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 Cadillac
Accounts Receivable Management, 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
complaint charges a violation of the Fair Debt Collection
practices Act (FDCPA) by failing to communicate that a debt
was disputed under 15 U.S.C. § 1692e(8). (Doc. 1.) The
complaint also alleges violations of the Michigan Collection
Practices Act and the Michigan Occupational Code. Defendant
was attempting to collect a debt owed by Plaintiff to Great
Lakes Eye Institute in the amount of $90.00 (the debt).
Plaintiff alleges that “[o]n or about July 27, 2016,
Mr. Ader submitted a letter to Defendant disputing the
alleged Debt.” (Doc. 1 at ¶ 2.) Plaintiff further
alleges that at least five companies obtained Plaintiff's
credit file from Experian after he sent the dispute letter to
Defendant. (Doc. 1 at ¶ 2-3.)
case was referred to the undersigned magistrate judge for
pretrial case management on November 29, 2016. (Doc. 7.)
Plaintiff filed a motion for summary judgment (Doc. 13, )
Defendant responded (Doc. 17, ) and Plaintiff replied. (Doc.
18.) Defendant contends that it reported the debt as disputed
following receipt of Plaintiff's letter and thus, never
failed to report the debt as disputed. (Doc. 17 at ¶
69-70.) Plaintiff replies that “credit reports from
Experian and TransUnion show that Defendant did not mark its
account as disputed[.]” (Doc. 18 at ¶ 87.) 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.
parties agree that Plaintiff is a consumer, that the debt
satisfies the definition of debt under the FDCPA, and that
Defendant is a debt collector under the Act. Section 1692e(8)
prohibits “[c]ommunicating or threatening to
communicate to any person credit information which is known
or which should be ...