-DTB Richard Bryan Clymer v. Discover Bank et al, No. 5:2010cv01526 - Document 58 (C.D. Cal. 2011)
Court Description: ORDER GRANTING DEFENDANT BLEIER & COX'S MOTION FOR SUMMARY JUDGMENT by Judge Virginia A. Phillips re: 34 Motion for Summary Judgment. For the foregoing reasons, the Court GRANTS Defendant Bleier's Motion and DISMISSES Plaintiff's first, second, third, fourth, and ninth claims, with prejudice. (See document for specifics) (mrgo)
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-DTB Richard Bryan Clymer v. Discover Bank et al Doc. 58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICHARD BRYAN CLYMER, 12 13 14 15 16 ) ) Plaintiff, ) ) v. ) ) DISCOVER BANK; BLEIER & ) COX; AND DOES 1 THROUGH ) 5, INCLUSIVE, ) ) Defendants. ) ________________________ ) Case No. EDCV 10-01526 VAP(DTBx) [Motion filed on May 17, 2011] ORDER GRANTING DEFENDANT BLEIER & COX'S MOTION FOR SUMMARY JUDGMENT 17 18 19 The Court has considered the papers filed in support 20 of, and in opposition to, Defendant Bleier & Cox's 21 ("Bleier") motion for summary judgment ("Motion"). 22 No. 34.) (Doc. For the reasons set forth below, the Court 23 GRANTS the Motion. 24 25 26 I. PROCEDURAL BACKGROUND Plaintiff Richard Bryan Clymer ("Plaintiff"), 27 appearing pro se, filed a complaint on October 5, 2010, 28 against Defendant Discover Bank ("Discover"), asserting Dockets.Justia.com 1 claims for securities fraud and civil conspiracy. 2 No. 1.) (Doc. On February 5, 2011, Plaintiff filed a first 3 amended and supplemental complaint ("FAC"), adding 4 Defendant Bleier, striking the securities fraud and civil 5 conspiracy claims, and asserting claims for violations of 6 the Federal Fair Debt Collection Practices Act ("FDCPA"), 7 15 U.S.C. § 1692(g), and the Fair Credit Reporting Act 8 ("FCRA"), 15 U.S.C. §§ 1681b, 1681o, 1681s-2, 1681i. 9 10 On March 17, 2011, Defendant Discover filed a motion 11 to dismiss (Doc. No. 18), which the Court granted in part 12 and denied in part (Doc. No. 36). Specifically, the 13 Court dismissed Plaintiff's fifth and ninth claims for 14 violations of the FDCPA with prejudice and Plaintiff's 15 sixth and eighth claims for violations of the FCRA with 16 prejudice. (Id.) 17 18 On May 17, 2011, Defendant Bleier filed the Motion, a 19 memorandum of points and authorities (Def.'s Mem. P. & 20 A.), the declaration of Edgar N. De Vera ("De Vera 21 Decl."), and the declaration of Richard Golden ("Golden 22 Decl.") with exhibits A and B attached. (Doc. No. 34.) 23 On June 8, 2011, the Court provided Plaintiff with a 24 notice regarding summary judgment procedures and 25 rescheduling the hearing on the Motion and the relevant 26 deadlines. (Doc. No. 37.) On June 8, 2011, Defendants 27 filed a separate statement of uncontroverted facts and 28 2 1 conclusions of law ("SUF"). (Doc. No. 38.) On June 9, 2 2011, Plaintiff filed an opposition ("Opposition"). 3 (Doc. No. 43.) On June 14, 2011, Defendant Bleier filed 4 a notice of errata related to the Golden Declaration. 5 (Doc. No. 44 ("Golden Decl. II").) On June 27, 2011, 6 Defendant filed a reply ("Reply") (Doc. No. 49) and 7 "Objections to Plaintiff's Evidence" (Doc. No. 50 8 ("Def.'s Obj.")). On July 1, 2011, Plaintiff filed an 9 opposition to Defendant's SUF ("Pl.'s Obj.") (Doc. No. 10 54), the affidavit of Bryan Clymer ("Clymer Decl.") (Doc. 11 No. 55), and a statement of genuine disputes ("SGI") 12 (Doc. No. 56). 13 14 15 II. FACTUAL BACKGROUND Both sides cite facts that are not relevant to 16 resolution of the Motion. To the extent certain facts 17 are not mentioned in this Order, the Court has not relied 18 on them in reaching its decision. Furthermore, except as 19 described below, the Court overrules the parties' 20 objections, but has independently considered the 21 admissibility of the evidence underlying the SUF and the 22 SMF, and has not considered facts that are irrelevant or 23 based upon inadmissible evidence. Finally, certain 24 proposed facts are not adequately supported by the cited 25 evidence; as to those proposed facts, the Court has 26 considered and relied on the underlying evidence and 27 28 3 1 found facts supported by that evidence, to the extent the 2 evidence itself was admissible. 3 4 The Court finds the following material facts are 5 supported adequately by admissible evidence and are 6 uncontroverted. They are "admitted to exist without 7 controversy" for the purposes of these Motions. L.R. 56- 8 3; see generally Fed. R. Civ. P. 56. 