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Andrews v. Simm Associates, Inc.

United States District Court, W.D. Washington, Tacoma

August 9, 2017

BRYAN ANDREWS, Plaintiff,
v.
SIMM ASSOCIATES, INC., Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND

          BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendant Simm Associates, Inc.'s motion for summary judgment (Dkt. 23) and Plaintiff Bryan Andrews's motion for leave to file an amended complaint (Dkt. 17). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby (1) grants in part and denies in part Defendant's motion for summary judgment, and (2) grants Plaintiff's motion for leave to file an amended complaint.

         I. BACKGROUND

         On September 8, 2016, Plaintiff filed his complaint. Dkt. 1. Plaintiff brings claims against Defendant for violations of the Fair Debt Collection Practices Act (“FDCPA”) and the Telephone Consumer Protection Act (“TCPA”). Id.

         On June 6, 2017, Plaintiff moved for leave to file an amended complaint. Dkt. 17. On June 19, 2017, Defendant filed a response opposing amendment. Dkt. 19. On June 23, Plaintiff replied. Dkt. 24.

         On June 20, 2017, Defendant moved for summary judgment. Dkt. 23. On July 10, 2017, Plaintiff responded. Dkt. 26. On July 14, 2017, Defendant replied. Dkt. 3.

         II. DISCUSSION

         A. Motion for Summary Judgment

         1.Standard

         Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         2.FDCPA Claim

         Defendant moves for summary judgment on Plaintiff's FDCPA claim on three grounds. First, Defendant argues that it is not a “debt collector” for the purposes of the FDCPA because it was hired as a “first party collection service.” Second, Defendant argues that Plaintiff cannot show that Defendant intended to harass or annoy him when calling his place of work.

         a. “Debt Collector”

         Regarding the first argument, the Court concludes that Defendant has failed to establish that it is entitled to summary judgment under a theory that it is not a “debt collector” subject to the FDCPA. Under the FDCPA, a “debt collector” is one “who uses any instrumentality of interstate commerce or the mails in any business [1] the principal purpose of which is the collection of any debts, or [2] who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). “Everyone agrees that the term embraces the repo man- someone hired by a creditor to collect an outstanding debt.” Henson v. Santander Consumer USA Inc., 137 S.Ct. 1718, 1720 (2017). Such a “repo man” does not include “any officer or employee of a creditor while, in the name of the creditor, collecting debts for such ...


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