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Gabriel Johnson v. Capital Management Services

December 1, 2011


The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge



Plaintiff Gabriel Johnson ("Plaintiff"), who is proceeding pro se, commenced this action against, inter alia, Defendants Capital Management Services ("CMS") and CMS Collectors Keitha Barber ("Barber"), Toni Morehead ("Morehead"), and Wes Caldwell ("Caldwell"),*fn1 alleging violations of various provisions of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p ("FDCPA").

The claims in Plaintiff's amended complaint (Docket No. 4) arise out of several telephonic communications between Plaintiff and Defendants concerning what Plaintiff asserts is an invalid credit card debt.

Currently before the Court are Plaintiff's motions for summary judgment with regard to his two remaining claims in the amended complaint against Defendants (Docket Nos. 28, 37), as well as his second motion to appoint counsel (Docket No. 46).

Defendants have filed an opposition to Plaintiff's motion and have cross-moved for summary judgment on the basis that the undisputed facts do not give rise to CMS' liability under the FDCPA (Docket No. 35).

The Court has deemed the motions submitted on papers pursuant to Rule 78(b) of the Federal Rules of Civil Procedure. For the reasons that follow, Plaintiff's motions for summary judgment and appointment of counsel are denied and Defendants' cross-motion for summary judgment is granted.


Plaintiff's amended complaint alleges that CMS violated the FDCPA when Defendants refused to validate a debt, and that CMS Collectors harassed and verbally abused him and made misrepresentations to him regarding the subject debt.

Plaintiff's allegations arise from a series of telephone conversations occurring on June 15 and June 16, 2010. The following facts are not in dispute.

On or about June 14, 2010, Plaintiff had an account with Resurgent Capital Services ("Resurgent") that was assigned to CMS for collection. CMS called Plaintiff approximately three times on June 14, 2010. The following day, June 15, 2010, Plaintiff called back the number belonging to CMS and spoke with CMS Collectors, who advised Plaintiff of his collection account with CMS, the name and identity of the original creditor, the current owner of the debt, and the amount of the debt owed.

Plaintiff stated that he intended to dispute the debt, and was advised by CMS Collectors that the collection efforts would continue until CMS received notice of a dispute at their office.

Following Plaintiff's threats to sue CMS, he was transferred to approximately four different representatives until he was ultimately informed that his collection account had been closed pursuant to a "cease and desist" order placed by CMS after Plaintiff's threat of an FDCPA lawsuit. CMS made no further efforts to collect on the subject debt after June 15, 2010. On June 16, 2010, CMS marked the account as "disputed," and Plaintiff's file was recalled by Resurgent.

During these conversations, Plaintiff told CMS collectors that he was a debt collector himself, understood his rights under the FDCPA, understood his obligations to properly dispute a debt, and had already filed one lawsuit against LVNV Funding for $300,000. Plaintiff recorded all of the aforementioned calls.


A. Summary Judgment--General Principles

Federal Rule of Civil Procedure 56 provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F. Supp. 794, 798 (W.D.N.Y. 1997) (Skretny, J.) (internal citations omitted).

A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id.

In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress, 398 U.S. 144, 158--59 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not "to weigh the evidence and ...

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