Oatman v. Augusta Collection Agency, Inc., No. 1:2018cv00089 - Document 22 (S.D. Ga. 2020)

Court Description: ORDER granting in part and denying in part Defendant's 20 Motion for Reconsideration. Summary Judgment is appropriate on Plaintiff's Section 1692c and 1692e claims. The case shall proceed to trial in due course on Plaintiff's remaining claim. Signed by Chief Judge J. Randal Hall on 04/20/2020. (jlh)

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Oatman v. Augusta Collection Agency, Inc. Doc. 22 Case 1:18-cv-00089-JRH-BKE Document 22 Filed 04/20/20 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION JUNIOR OATMAN, * * Plaintiff, * * V. * CV 118-089 AUGUSTA COLLECTION AGENCY, * INC., * * Defendant. ORDER Before the Court is Defendant Inc.'s motion for reconsideration. Augusta Collection (Doc. 20.) Agency, Defendant makes three arguments for reconsideration of the Court's December 12, 2019 Order granting in part and denying in part Defendant's motion for summary judgment. Plaintiff Junior Oatman responded to the motion, and it is ripe for decision. For the following reasons. Defendant's motion is granted in part and denied in part. I. BACKGROUND This case arises out of a number of alleged violations of the Fair Debt Collection Practices Act C'FDCPA"), 15 U.S.C. §§ 1692 et sag., and the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §§ 227 et seg. 1692c, 1692d, Plaintiff alleges that Defendant violated Sections and 1692e of the FDCPA as well as Section Dockets.Justia.com Case 1:18-cv-00089-JRH-BKE Document 22 Filed 04/20/20 Page 2 of 8 227(b)(1)(A)(iii) judgment. of the TCPA. Defendant moved for In its December 12, 2019 Order ("Order") / summary- the Court granted the motion as to Plaintiff's TCPA claims but denied the motion as to the FDCPA claims. (Doc. 18.) Defendant now moves for reconsideration on the FDCPA claims. II. LEGAL STANDARD "In considering a motion for reconsideration, a court must balance the need, for finality and judicial economy against the need to render just decisions." Collins v. Int'1 Longshoremen's Ass'n Local 1423, No 2:09-cv-093, 2013 WL 393096, at *1 (S.D. Ga. Jan. 30, 2013). District courts have the discretion to reconsider interlocutory orders like the one at issue any time before final judgment under Rule 54(b). See Watkins v. Capital City Bank, No. 3:10-cv-087, 2012 WL 4372289, at *4 (S.D. Ga. Sept. 24, 2012); Lambert v. Briggs & Stratton Corp., No. 6:04-cv-016, 2006 WL 156875, at *1 (S.D. Ga. Jan. 19, 2006). Although the text of Rule 54(b) does not specify a standard to be used by courts in exercising authority under the Rule, courts in this Circuit reconsideration intervening evidence; manifest or "have should change (3) in the injustice." taken only the be position granted controlling need to Insured law; correct Deposits that if a there (2) newly clear error Conduit, motion is (1) for an discovered or LLC prevent v. Index Case 1:18-cv-00089-JRH-BKE Document 22 Filed 04/20/20 Page 3 of 8 Powered Fin. Servs. ^ LLC, No. 07-22735, 2008 WL 5691349, at *1-2 (S.D. Fla. Mar. 14, 2008); accord Bryant v. Jones, 696 F. Supp. 2d 1313, 1320 (N.D. Ga. 2010). The movant must set forth facts or law of a strongly convincing nature to induce the Court to reverse its prior decision, for reconsideration is an extraordinary remedy to be employed sparingly. See Voter Verified, Inc. v. Election Sys. & Software, Inc., No. 6:09-CV-1969, 2011 WL 3862450, at *2 (M.D. Fla. Aug. 31, 2011). A motion for reconsideration should not be used to present arguments already heard and dismissed, or to offer new legal theories or evidence that a party could have presented before the original decision. See S.E.C. v. Mannion, No. l:10-CV-3374, 2013 WL 5999657, at *2 (N.D. Ga. Nov. 12, 2013). III. DISCUSSION Defendant makes three arguments in its motion, all relating to the FDCPA claims. First, that the Court relied on inadmissible evidence in denying summary judgment on the Section 1692c claim. Second, that under Section 1692d, Defendant permissibly explained its legal options by telling Plaintiff it may garnish his wages. Third, that Plaintiff did not carry his summary judgment burden for his Section 1692e claim. 1. 15 U.S.C. § 1692c Claim Defendant argues that the Court relied on an inadmissible statement Plaintiff made in his deposition and that the statement Case 1:18-cv-00089-JRH-BKE Document 22 Filed 04/20/20 Page 4 of 8 was an improper basis for denying summary judgment. was: Defendant "call[ed] my employer not only The statement to verify insurance, but to garnish my wages through my paycheck." my (See Oatman Dep., Doc. 12-2, at 95.) Federal Rule of Civil Procedure supported by admissible evidence. 56 requires facts to be Defendant argues that Plaintiff did not have any foundation or personal knowledge of whether Defendant actually called and spoke to Plaintiff's employer and that there is no evidence that would be admissible at trial to prove that Defendant ever contacted Plaintiff's employer.