United States District Court, E.D. Washington
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
O. RICE CHIEF UNITED STATES DISTRICT JUDGE
THE COURT is Plaintiff's Motion for Summary Judgment. ECF
No. 101. This matter was submitted for consideration without
oral argument pursuant to LR 7.1(h)(3)(B)(iv). The Court has
reviewed the record and files herein, and is fully informed.
For the reasons discussed below, Plaintiff's Motion for
Summary Judgment (ECF No. 101) is DENIED.
case concerns a claim against Defendant Associated Credit
Services, Inc. (Associated), a Washington debt collection
agency. ECF No. 102 at ¶¶ 1-5. On April 1, 2016,
Plaintiff Myron Hargreaves filed a putative class action,
asserting violations of the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. § 1692 et seq.; the
Washington Consumer Protection Act (WCPA), RCW §
19.86.010 et seq.; and the Washington Collection
Agency Act (WCAA), RCW § 19.16.100. See ECF No.
1. On November 16, 2016, Plaintiff Hargreaves, along with
Cortney Halvorsen, and Bonnie Freeman, filed a First Amended
Complaint adding Defendants Paul J. Wasson and Monica Wasson
(Wasson Defendants). ECF No. 14. The Court twice denied class
certification. ECF Nos. 42; 83.
August 30, 2017, Defendants sought an order dismissing
Plaintiffs' “reason to believe claims, ”
which refer to Defendants allegedly, falsely certifying that
they had reason to believe the assets they were attempting to
garnish were not exempt. ECF Nos. 56 at 2; 14 at ¶ 7.13.
Alternatively, Defendants requested partial summary judgment
for failure to state a claim under Federal Rules of Civil
Procedure 8(a) and 12(b)(6). ECF No. 56 at 2. On October 20,
2017, the Court granted Defendants' Motion and dismissed
Plaintiffs' FDCPA claims regarding the adequacy of
Defendants' “reason to believe.” The Court
also dismissed Plaintiffs' WCAA and WCPA claims. ECF No.
remaining FDCPA claim alleges that judgement creditor
Associated, and its attorney, Mr. Wasson, sent false and
misleading information in the Notice of Garnishment and Your
Rights form regarding the amount of Plaintiffs' entitled
cash exemption. ECF No. 101 at 2. Defendants filed a Motion
for Summary Judgment, which they then withdrew after settling
with Plaintiffs Myron Hargreaves and Bonnie Freeman. ECF Nos.
92; 114; 115; 116. Plaintiffs' Motion for Summary
Judgment is then only still applicable to the remaining
Plaintiff Cortney Halverson. ECF No. 101. Plaintiff requests
the Court finds Mr. Wasson violated the FDCPA, with the
amount of damages to be determined at trial. Id. at
10. Wasson Defendants assert that Mr. Wasson lacks legal
responsibility for sending the form and Associated joins in
their response. ECF Nos. 106 at 10; 111.
judgment is appropriate when “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). In
ruling on a motion for summary judgment, the court views the
facts, as well as all rational inferences therefrom, in the
light most favorable to the non-moving party. Scott v.
Harris, 550 U.S. 372, 378 (2007). The court must only
consider admissible evidence. Orr v. Bank of America, NT
& SA, 285 F.3d 764, 773 (9th Cir. 2002).
moving party bears the initial burden of showing the absence
of any genuine issues of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then
shifts to the non-moving party to identify specific facts
showing there is a genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). There must be evidence on which a jury could
reasonably find for the plaintiff and a “mere existence
of a scintilla of evidence in support of the plaintiff's
position will be insufficient.” Id. at 252.
Additionally, a fact is “material” if it might
affect the outcome of the suit under the governing law.
Id. at 248. A material fact is “genuine”
where the evidence is such that a reasonable jury could find
in favor of the non-moving party. Id.
Plaintiff requests that the Court enter an order against Mr.
Wasson finding that he violated the FDCPA by sending the
Notice of Garnishment and Your Rights form, stating that
Plaintiff was only entitled to $200 when Washington law
allows her to claim up to $500 cash exemption. ECF No. 101 at
2, 4. Wasson Defendants agree that Plaintiff is a consumer,
Plaintiff had debts as defined by the FDCPA, and that Mr.
Wasson is a “debt collector” as defined by the
FDCPA. ECF Nos. 106 at 5; see also 101 at 4-9. The
Court then need only address the issue of whether Mr. Wasson
is liable under the FDCPA for making a “false,
deceptive or misleading representation” or otherwise
engaging in unfair practices. ECF Nos. 106 at 5; 101 at 9; 15
U.S.C. § 1962e; 15 U.S.C. § 1962f.
argue that Mr. Wasson is not a “judgment
creditor” and thus is not obligated under RCW
6.27.130(1) to mail the Notice of Garnishment and Your Rights
form. ECF No. 106 at 6. The statutes reads that “the
judgment creditor shall mail or cause to be mailed to the
judgment debtor ….” RCW 6.27.130(1). Plaintiff
concedes that “the law does not require Mr. Wasson to
send the notice, ” but argues that Mr. Wasson admits
his office is responsible for mailing the notices. ECF Nos.
112 at 1-2; 103-1 at 3. Plaintiff asserts that Mr. Wasson was
acting as an agent and is thus still liable. ECF No. 112 at
Ninth Circuit has recognized vicarious liability under the
FDCPA. Clark v. Capital Credit & Collection Servs.,
Inc., 460 F.3d 1162, 1173 (9th Cir. 2006). Yet, the
Ninth Circuit found that “there is no legal authority
for the proposition that an attorney is generally liable for
the actions of his client.” Id. General
principles of agency form the basis of vicarious liability
under the FDCPA. Id. Here, Plaintiff merely asserts
that Mr. Wasson was acting as an agent of Associated by
sending the forms. ECF No. 112 at 2. Yet, beyond this mere
assertion, Plaintiff fails to state any of the principles of
agency and how they apply to this situation. Simply because
Mr. Wasson is the attorney for Associated does not mean he is
generally liable for Associated's actions. Similar to
Clark, Plaintiff fails to offer evidence upon which
a reasonable trier of fact could conclude that Mr. Wasson can
be held liable for the actions of Associated when Associated
merely caused the forms to be mailed through Mr. Wasson's
legal assistant. See Clark, 460 F.3d at 1173;
see also RCW 6.27.130(1). The Court declines to hold
Mr. Wasson liable under these facts when his role is more
comparable to a mail room employee than an agent of
Court need not address Plaintiffs remaining argument
regarding Mr. Wasson's affirmative defense of bona fide
error. See ECF Nos. 106, 112. Accordingly, the Court
concludes that Mr. Wasson cannot be held liable under the
FDCPA under an agency theory and denies Plaintiffs Motion for
Summary Judgment. ECF No. 101.