Msj Federal Court

Document Sample
Msj Federal Court Powered By Docstoc
					1    Christine Baker
2
     [deleted]
     Fax: (571) 222-1000
3    Email: christine@bayhouse.com
4
     In Pro Per
5

6

7
                        IN THE UNITED STATES DISTRICT COURT
8
                               FOR THE DISTRICT OF ARIZONA
9
                                                )
10                                              )
     Christine Baker;                           )            CIV-03-0525-PCT-RCB
11                                              )
                  Plaintiff,                    )
12                                              )       PLAINTIFF’S RESPONSE IN
           v.                                   )       OPPOSITION TO VERIZON
13                                              )
     Fair, Isaac & Company, et al;              )        WIRELESS’ MOTION FOR
14                                              )      SUMMARY JUDGMENT AND
                  Defendants.                   )      MOTION TO WITHDRAW HER
15                                              )
                                                )            ADMISSIONS
16                                              )
                                                )          (Oral Argument Requested)
17

18

19
           Plaintiff Christine Baker hereby responds to the Verizon Wireless (“Verizon”)

20
     Motion for Summary Judgment (“MSJ”) and her Objection is supported by the

21
     accompanying Memorandum of Points and Authorities, her responses to the Verizon

22
     Separate Statement of Facts and Controverting Facts, Affidavit and exhibits.

23
           Plaintiff requests that the Court allow Plaintiff to withdraw the 1/24/06

24
     Admissions and to substitute her Responses originally served on 1/25/06.

25
           Plaintiff denies that she was not wronged by Verizon. The Court has subject

26
     matter jurisdiction due to the Fair Debt Collection Practices Act (“FDCPA”) claims in

27
     her proposed First Amended Complaint and Plaintiff’s damages are recoverable. Plaintiff

28
     timely filed her Motion For Leave Of Court To File Her First Amended Complaint on
     3/15/06.
                                                 -1-
1           Since Plaintiff could not locate the Exhibits referenced by Verizon (the Verizon
2
     MSJ is attached to its amended Statement of Facts instead of the exhibits), Plaintiff
3
     attached her Responses to the Verizon Requests as Exhibits UW.
4
                      MEMORANDUM OF POINTS AND AUTHORITIES
5
     I. PLAINTIFF’S ADMISSIONS
6
            Verizon claims that Plaintiff admitted all matters requested in its First Set of
7
     Requests for Admissions (“RFA”) because she served her Responses to the Verizon RFA
8
     1 (one) day late, as she apparently miscalculated the due date. Verizon wrote in its MSJ,
9
     p. 2, 11-15:
10
                    Failure to timely respond to requests for admissions results in an automatic
11                  admission of the matters requested. See Federal Trade Comm’n v. Medicor,
                    LLC, 217 F.Supp.2d 1048, 1053 (C.D. Cal. 2002) (holding that failure to
12
                    timely respond to requests for admissions results in an automatic admission
13                  of matters requested, even if the requesting party makes no motion to
                    establish admission);
14

15
            Apparently Medicor did not provide any responses to the admissions and argued
16
     that a motion to establish admission had to be filed. Plaintiff is not making this
17
     argument, she accidentally served her Responses one day late.
18
            Verizon cited in its MSJ, p. 2, 15-17:
19
                    Upchurch v. USTNET, Inc., 158 F.R.D. 157, 161 (D.Or. 1994) (holding that
20                  party was entitled to have matters requested for admission declared
                    admitted by default where defendant failed to respond to properly served
21
                    request for admissions within required 30 days);
22

23          USTNET had filed its responses to the Upchurch requests for admissions 2 weeks
24   late and the court later granted USTNET’s motion for reconsideration: Upchurch v.
25   USTNET, Inc., 160 F.R.D. 131 (D.Or. 1995). The court wrote: “The motion of USTNET
26   for reconsideration of its motion to withdraw its admissions (#41--2) is granted, and on
27   reconsideration, the motion of USTNET to withdraw its admissions (#29) is granted.
28   USTNET may withdraw its admissions to Upchurch's requests [**10] for admissions and
     substitute the responses which USTNET originally filed on January 28, 1994.”
                                                  -2-
1           Verizon cited in its MSJ, p. 2, 18-22:
2                     An-Port, Inc. v. MBR Industries, Inc., 772 F.Supp. 1301, 1305 (D.Puerto
3                     Rico 1991) (holding that plaintiff’s failure to respond to defendant’s request
                      for admissions within period given resulted in automatic admission of
4                     requests contained therein, conclusively establishing admitted facts as law
5
                      of case, which could be utilized by defendant to support motion for
                      summary judgment).
6
            However, An-Port filed its motion for extension of time not until 10 days after the
7
     due date for its responses and then it failed to respond within the enlarged period given.
8
     Plaintiff was merely 1 day late and she requests that the Court allow her to substitute her
9

