United States District Court, E.D. Washington
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
SALVADOR MENDOZA, Jr., District Judge.
A motion hearing occurred in the above-captioned matter on November 18, 2014. Plaintiff Justin Lang was represented by Kirk Miller and Defendant Automated Accounts, Inc. ("AAI") was represented by Timothy Durkop. Before the Court were Defendant's Motion for Summary Judgment, ECF No. 13, and Plaintiff's Motion for Summary Judgment, ECF No. 25. Having reviewed the pleadings and the file in this matter, and heard the arguments of counsel, the Court is fully informed and for the reasons that follow finds no violation of 15 U.S.C. § 1692e but finds a genuine dispute of material fact precludes summary judgment on whether a violation of § 1692c(a)(2) occurred.
A. Factual Background
Defendant AAI is a debt collector and was attempting to collect a consumer debt from Mr. Lang, a consumer. ECF No. 16 at &1. AAI was assigned a claim from R.C. Schwartz and Associates against Mr. Lang for money owed pursuant to a rental agreement for an apartment in Spokane. Id. at && 2 & 5. On March 4, 2014, Defendant filed a lawsuit, which to date has not been resolved, against Plaintiff in the Spokane County District Court based on the R.C. Schwartz claim. Id. at && 4 & 6. On April 29, 2014, a Note for Trial Setting in the state matter was prepared, signed, and filed with the Spokane County District Court. Id. at & 9. The Note for Trial Setting, ECF No. 29-1, contains a "CERTIFICATION OF MAILING" section that is signed by Robin Wood, an employee of AII, stating that, on April 29, 2014, she mailed the Note to Plaintiff. ECF No. 29-1. On April 29, 2014, Robin Wood placed the Note for Trial Setting in AAI's mail system. ECF No. 16 at & 11. The envelope containing the Note sent to Plaintiff indicates that it was mailed on May 2, 2014. ECF No. 29-1.
Until April 30, 2014, Plaintiff represented himself in the state court matter. On April 30, 2014, Mr. Miller filed with the Spokane County District Court a Notice of Appearance on Plaintiff's behalf. Defendant admits it was served with a copy of Plaintiff's attorney's Notice of Appearance at 1:43 PM on April 30, 2014. ECF No. 23 at 2 & 4.7. Defendant also admits that an employee or agent of Defendant hand-wrote an acknowledgement of receipt of the Notice, ECF No. 28-1 ("rec'd 4/30/14). ECF No. 23 at 2 & 4.8. On May 1, 2014, Robin Wood learned of Mr. Miller's representation of Plaintiff. ECF No. 15 at 2, & 6. At the time Defendant mailed a copy of the Note for Trial Setting to Plaintiff, Defendant had not requested or received permission from Plaintiff's counsel or any court to communicate with Plaintiff directly. ECF No. 23 at 2 & 4.16.
B. Procedural Background
On June 11, 2014, Plaintiff filed a Complaint alleging two violations of the Fair Debt Collection Practices Act ("FDCPA"), specifically sections 15 U.S.C. § 1692b(6) and § 1692e. On September 22, 2014, Defendant moved for summary judgment. ECF No. 13. That same day, Plaintiff sought leave to amend his Complaint, ECF No. 17, to change the violation of § 1692b(6) to a violation of § 1692c(a)(2), which was granted September 24, 2014, ECF No. 21. Plaintiff filed the Amended Complaint, ECF No. 22, on September 29, 2014, and that same day, Defendant filed an Answer to the Amended Complaint, ECF No. 23. Also that same day, Plaintiff filed for summary judgment, ECF No. 25.
III. MOTIONS FOR SUMMARY JUDGMENT
A. Legal Standard
Summary judgment is appropriate 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). Once a party has moved for summary judgment, the opposing party must point to specific facts establishing that there is a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party fails to make such a showing for any of the elements essential to its case for which it bears the burden of proof, the trial court should grant the summary judgment motion. Id. at 322. "When the moving party has carried its burden under Rule [56(a)], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal citation omitted) (emphasis in original). When considering a motion for summary judgment, the Court does not weigh the evidence or assess credibility; instead, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When considering the summary judgment motion, the Court 1) took as true all undisputed facts; 2) viewed all evidence and drew all justifiable inferences therefrom in non-moving party's favor; 3) did not weigh the evidence or assess credibility; and 4) did not accept assertions made that were flatly contradicted by the record. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The parties do not dispute that Plaintiff was a consumer and that Defendant was a debt collector attempting to collect on a debt. As the parties have both moved for summary judgment, the sole issue before this Court is whether on the facts presented a violation of 15 U.S.C. ...