9 10 Defendant Bleier attempted to collect a debt from 11 Plaintiff related to a credit card with Defendant 12 Discover. (SUF 1, 12; FAC ¶ 6.) On March 3, 2009, 13 Plaintiff sent a letter to Defendant Discover disputing 14 the debt. (Id.) Defendant Bleier contends it never 15 received Plaintiff's March 3, 2009, dispute letter; 16 Plaintiff alleges that Bleier received the letter when 17 Discover provided Bleier with Plaintiff's file. 18 Plaintiff does not have personal knowledge of what Bleier 19 did or did not receive in the file from Discover, 20 however, and offers no evidence to support his naked 21 contention that Bleier received his dispute letter. 22 Plaintiff accordingly has not raised a genuine issue that 23 Bleier received or otherwise had knowledge of his dispute 24 letter. 25 26 27 28 4 1 Plaintiff further contends that Defendant Bleier 2 continued to attempt to collect the debt from him, 3 including sending collection letters to Plaintiff on 4 March 25, 2009, and April 30, 2009. Plaintiff offers no 5 admissible evidence to support this assertion nor does he 6 attach the alleged letters from Bleier. On the other 7 hand, Bleier presents evidence, in the form of a sworn 8 declaration, that it did not send the collection letters. 9 Specifically, Defendant Bleier presents evidence that it 10 was assigned Plaintiff's debt on July 9, 2009,1 several 11 months after Plaintiff received the letters. (See SUF 9; 12 Golden Decl. II ¶ 2.) 13 14 Finally, Defendant Bleier made a formal inquiry on 15 Plaintiff's credit report in September 2009. 16 ¶¶ 7-10.) (SUF 5; FAC Plaintiff argues Bleier did not have 17 Plaintiff's consent to do so, nor a permissible purpose 18 under the FCRA. 19 20 III. LEGAL STANDARD 21 A court shall grant a motion for summary judgment 22 when there is no genuine issue as to any material fact 23 and the moving party is entitled to judgment as a matter 24 of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty 25 26 1 Plaintiff attaches a copy of his credit report to the Opposition. Plaintiff has not authenticated the 27 document properly, however, and the Court accordingly has 28 not considered it. 5 1 Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving 2 party must show that "under the governing law, there can 3 be but one reasonable conclusion as to the verdict." 4 Anderson, 477 U.S. at 250. 5 6 Generally, the burden is on the moving party to 7 demonstrate that it is entitled to summary judgment. 8 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998) 9 (citing Anderson, 477 U.S. at 256-57); Retail Clerks 10 Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 11 1033 (9th Cir. 1983). The moving party bears the initial 12 burden of identifying the elements of the claim or 13 defense and evidence that it believes demonstrates the 14 absence of an issue of material fact. Celotex Corp. v. 15 Catrett, 477 U.S. 317, 323 (1986). 16 17 Where the non-moving party has the burden at trial, 18 however, the moving party need not produce evidence 19 negating or disproving every essential element of the 20 non-moving party's case. Celotex, 477 U.S. at 325. 21 Instead, the moving party's burden is met by pointing out 22 that there is an absence of evidence supporting the non23 moving party's case. Id.; Horphang Research Ltd. v. 24 Garcia, 475 F.3d 102, 25 26 27 28 6 1 The burden then shifts to the non-moving party to 2 show that there is a genuine issue of material fact that 3 must be resolved at trial. Fed. R. Civ. P. 56(c); 4 Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The 5 non-moving party must make an affirmative showing on all 6 matters placed in issue by the motion as to which it has 7 the burden of proof at trial. 8 Anderson, 477 U.S. at 252. Celotex, 477 U.S. at 322; See also William W. 9 Schwarzer, A. Wallace Tashima & James M. Wagstaffe, 10 Federal Civil Procedure Before Trial § 14:144. A genuine 11 issue of material fact will exist "if the evidence is 12 such that a reasonable jury could return a verdict for 13 the non-moving party." Anderson, 477 U.S. at 248. 14 15 In ruling on a motion for summary judgment, a court 16 construes the evidence in the light most favorable to the 17 non-moving party. Scott v. Harris, 550 U.S. 372, 378, 18 380 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th 19 Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. 20 Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). 