United States District Court, D. Nebraska
M. Gerrard United States District Judge
a case of counsel run amuck. The actual facts of this case
are simple and straightforward: two letters, a telephone
call, and a default judgment in state court. But the parties
have managed to turn that into seven pending motions and
several hundred pages of evidence and argument. And their 16
briefs are littered with accusations and invective against
opposing parties and opposing counsel. That is, in some part,
the Court's fault: the Court should not have let things
get this far out of control. But it stops today.
effort to cut through the Gordian knot into which the parties
have tied themselves, the Court will skip almost to the end:
the defendants' motion for summary judgment (filing 70).
Based on the essentially undisputed material facts, the Court
finds that the defendants are entitled to summary judgment,
and will grant their motion. With the exception of some
evidentiary arguments addressed below, that will moot the
parties' remaining motions and result in a final judgment
for the defendants.
plaintiff, Simone Cribbs, asserts claims under the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692
et seq., and the Nebraska Consumer Protection Act
(NCPA), Neb. Rev. Stat. § 59-1601 et seq., for
the defendants' conduct in collecting a debt.
plaintiff incurred medical debts in 2012 and 2013. Filing 71
at 2.Those bills went unpaid and defendant
Accredited Collection Services (ACS) retained defendant
Brumbaugh and Quandahl, P.C. (B&Q), to pursue legal
action against the plaintiff. Filing 71 at 2. B&Q sent a
demand letter, but received no response. Filing 71 at 2. So,
on May 27, 2015, B&Q filed suit in state district court
on behalf of ACS. Filing 71 at 2. The plaintiff was served on
June 1. Filing 71 at 2.
plaintiff did not appear or defend in state court. Filing 71
at 2. But she did call B&Q on June 10, 2015, and leave a
message for Matthew Barnes, a legal assistant at B&Q.
Filing 71 at 2; seefiling 71-2. Barnes returned her
call the same day, and a recording of the conversation is in
evidence. Filing 71-11, Exh. A. Barnes told the plaintiff
that only way to stop the lawsuit was to pay her debt in
full, that ACS would want to pursue a judgment if the debt
was not paid, and that once the debt was paid B&Q would
file a satisfaction of judgment. Filing 71-11, Exh. A;
see filing 71 at 3. The plaintiff agreed to make 6
monthly payments of $65 each to satisfy the debt. Filing 71
at 3. The plaintiff also asked questions about the pending
court case, to which Barnes responded by repeatedly telling
the plaintiff that her legal questions would have to be
directed to her own attorney. Filing 71-11, Exh. A.
promised, during the telephone call, to send the plaintiff a
letter detailing the payment plan. Filing 71 at 3. So,
B&Q sent the plaintiff a letter dated June 10, 2015, with
the following body text:
Per our discussion, you have agreed to make payments on the
above referenced file in the amount of $65.00 beginning 19th
of June, 2015, and continuing monthly on or before the 19th
day of each month. Please send your payments to our office on
or before the due date. Our office will not send out reminder
31-2 at 3. The letter also contained payment instructions.
Filing 31-2 at 3. The plaintiff made the first payment.
Seefiling 71 at 3.
2, 2015, Barnes reviewed the plaintiff's file and noted
that she had still not appeared or defended in state court.
Filing 71 at 3. So, he prepared a motion for default
judgment. Filing 71 at 3. The same day, a letter was sent to
the plaintiff setting forth the remaining balance, reminding
her of the payment instructions, and stating: "This
matter can still be resolved cordially." Filing 31-2 at
4. On July 7, the motion for default judgment was filed, and
on July 8, default judgment was entered. Filing 71 at 3.
did not respond to the July 2 letter; instead, she filed this
case. Filing 71 at 3; filing 1. Nonetheless, she continued to
make the agreed-upon payments, and on April 5, 2016, B&Q
filed a satisfaction of judgment in the state court case.
Filing 71 at 3.
plaintiff's initial complaint was premised on the theory
that the defendants violated the FDCPA by suing her, despite
the fact that she was making payments. See filing 1.
Both defendants answered that complaint. Filing 10; filing
11. The plaintiff later filed an amended complaint alleging
the sequence of events set forth above-that is, that the
lawsuit preceded the June 10 and July 2, 2015 letters. Filing
16. Neither defendant answered that complaint. The plaintiff
moved for partial summary judgment. Filing 29.
defendants opposed summary judgment. Filing 34. The plaintiff
filed a motion to strike (filing 44) some of the
defendants' evidence and argument in opposition to
summary judgment, contending in part that the defendants
waived certain arguments by not answering the plaintiff's
amended complaint. See filing 45. (As will be
explained below, the motion to strike was wholly unnecessary,
because it was a vehicle for objecting to and arguing against
the defendants' opposition to summary judgment: the
arguments it presented should have simply been
asserted in the summary judgment briefing.)
point, the defendants noticed that the plaintiff's
amended complaint (filing 16) had been filed out of time, and
without leave of the Court. SeeFed. R. Civ. P.
15(a). The defendants moved to strike the amended complaint,
filing 49, and the Magistrate Judge granted that motion,
filing 52. So, the operative pleadings were (and are) filing
1, filing 10, and filing 11. See filing 52. The
plaintiff moved to reconsider that order, in part arguing for
leave to file an amended complaint. Filing 53. The Magistrate
Judge ordered the defendants to respond to the motion to
reconsider if they opposed leave to amend. Filing 55. They
did. Filing 58. And then, they filed their own motion for
summary judgment. Filing 70.
unsatisfied with one unnecessary motion to strike, the
plaintiff filed a separate motion reasserting her earlier
motion to strike. Filing 79. Not to be outdone, the
defendants filed an unnecessary motion to strike some of the
plaintiff's evidence opposing summary judgment (filing
81), and interposed an objection (filing 84) to the
plaintiff's motion to reassert her motion to strike. (The
objection was contrary to the Court's local rules.
See NECivR 7.1(b)(1)(A).) This is the rat king the
Court must now disentangle.
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(a). The movant bears the initial responsibility
of informing the Court of the basis for the motion, and must
identify those portions of the record which the movant
believes demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary
materials that set out specific facts showing that there is a
genuine issue for trial. Id.
motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Id. Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the evidence are jury
functions, not those of a judge. Id. But the
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In
order to show that disputed facts are material, the party
opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653
F.3d 745, 751 (8th Cir. 2011). The mere existence of a
scintilla of evidence in support of the nonmovant's
position will be insufficient; there must be evidence on
which the jury could conceivably find for the nonmovant.
Barber v. C1 ...