions remaining in the case. It is uncontroverted that defendants are debt collectors within the meaning of the FDCPA, and that Kramer Frank did not validate the debt before suing Ubben. Woerth signed the state court petition, and appeared on behalf of Kramer Frank in connection with that litigation. However, Woerth by affidavit specifically denies receiving the letter notice of dispute and demand for validation sent by Ubben. There is no evidence submitted by Ubben which would compel the conclusion that Woerth did in fact know of Ubben's letter. Further, defendants aver that they have policies in place to reasonably prevent the kind of error asserted here by Ubben.
Summary judgment on behalf of Ubben against Woerth is not appropriate because there is no showing that Woerth knew of Ubben's request prior to the petition. See Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 1197, 1202-03 (9th Cir. 1999). Further, even assuming that Woerth knew of Ubben's letter, the allegations raised by plaintiff simply fail to meet the standards for intentional infliction of emotional distress under Kansas law. SeeMai v. Williams Indus., 899 F. Supp. 536, 540-42 (D. Kan. 1995). See generally Moore v. State Bank of Burden, 240 Kan. 382, 729 P.2d 1205 (1986) (discussing elements of such a claim). Finally, Ubben's motion is denied because the uncontroverted facts do not preclude the application of the statutory defense provided by 15 U.S.C. § 1692k(c).
In contrast, summary judgment is appropriate on behalf of defendant Woerth. Ubben controverts none of the facts set forth in Woerths motion. Those facts establish that Woerth is an attorney practicing with the firm of Kramer Frank, P.C., at its office in Kansas City, Missouri.
The plaintiff states that he sent a letter to "the debt collector" demanding verification of a debt. He addressed his letter only to Kramer Frank. Woerth never saw, and was not aware of the existence of Ubben's letter before Ubben filed his petition. Woerth had already taken all of the actions about which Ubben complains before he ever saw Ubben's request for verification. It is Woerth's practice to cease all collection activity, including activity in pending lawsuits, to first respond to a timely request for verification, and only then to resume such activity.
Additionally, there is evidence that Woerth reviewed the contents of Kramer Frank's file both before signing the state-court petition and when he attended the state-court trial setting on January 27, 2003. Ubben's letter was not in the file at either time.
Here, because Ubben requested validation of the debt from Woerth after Woerth's obligation to provide it expired, Ubben has failed to demonstrate the sort of outrageous conduct necessary to recover on his claim of intentional infliction of emotional distress. As noted earlier, even assuming Woerth had notice of Ubben's letter, the conduct here does not rise to the level of outrageous conduct described in Moore v. State Bank of Burden, 240 Kan. 382, 388, 729 P.2d 1205, 1211 N.D.N.Y (1986).
In addition, more than thirty days passed between Woerth's first communication with Ubben, and Ubben giving Woerth the written request. Accordingly, Woerth did not have a duty to verify the debt under the FDCPA. See Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 1197, 1202-03 (9th Cir. 1999). Woerth is not responsible for the notice given to his principal only. See Pettit v. Retrieval Masters Creditors Bureau, 211 F.3d 1057, 1058 (7th Cir. 2000); Jones v. Weiss, Neuren Neuren, 95 F. Supp.2d 105, 108-09 (2000).
Finally, the uncontroverted facts support application of the FDCPA bonafide error defense, 15 U.S.C. § 1692k(c). A debt collector is entitled to this defense if it has procedures which are reasonably designed to prevent the kind of violation at issue, even though the procedures may have failed to prevent a specific violation. The defendants here have provided evidence of just such policies. See Woerth Aff. ¶¶ 5-6; KozenyAff. ¶¶ 2-3.
In addition to the foregoing, the defendants have jointly moved for dismissal with prejudice. Defendants' motion states that Ubben has repeatedly refused to comply with disclosure requirements, whether imposed by Fed.R.Civ.Pr. 26 or by order of this court. According to the defendants, Ubben failed to meet the original deadline (May 30, 2003) for disclosures set by the court's Initial Order Regarding Planning Scheduling. (Dkt. No. 9). The court granted Ubben's motion for an extension of time until June 27, 2003 to make the required disclosures. (Dkt. No. 13). According to defendants' exhibits attached to their motion, they have repeatedly attempted to write to plaintiff to arrange for the scheduled planning conference. According to defendants, plaintiff Ubben never responded to these attempts to communicate. On July 15, the court entered a Scheduling Order creating a new, third deadline for the plaintiffs disclosures: July 30, 2003. (Dkt. No. 17).
According to defendants, plaintiff has not made the required disclosures. On August, 25, 2003, the defendants filed their joint motion for dismissal. Plaintiff has not responded to the joint motion within the time permitted by rule, or at any subsequent time. Plaintiff has not submitted any statement to the court that the required disclosures have been made. Defendants' joint motion is granted both for good cause shown, and independently pursuant to D.Kan. Rule 7.4.
IT IS ACCORDINGLY ORDERED this 30th day of October, 2003, that the plaintiffs Motion for Partial Summary Judgment (Dkt. No. 7) is hereby denied, defendant Woerth's Motion for Summary Judgment (Dkt. No. 4) is granted, defendants' Joint Motion to Dismiss (Dkt. No. 19) is hereby granted.