21 22 23 IV. DISCUSSION Plaintiff brings the following claims against 24 Defendant Bleier: (1) violation of the FDCPA, 15 U.S.C. 25 § 1692(g); and (2) violations of the FCRA, 15 U.S.C. §§ 26 1681(b), 1681(o). 27 28 7 1 A. FDCPA Claims (Plaintiff's First, Fourth, and Ninth 2 Claims) 3 Plaintiff alleges three claims against Bleier for 4 violations of the FDCPA. The applicable statute of 5 limitations under the FDCPA is one year: "An action to 6 enforce any liability created by this title may be 7 brought in any appropriate United States district court 8 without regard to the amount in controversy, or in any 9 other court of competent jurisdiction, within one year 10 from the date on which the violation occurs." 11 § 1692k(d) (emphasis added). 15 U.S.C. As noted above, Plaintiff 12 bases his FDCPA claims on two letters Bleier allegedly 13 sent on March 25, 2009, and April 30, 2009, but offers no 14 evidence that Bleier sent these letters. Plaintiff 15 attaches as exhibits to his declaration two letters from 16 another law firm, Zwickler & Associates, P.C. 17 Decl., Ex. 1.) (Clymer Plaintiff presents no evidence that 18 Bleier was the law firm that sent him letters containing 19 the alleged violations. Moreover, even assuming Bleier 20 sent the letters, under the applicable statute of 21 limitations, Plaintiff was required to file his FDCPA 22 claims by April 30, 2010. Plaintiff filed this action on 23 October 5, 2010, well after the expiration of the one24 year limitations period. 25 26 27 28 8 1 Plaintiff contends he did not discover the violations 2 until February 2010. (Opp'n at 2.) 3 belied by the evidence, however. This argument is Specifically, Plaintiff 4 states Defendant Bleier sent the letters on March 25, 5 2009, and April 30, 2009. By Plaintiff's own account, he 6 therefore became aware of the alleged violations at that 7 time. Thus, Plaintiff's FDCPA claims are barred by the 8 statute of limitations. The Court accordingly GRANTS 9 Defendant Bleier's Motion as to Plaintiff's First, 10 Fourth, and Ninth Claims, with prejudice. 11 12 B. FCRA Claims (Plaintiff's Second and Third Claims) 13 Plaintiff bases his claim that Bleier violated the 14 FCRA on his allegation that Bleier obtained Plaintiff's 15 credit report from a consumer reporting agency without a 16 "permissible purpose." (See Opp'n at 2.) 17 18 The FCRA creates a private right of action through a 19 provision that provides: 20 21 22 Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of– 23 24 25 26 27 (1) (A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or (B) in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustained 28 9 1 2 3 4 5 by the consumer as a result of the failure or $1,000, whichever is greater; (2) such amount of punitive damages as the court may allow; and (3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court. 15 U.S.C. § 1681n; see also § 1681o (providing civil 6 liability for negligent noncompliance, but only for 7 consumers' actual damages); Nelson v. Chase Manhattan 8 Mortg. Corp., 282 F.3d 1057, 1059 (9th Cir. 2002) 9 ("[W]ith these words Congress created a private right of 10 action for consumers"). 11 12 Although a party may not "obtain a consumer report" 13 unless it is "obtained for a purpose" authorized by FCRA, 14 see 15 U.S.C. § 1681b(f), Plaintiff's conclusory 15 allegation that Bleier lacked a "permissible purpose" 16 (see Opp'n at 2) is insufficient to create a genuine 17 issue of fact. The FCRA expressly permits receipt of a 18 consumer report for use "in connection with a credit 19 transaction involving the consumer on whom the 20 information is to be furnished and involving the . . . 21 collection of an account of [ ] the consumer." 22 U.S.C. § 1681b(a)(3)(A). See 15 Here, Bleier has presented 23 evidence it was attempting to collect what it believed to 24 be a valid credit card debt. (Golden Decl. ¶ 2.) 25 Plaintiff has presented no evidence that Bleier was aware 26 of Plaintiff's dispute letter or that Bleier obtained 27 Plaintiff's credit report for any other purpose than to 28 10 1 collect a debt it had been assigned. The Court 2 accordingly GRANTS Defendant Bleier's Motion as to 3 Plaintiff's second and third claims, with prejudice. 4 5 6 V. CONCLUSION For the foregoing reasons, the Court GRANTS Defendant 7 Bleier's Motion and DISMISSES Plaintiff's first, second, 8 third, fourth, and ninth claims, with prejudice. 9 10 11 12 Dated: 13 July 29, 2011 VIRGINIA A. PHILLIPS United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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