10
     Responses served on 1/25/06.

11   II. Genuine Issues As To Material Facts

12          The most important issues:

13      1) Verizon attempted to collect a debt that did not exist.
14        Verizon did not address this issue and it instead focused on Plaintiff’s admissions,
15   claims, jurisdiction and damages.
16        Plaintiff couldn’t have cared less if Verizon’s collection activities had been limited
17   to sending invoices or suing her for the alleged debt. After all, Verizon would have had
18   to serve her with the summons and Plaintiff would have been able to prove that the debt
19   did not exist.
20        However, Verizon is not the only creditor to extort payments of nonexistent debts
21
     through threats of credit reporting. In 1997, Defendant Pacific Bell (dismissed for lack of
22
     personal jurisdiction) also assigned a debt that did not exist to its collection agency and
23
     Plaintiff’s disputes to Pacific Bell and the collector, including numerous submissions of
24
     her cancelled check, were ignored. This fraudulent collection destroyed Plaintiff’s credit
25
     rating, prevented her from refinancing her mortgage and subsequently she had to sell her
26
     house. Plaintiff decided to take the proceeds from the sale and to go on a long vacation
27
     and travel rather than going on a killing spree or committing suicide.
28



                                                    -3-
1         Nothing is more frustrating than knowing that you did nothing wrong, you paid
2
     your bills, the creditors received all payments, but they demand payment again and
3
     they threaten to ruin your credit if you don’t pay an entirely fraudulent debt.
4
          By 2001, 4 different collection agencies reported the disputed and nonexistent
5
     Pacific Bell debt as collection on Plaintiff’s credit reports and Plaintiff never received
6
     any notice!
7
          Threats of credit reporting are an incredibly effective tool to extort monies not owed.
8
     Consumers often don’t know that a creditor or collector is reporting a collection until
9
     applications are denied and/or existing creditors raise rates or close accounts.
10
          Verizon’s own documents submitted with its Initial Disclosures, Exhibits AV -
11
     VER0008, VER0009, VER0011, VER0012, document that it received Plaintiff’s
12
     payments as it posted the payments to her account. Plaintiff can’t understand why it is
13
     impossible for anyone at Verizon to determine that Plaintiff did not owe the debt it was
14

15
     collecting:

16
          Final statement balance: $84.58 - $90 - $85 + $90 = ?????

17        Plaintiff did not cash the $90.42 final refund check [Affidavit ¶ 15, Exh. AU-7]

18   issued by Verizon in error and she advised Verizon, its collectors and the FCC
19   accordingly.
20        2) Verizon continued to collect despite Plaintiff’s many disputes
21        Verizon did not address this issue other than to state that plaintiff’s extortion claim
22   is not a “cognizable claim.” [MSJ, p. 9, ln. 18] and it claimed that Plaintiff never had an
23   account with Verizon. Apparently Verizon changed the names in its computer to delete
24   Plaintiff’s name. However, Plaintiff opened and maintained the account at all times.
25
     [Affidavit ¶¶ 2-7]. In her 6/1/2000 response to Plaintiff’s FCC complaint, Verizon’s
26
     Kay Howe, Administrator – Regulatory Department, stated “[we] have verified that Ms.
27
     Baker’s account was closed on 01-08-1999.” [emphasis added] [Exhibit AU-11]
28



