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Dorsey v. Schumacher, Pc

United States District Court, D. Oregon

February 11, 2015

AL DORSEY, Plaintiff,
v.
DAVID B. SCHUMACHER, P.C., Defendant.

Joshua Trigsted, TRIGSTED LAW GROUP, P.C., 5200 SW Meadows Road, Suite 150, Lake Oswego, OR 97035. Of Attorneys for Plaintiff.

Jonathan M. Radmacher and Katie Jo Johnson, McEWEN GISVOLD LLP, 1100 SW Sixth Avenue, Portland, OR 97204. Of Attorneys for Defendant.

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

Plaintiff brings claims under the Fair Debt Collection Practices Act ("FDCPA"). Plaintiff alleges, first, that Defendant is a debt collector whose initial communication with Plaintiff insufficiently notified him of his rights under 15 U.S.C § 1692g(a) and overshadowed his rights under § 1692g(b). Plaintiff next alleges that Defendant's communications were misleading under § 1692e(10). Defendant moves for summary judgment on the grounds that Plaintiff's claim is time-barred, that Defendant's communications were not an "initial communication" as defined in the FDCPA, and that Defendant's communications did not violate the FDCPA as a matter of law. Plaintiff moves for partial summary judgment on directly opposite grounds. For the reasons below, Defendant's and Plaintiff's motions are both granted in part and denied in part.

STANDARD

A party is entitled to summary judgment if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, " the "mere existence of a scintilla of evidence in support of the [non-movant's] position [is] insufficient" to avoid summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

Where parties file cross-motions for summary judgment, the court "evaluate[s] each motion separately, giving the non-moving party in each instance the benefit of all reasonable inferences." A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006) (quotation marks and citation omitted); see also Pintos v. P. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir. 2010) ("Cross-motions for summary judgment are evaluated separately under [the] same standard."). In evaluating the motions, "the court must consider each party's evidence, regardless under which motion the evidence is offered." Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the non-moving party bears the burden of designating "specific facts demonstrating the existence of genuine issues for trial." Id. "This burden is not a light one." Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a "metaphysical doubt" as to the material facts at issue. Matsushita, 475 U.S. at 586.

BACKGROUND

Defendant is an attorney who was retained by Columbia Collection Service to collect on a judgment obtained against Plaintiff Alfred Dorsey and his wife, April Dorsey (who is not a party to this suit). To that end, Defendant issued three writs of garnishment against Plaintiff's wages: one in 2007 and two more in August 2013 and October 2013. Oregon law requires that four documents be delivered to the debtor when his property is garnished: a copy of the writ of garnishment, a debt-calculation form, a notice-of-exemptions form, and a challenge-togarnishment form (collectively, the "garnishment papers"). Or. Rev. Stat. § 18.658. Accordingly, in connection with each garnishment, Defendant mailed Plaintiff an envelope containing those four documents. Additionally, treating each such mailing as an "initial communication" under the FDCPA, Defendant included in each envelope a fifth document: a notice that Plaintiff had certain rights. See 15 U.S.C. § 1692g(a).

At the time of the 2007 garnishment, Plaintiff was incarcerated at the Multnomah County Justice Center. Plaintiff asserts that he never received the 2007 communication. Defendant asserts that the 2007 communication was jointly mailed to Plaintiff and his wife at their last known home address, and that the mailing was not returned as undeliverable. Because neither party contests the other's factual allegations and the two allegations are not inconsistent with each other, the Court treats both as true for purposes of summary judgment.

Plaintiff filed suit in July 2014-within a year of the 2013 garnishments, but several years after the 2007 garnishment.

DISCUSSION

The FDCPA defines certain rights and obligations of debtors and debt collectors under federal law. Plaintiff brings his claims under two provisions of the FDCPA: First, 15 U.S.C. § 1692g defines the obligations of a debt collector in connection with its "initial communication" with a consumer and during the period immediately thereafter. Second, § 1692e broadly prohibits debt collectors from using "false, deceptive, or misleading ...


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