^ However, when interpreting Rule 56 the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) ruled, "We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment." The Eleventh Circuit interpreted this statement as "simply allowing otherwise admissible evidence to be submitted in inadmissible form at the summary judgment stage, though at trial it must be submitted in admissible form." McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996) (emphasis in original); see also Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, ^ Defendant's other arguments about the legal process for wage garnishment are unavailing. Section 1692c asks only whether the debt collector communicated with a third party in connection with the collection of the debt. It does not inquire further into the contents of the communications. See 15 U.S.C. § 1692c(b). Case 1:18-cv-00089-JRH-BKE Document 22 Filed 04/20/20 Page 5 of 8 1015 (11th Cir. 1987) (per curiam) ("The claim by [the summary judgment movant] that the [piece of evidence] is inadmissible hearsay does not undercut the existence of any material facts the [piece of evidence] may put into question."). possibility that unknown witnesses will "However, the mere emerge to provide testimony is insufficient to establish that a hearsay statement could become admissible at trial." Robertson v. Interactive Coll. of Tech./Interactive Learning Sys., Inc., 743 F. App'x 269, 273 (11th Cir. 2018) (citing Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012)). While there are some inconsistencies in how the Celotex rule is applied, all applications would lead to the same result in this case.2 Here, there is no foundation demonstrating that Plaintiff had any personal knowledge of a call from Defendant to his employer regarding his debt as prohibited by Section 1692c. Neither does Plaintiff indicate that he can present that fact in an admissible 2 Sometimes, courts apply the rule to exclude evidence from consideration at summary judgment when an affidavit or deposition (itself potentially inadmissible) contains inadmissible hearsay. See, e.g., Macuba v. Deboer, 193 F.3d 1316, 1324 (11th Cir. 1999) (finding error in consideration of inadmissible hearsay testimony within a deposition). Other courts consider hearsay contained within an affidavit or deposition so long as Plaintiff could present the hearsay evidence in admissible form at trial. See, e.g.. Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1015 (11th Cir. 1987) (considering a letter containing hearsay evidence at summary judgment "because the inadmissibility of the [evidence] does not undercut the existence of any material facts"). Case 1:18-cv-00089-JRH-BKE Document 22 Filed 04/20/20 Page 6 of 8 form.3 Accordingly, summary judgment in favor of Defendant on Plaintiff's Section 1692c claim is proper. 2. 15 U.S.C. § 1692d Claim Defendant next argues that it permissibly explained its legal options to Plaintiff Plaintiff's wages. when it told him that it could garnish This is the same argument Defendant made at the summary judgment stage, and it will not be considered again.^ See Raiford v. Nat'l Hills Exch., LLC, No. CV 111-152, 2014 WL 97359, at *1 (S.D. Ga. Jan. 8, 2014) ("A motion for reconsideration should not be used to present arguments already heard and dismissed . . . ."). 3. 15 U.S.C. § 1692e Claim Finally, Defendant argues that Plaintiff bears the burden of proof on his Section 1692e claim, which he failed to satisfy. The subsection of Section 1692e at issue prohibits debt collectors from making threats of garnishment or other legal action without 3 Plaintiff's response to the motion for reconsideration does not address Defendant's admissibility argument. (See Doc. 21.) ^ Defendant posits that the Court's interpretation of Section 1692d would effectively prohibit a debt collector from advising a debtor of the collector's legal options. Section 1692d does not have that effect. It is intended to stop debt collectors from harassing, oppressing, and abusing debtors, and the determination of whether a debt collector's conduct violates the section is ordinarily one for the jury. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985) (citing legislative history). The Order acknowledged that a threat of legal action is not inherently violative of Section 1692d but could violate it if the threat reflects a "tone of intimidation." Id. Case 1:18-cv-00089-JRH-BKE Document 22 Filed 04/20/20 Page 7 of 8 the intention to take such action. (5). See 15 U.S.C. §§ 1692e(4), [S]ubsection (5) requires proof of a fact which amounts to a per se violation of § 1692e." identified evidence that Jeter, 760 F.2d at 1175. Plaintiff Defendant threatened to take legal action, namely, to sue him and garnish his wages. However, Plaintiff did not identify evidence demonstrating Defendant did not intend to take those actions beyond the fact that it had not filed suit. "[Section] 1692e contains no provision that filing a lawsuit is the only way for a debt collector to establish that it actually had intended to file a lawsuit." V. Ingram & Assocs., 441 F. App'x 712, 719 (11th (affirming grant of summary judgment finding Shuler Cir. 2011) no violation of Section 1592e when evidence of intent was the nonexistence of a lawsuit); compare with Jeter, 760 F.2d at 1176-77 (affirming denial of summary judgment when plaintiff presented evidence that defendant sued on only a small percentage of its debts and that it had not sued plaintiff). Also, Plaintiff has not presented evidence to show that Defendant "secretly never intended to sue or has only sued on rare occasions." Shuler, 551 F. App'x at 719. This means that Plaintiff did not carry his burden to demonstrate a per se violation of Section 1692e because the nonexistence of a lawsuit alone in this case does not indicate an intent not to file suit. See id. at 719-20. Accordingly, the Court agrees that Case 1:18-cv-00089-JRH-BKE Document 22 Filed 04/20/20 Page 8 of 8 Defendant is entitled to summary judgment on Plaintiff's Section 16920 claim. IV. CONCLUSION Upon the foregoing, Defendant's motion for reconsideration {doc. 20) is GRANTED IN PART and DENIED IN PART. Summary judgment is appropriate on Plaintiff's Section 1692c and 1692e claims. The case shall proceed to trial in due course on Plaintiff's Section 1692d claim. ORDER ENTERED at Augusta, Georgia this day of April, 2020. J. RANDAL HAKL, CHIEF JUDGE flTglD STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA

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