Batiste v. National Information Services et al, No. 2:2008cv00378 - Document 37 (E.D. Cal. 2009)
Court Description: ORDER granting 25 Motion for Summary Judgment signed by Judge Garland E. Burrell, Jr on 8/20/09: Plaintiff's state law claims are dismissed without prejudice. (Kaminski, H)
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Batiste v. National Information Services et al Doc. 37 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SANDRA BATISTE, 12 Plaintiff, 13 14 v. AMERICAN GENERAL FINANCE, 15 Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) 2:08-cv-00378-GEB-EFB ORDER* Defendant American General Finance (“AGF”) moves for summary 18 judgment on all of Plaintiff’s claims. 19 claim under the Fair Debt Collection Practices Act (“FDCPA”) which 20 confers federal question jurisdiction, and alleges numerous state 21 claims over which supplemental jurisdiction is exercised under 28 22 U.S.C. § 1367. 23 be granted on the federal claim and the court declines to continue 24 exercising supplemental jurisdiction over Plaintiff’s state claims. 25 /// 26 /// Plaintiff alleges a federal For the reasons stated below, Defendant’s motion will 27 28 * This matter was determined to be suitable for decision without oral argument. E.D. Cal. R. 78-230(h). 1 Dockets.Justia.com 1 DISCUSSION 2 Plaintiff alleges in her complaint that Defendant is exposed 3 to liability under the FDCPA as a debt collector since Defendant “in 4 the ordinary course of business, regularly, on behalf of [itself] or 5 others, engages in debt collection.” (Compl. ¶¶ 3, 15.) 6 Defendant shows in its motion that it is a creditor and therefore not 7 liable under the FDCPA as Plaintiff alleges. 8 9 However, (Def’s Mot. 2:6-8.) To be held liable under the FDCPA, a defendant must fall within the FDCPA’s definition of "debt collector." 15 U.S.C. § 1692k; 10 Heintz v. Jenkins, 514 U.S. 291, 294 (1995) (stating that the FDCPA 11 “prohibits ‘debt collector[s]’ from making false or misleading 12 representations and from engaging in various abusive and unfair 13 practices.” (citing 15 U.S.C. § 1692-1692o)); see also, Romine v. 14 Diversified Collection Servs., 155 F.3d 1142, 1146 (9th Cir. 15 1998)(discussing the definition of “debt collectors” under the 16 FDCPA).Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1031 (9th Cir. 17 2009)(stating that a “‘creditor’ is not a ‘debt collector’ under the 18 FDCPA” and thus not liable under this statute) (internal citations 19 omitted); Oei v. N. Star Capital Acquisitions, LLC, 486 F.Supp. 2d 20 1089, 1097 (C.D. Cal. 2006) (finding the “‘distinction between 21 creditors and debt collectors is fundamental to the FDCPA,’ because 22 the Act ‘does not regulate creditors' activities at all;’” a debt 23 collector regularly collects debts on behalf of others, not its own 24 debt)(citing Randolph v. IMBS, Inc., 368 F.3d 726, 729 (7th Cir. 25 2004)). 26 unfair debt collection practices”. 27 28 The FDCPA was enacted to combat “abusive, deceptive, and 15 U.S.C. §1692(a)-(e). A debt collector is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business 2 1 the principal purpose of which is the collection of any debts,” or 2 alternatively, a person “who regularly collects or attempts to 3 collect, directly or indirectly, debts owed or due or asserted to be 4 owed or due another.” 5 collectors” specifically “does not include any officer or employee of 6 a creditor while, in the name of the creditor, collecting debts for 7 such creditor.” 8 "any person who offers or extends credit creating a debt or to whom a 9 debt is owed . . . .” 15 U.S.C. § 1692a(6). The term “debt Id. § 1692a(6)(A) (emphasis added). Id. § 1692a(4). A creditor is One exception exists for 10 creditors, however, who may be held liable as “debt collectors” if 11 “in the process of collecting [their] own debts, [they] us[e] any name 12 other than [their] own which would indicate that a third person is 13 collecting or attempting to collect such debts.” 14 Id. § 1692a(6). Defendant provides a Declaration from Lisa Wagner (a 15 district manager for Defendant) in support of its position that it is 16 not a debt collector, in which Wagner avers that “at all times AGF has 17 been, and is, the lender, secured party, and owner of the [loan 18 between Plaintiff and Defendant].” 19 Statement of Undisputed Facts (“SUF”) ¶ 6; Wagner Decl. ¶ 8.) 20 Defendant argues “AGF’s principal business is not debt collection” and 21 supports this position with a portion of Wagner’s declaration, in 22 which she declares: “during the course of my 32 years of my 23 employment, AGF has been a major issuer of consumer loans in the 24 United States . . . AGF’s principal business is not debt collection, 25 although when it becomes necessary, AGF does attempt to collect its 26 overdue debts.” 