                                                   -4-
1    III. LEGAL ARGUMENT
2
     A. Standard of Review
3
            In seeking rulings from the Court as a matter of law, the court views the evidence
4
     and all reasonable inferences therefrom in the light most favorable for the non-moving
5
     party. Celetex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). Summary judgment
6
     is only appropriate where there is no dispute of a material fact, and where evidence
7
     presented by the moving party forecloses the possibility of any facts that would support a
8
     reasonable inference in the non-moving party’s favor. Anderson v. Liberty Lobby, Inc.,
9
     477 U.S 242, 249, 106 S.Ct. 2505 (1986).
10
            Clearly, the exhibits and Plaintiff’s Affidavit and Controverting Statement of Facts
11
     establish numerous disputes of material facts and the Verizon MSJ should therefore be
12
     denied.
13
     B. Plaintiff Did NOT Admit that She Has Not Been Wronged or Damaged by
14
     Verizon.
15
            Verizon claims that Plaintiff’s service of her Responses to Verizon’s Discovery
16
     Requests on 1/25/06 instead of 1/24/06 results in automatic admissions. However, as
17
     explained in a comment to Federal Rule 36(b), "the admission that otherwise would
18
     result from a failure to make timely answers should be avoided when to do so will aid in
19
     the presentation of the merits of the action and will not prejudice the party who made the
20
     request."
21
            Rabil v. Swafford, 128F.R.D. 1 (D.D.C. 1989). The party who obtained the
22
     admissions must then show prejudice in maintaining the action or defense on the merits.
23

24
     If the party who obtained the admissions cannot show prejudice, the court should permit

25
     withdrawal or amendment.

26          Verizon cannot show prejudice and it did not even attempt to show prejudice

27   in its MSJ.

28          In Gonzales v. Boas, 2005 Md. App. LEXIS 54, the admissions were filed 8 days
     late. The circuit court granted the appellee's motion to strike appellant's response as
                                                  -5-
1    untimely. After holding that appellant was deemed to have admitted the facts contained
2
     in the request for admissions, which eliminated any genuine dispute as to material facts,
3
     the court entered summary judgment in appellee's favor. The court of special appeals
4
     reversed the circuit court’s judgment and remanded to the circuit court:
5
                   This opinion should not be interpreted as condoning the late filing of a
6                  response to a request for admissions or any other violation of the Rules.
                   Balanced against the need for enforcement of the rules, however, is the
7
                   dependence of litigants on the sound exercise of discretion, when permitted
8                  by the Rules, to prevent injustice resulting from an insubstantial
                   technicality.
9

10
            Verizon’s own statements submitted with its Initial Disclosures document that the
11
     debt it attempted to collect for several years despite Plaintiff’s numerous disputes did not
12
     exist and dismissing Plaintiff’s claims because she responded to Verizon’s requests one
13
     day late would certainly result in great injustice.
14
            Plaintiff agreed to stipulate to Verizon’s request for an extension to answer the
15
     Complaint (doc. # 9). According to the Joint Proposed Case Management Plan, the initial
16
     disclosures were due on 12/5/05 and Plaintiff did not object to Verizon’s serving its
17
     Initial Disclosures 4 days late.
18
            Plaintiff requests that the Court allow Plaintiff to withdraw her 1/24/06 admissions
19
     and to substitute the Responses she originally served by first class mail on Verizon the
20
     next day, on 1/25/06. [Exhibit AV-1]
21
     C. Subject Matter Jurisdiction
22
            In her proposed First Amended Complaint, Plaintiff seeks to add claims for
23
     violations of the FDCPA by Verizon and this Court has subject matter jurisdiction 15
24
     U.S.C. §1692k(d).
25
            While creditors are generally not liable for FDCPA violations, a creditor who uses
26
     someone else’s name so as to suggest to the debtor that a third party is involved in the
27
     debt collection process, when in fact that party is not involved, can be treated as a “debt
28
     collector” under the FDCPA. Nielsen v. Dickerson, 307 F.3d 623 (7th Cir., 2002).
                                                   -6-
1           In response to Plaintiff’s disputes, Verizon’s collection agencies never validated
2    this alleged debt and never attempted to validate this alleged debt as it did not exist.
3    Despite Plaintiff’s numerous disputes of the alleged debt with Verizon, the FCC and the
4    Verizon collectors, Verizon continued to collect the disputed debt. When a collector sent
5    the account back to Verizon after receiving Plaintiff’s dispute, Verizon ignored the
6    dispute and assigned the account to another collector. In fact, it was Verizon collecting
7    under the collectors’ names, making it liable for the continued collection activities and
8    other violations of the FDCPA.
9           Plaintiff timely filed her Motion For Leave Of Court To File Her First Amended
10   Complaint on 3/15/06 and this Court retains jurisdiction for FDCPA claims.
11   D. Plaintiff’s damages due to FDCPA, negligence and gross negligence claims are
12   recoverable

