United States District Court, E.D. Michigan, Northern Division
DISTRICT JUDGE THOMAS L. LUDINGTON
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc.
Patricia T. Morris United States Magistrate Judge
Wayne Ader has brought suit against Defendant Merchants &
Medical Credit, Inc. under the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692 et
seq.. (Doc. 1.) For the reasons stated below, I
recommend DENYING Plaintiff's motion for summary
judgment. (Doc. 15.)
BACKGROUND AND ARGUMENTS
facts are not in dispute. The parties agree that Defendant
failed to disclose that the debt it was attempting to collect
from Plaintiff (account #6121228) was disputed by Plaintiff
(in August, September, and October of 2016) when Defendant
reported credit information to Experian Information
Solutions, Inc., a credit reporting agency. Defendant
properly reported two other account debts as disputed during
this same time period. The parties agree that Defendant is a
debt collector and that Defendant was collecting a debt under
the FDCPA. The sole issue is whether Defendant's failure
to flag the debt in account #6121228 (the debt) as disputed
violates §1692e(8) of the FDCPA.
case was referred to the undersigned magistrate judge for
full pretrial case management on November 15, 2016. (Doc. 4.)
On September 1, 2017, Plaintiff filed a motion for summary
judgment (Doc. 15, ) Defendant responded (Doc. 18, ) and
Plaintiff replied. (Doc. 20.) The issues have been briefed,
and all the arguments by the parties have been considered.
Thus, the motion is ready for Report and Recommendation.
Summary Judgment Standards
movant shows that “no genuine dispute as to any
material fact” exists, the court will grant her motion
for summary judgment. Fed.R.Civ.P. 56(a). In reviewing such
motion, the court must view all facts and inferences in the
light most favorable to the non-moving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). The moving party bears “the initial burden
of showing the absence of a genuine issue of material fact as
to an essential element of the non-movant's case.”
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479
(6th Cir. 1989) (quoting Celotex Corp. v. Cartrett,
477 U.S. 317, 323 (1986)) (internal quotation marks omitted).
In making its determination, a court may consider the
plausibility of the movant's evidence.
Matsushita, 475 U.S. at 587-88. Summary judgment is
also proper where the moving party shows that the non-moving
party cannot meet its burden of proof. Celotex, 477
U.S. at 325.
non-moving party cannot rest merely on the pleadings in
response to a motion for summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Instead,
the nonmoving party has an obligation to present
“significant probative evidence” to show that
“there is [more than] some metaphysical doubt as to the
material facts.” Moore v. Philip Morris Cos.,
8 F.3d 335, 339-40 (6th Cir. 1993). The non-movant cannot
withhold evidence until trial or rely on speculative
possibilities that material issues of fact will appear later.
10B Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2739 (3d ed. 1998). “[T]o
withstand a properly supported motion for summary judgment,
the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the
moving party.” Cosmas v. Am. Express Centurion
Bank, 757 F.Supp.2d 489, 492 (D. N.J. 2010). In doing
so, the nonmoving party cannot simply assert that the other
side's evidence lacks credibility. Id. at 493.
And while a pro se party's arguments are entitled to
liberal construction, “this liberal standard does not,
however, ‘relieve [the party] of his duty to meet the
requirements necessary to defeat a motion for summary
judgment.'” Veloz v. New York, 339
F.Supp.2d 505, 513 (S.D.N.Y. 2004) (quoting Jorgensen v.
Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)).
“[A] pro se party's ‘bald assertion, '
completely unsupported by evidence, is not sufficient to
overcome a motion for summary judgment.” Lee v.
Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y. 1995) (quoting
Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
the non-moving party fails to adequately respond to a summary
judgment motion, a district court is not required to search
the record to determine whether genuine issues of material
fact exist. Street, 886 F.2d at 1479-80. The court
will rely on the “facts presented and designated by the
moving party.” Guarino v. Brookfield Twp.
Trs., 980 F.2d 399, 404 (6th Cir. 1992). After examining
the evidence designated by the parties, the court then
determines “‘whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.'” Booker v. Brown & Williamson
Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989)
(quoting Anderson, 477 U.S. at 251-52). Summary
judgment will not be granted “if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248.
indicated above, the sole issue is whether Defendant's
failure to flag the debt in account #6121228 (the debt) as
disputed when reporting the debt to the credit reporting
bureaus violates 15 U.S.C. §1692e(8) of the
FDCPA. §1692e(8) prohibits
“[c]ommunicating or threatening to communicate to any
person credit information which is known or which should be
known to be false, including the failure to communicate that
a disputed debt is disputed.” Defendant contends that
summary judgment in favor of Plaintiff should not be granted
because Defendant's failure to report the account as
disputed: (1) was not material; (2) was a ...