27 (Def’s Mot. 5: 15-17; Def’s (Def’s SUF ¶ 14; Wagner Decl. ¶ 5.) Plaintiff does not dispute Defendant’s position that it “has 28 3 1 been, and is, the lender, secured party, owner and creditor” of the 2 loan between Plaintiff and Defendant. 3 counters, however, that “AGF in its regular course of business, sends 4 employees out on field calls to visit client’s houses and collect 5 debts owed,” and therefore falls under the definition of “debt 6 collector” as prescribed in the FDCPA, even if Defendant is also a 7 “creditor.” 8 deposition testimony as support for this position: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (Pl.’s SDF ¶ 20.) (Pl.’s SUF ¶ 6.) Plaintiff Plaintiff relies on Wagner’s following Q Okay, that was probably a bad question. Beside the phone number – besides the phone calls, besides the additional letter that are being sent out, are there any other means in which the –- American General takes to try to bring the account current? A Yes, there are. Q Okay. And what are those? A Actual visits to the home. Q Okay. And is there a standard policy as to the frequency of those visits? A No, there’s not. Q Is there any guidance as to how those, the frequency of those visits would be determined? A No. Q Who makes the decision generally on if and when a visit to the home should take place? A The branch manager. Q. It’s up to him or her, the branch manager, to send someone out or not? A In most cases. Q. Okay. And the visits to the home, I know you guys probably do a lot of auto loans, are those visits handled in-house, meaning is an employee from American General sent out there, or is that sent to a third party? A. An employee from American General does the field call to the home. [. . .] Q. Okay. And the purpose of the field call is what? A. To make contact with the customer to work out payment solutions. Q In person? A Yes. 25 (Wagner Depo. on March 26, 2008 27:17 - 29:3.) This 26 deposition testimony, however, fails to support Plaintiff’s position 27 that Defendant is a “debt collector,” because by definition, “debt 28 4 1 collectors” collect the debt of others, not their own debts. 2 Under the FDCPA, the only instance in which a creditor 3 may be liable as a “debt collector” is when a creditor uses names 4 other than its own, such as third-party names, to collect its own 5 debts. 6 evidence has surfaced that would support Plaintiff’s original belief 7 that Defendant AGF was representing itself as Defendant NIS, [a 8 Defendant no longer party to this suit,] Plaintiff cannot, in good 9 faith, put forth a legal argument any longer that AGF was falsely 15 U.S.C. § 1692a(6). Plaintiff concedes that “because no 10 purporting to be a third party debt collector, that is, NIS, and 11 withdraws any such argument.” 12 (Pl.’s Opp’n at 12: 19-23.) Since Plaintiff has not controverted Defendant’s showing 13 that it not exposed to liability under the FDCPA, Defendant’s summary 14 judgment motion on this claim is granted. 15 When the basis for federal question jurisdiction no longer 16 exists, the Court has discretion to decide whether supplemental 17 jurisdiction should continue being exercised over pending state 18 claims. 19 decline to exercise supplemental jurisdiction over a claim” if the 20 “court has dismissed all claims over which it has original 21 jurisdiction . . . .” 22 based on considerations of judicial “economy, convenience, fairness, 23 and comity.” 24 Cir. 1991). 25 claims is not adverse to the interest of judicial economy since those 26 claims have not yet been analyzed in this case. 27 factor weighs decisively in favor of dismissal since “[n]eedless 28 decisions of state law should be avoided as a matter of comity.” Under 28 U.S.C. § 1367(c)(3), the district court “may The exercise of this dismissal discretion is Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th The Court finds that litigation of Plaintiff’s state law 5 Further the comity 1 Hoeck v. City of Portland, 57 F.3d 781, 785 (9th Cir. 1995) (internal 2 citation omitted); 3 F.2d 504, 509 (9th Cir. 1989)(stating when federal claims are 4 eliminated before trial, district courts should ordinarily decline to 5 exercise supplemental jurisdiction). 6 claims are dismissed without prejudice. 7 Dated: Les Shockley Racing v. National Hod Rod Ass'n, 884 Therefore, Plaintiff’s state law August 20, 2009 8 9 10 GARLAND E. BURRELL, JR. United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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