13          Plaintiff supplemented her Responses to Verizon to add claims of negligence and
14   gross negligence on 2/14/06. In her proposed First Amended Complaint, Plaintiff seeks
15   to add claims against Verizon for negligence, gross negligence and for violations of the
16   FDCPA. A debt collector who has violated any provision of the FDCPA is liable for
17   actual damages. 15 U.S.C. 1692k(a)(1).
18          Actual damages include emotional distress.
19          The debt collector may be held "liable for any mental and emotional stress,
20   embarrassment, and humiliation caused" by improper debt collection activities. Kleczy v.
21   First Federal Credit Control, Inc., 21 Ohio App.3d 56, 486 N.E.2d 204, 207 (1984);
22   Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671 (Minn. Ct. App. 1984);
23   Baez-Martinez v. PMS, 1997 U.S. Dist. LEXIS 3314 (D.P.R. 1997); McGrady v. Nissan
24   Motor Accep. Corp., 40 F.Supp. 2d 1323 (M.D.Ala. 1998); Carrigan v. Central
25   Adjustment Bureau, 502 F.Supp. 468 (N.D. Ga. 1980); Rawlings v. Dovenmuehle Mtge,
26   Inc., 64 F.Supp.2d 1156 (M.D.Ala. 1999).
27          Plaintiff’s damages are recoverable due to the new claims in her proposed First
28   Amended Complaint.

                                                   -7-
1    F. Verizon Is Not Entitled to An Award of Attorneys’ Fees.
2           Verizon has the audacity to request attorneys’ fees instead of admitting that it
3    collected a debt that never existed. This is not an isolated incidence, but Verizon
4    operates under the presumption that it is perfectly acceptable to move consumers’ hard
5    earned money into its bank accounts regardless of the merits of its collection activities.
6           Plaintiff doesn’t know anything about contract law. Presumably, Verizon could
7    have sued Plaintiff for the alleged debt, as the contract required Plaintiff to pay for the
8    service she received from Verizon. However, Plaintiff has no idea why the contract
9    would have anything to do with the collection of a debt that does not exist. While
10   Plaintiff must have misfiled the contract and she cannot currently locate it and Verizon
11   did not provide the contract with its initial disclosures, it seems unlikely that it contains
12   any clauses regarding the collection of a debt that does not exist.
13           Notably, Verizon claimed that no contract existed to get a dismissal [SOF at ¶ 5]
14   and then argued that a contract did exist to get an award for attorneys’ fees.
15          The Court should not award Verizon any attorneys’ fees and costs even if it grants
16   its Motion for Summary Judgment.
17   IV. CONCLUSION
18          For the foregoing reasons, Plaintiff requests that the Court deny Verizon’s Motion
19   for Summary Judgment and request for attorneys’ fees and costs and grant Plaintiff’s
20   Motion to Withdraw her Admissions and substitute with her Responses served on
21   1/25/06.
22          RESPECTFULLY SUBMITTED this 20th day of March, 2006.
23

24

25                                                                /s Christine Baker
                                                                   Plaintiff Pro Per
26

27

28



                                                   -8-
1                                   CERTIFICATE OF SERVICE
2
           I hereby certify that on the 20th day of March, 2006, I electronically transmitted
3
     the foregoing to the Clerk’s Office using the CM/ECF System for filing and transmittal of
4
     a Notice of Electronic Filing to the following CM/ECF registrants:
5

6
           Rodrick J. Coffey
7          STINSON MORRISON HECKER LLP
           1850 N. Central Avenue, Suite 2100
8
           Phoenix, Arizona 85004-4584
9          Attorneys for Defendant Verizon Wireless
10
           Scott Kirkner
11         JONES DAY
           3 Park Plz Ste 1100
12
           Irvine CA 92614-2592
13         Attorneys for Experian Information Solutions and Consumerinfo.com
14
           Philip Overcash
15         KUTAK ROCK LLP
           8601 N Scottsdale Rd Ste 300
16
           Scottsdale AZ 85253-2738
17         Attorneys for Nelnet Loan Services, Inc.
18
     A copy mailed USPS to:
19

20         HONORABLE ROBERT C. BROOMFIELD
           United States District Court
21         Sandra Day O’Connor U.S. Courthouse, Suite 626
22         401 West Washington Street, SPC 61
           Phoenix, AZ 85003-2158
23

24

25   s/ Christine Baker
26

27

28



                                                -9-

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:110
posted:4/18/2011
language:English
pages:9
Description: Msj Federal Court document sample