United States District Court, W.D. New York
JOHN T. CURTIN, District Judge.
Plaintiff Donald McQueen brought this action in March 2013 seeking relief pursuant to various provisions of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., against attorney Lee Huddleston doing business as Huddleston and Huddleston, Attorneys at Law, based on allegations involving attempts made in early 2012 to collect on a debt that plaintiff contends had been satisfied in 2006. See Items 1, 12. Defendant has now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
For the reasons that follow, defendant's motion is denied.
In the original complaint, plaintiff alleged that the law office of "Huddleston and Huddleston, " organized and existing under the laws of the State of Kentucky, attempted to contact him in early 2012 to collect on a defaulted consumer debt owed to CitiFinancial, which plaintiff had previously satisfied through arrangements with the judgment creditor, CSGA, LLC. Plaintiff claimed, among other things, that someone from the Huddleston office left a voicemail on plaintiff's phone on March 27, 2012, advising that steps were being taken to execute on the judgment taken by CSGA, including legal action. See Item 1.
In response to the complaint, Mr. Huddleston filed a limited pro se appearance in this action in order to assert various grounds for dismissal on the pleadings, including improper venue; lack of personal jurisdiction; insufficient process; insufficient service; and failure to join the Buffalo, New York law firm of Bronson & Migliaccio LLP (the "Bronson firm") as a necessary party. See Item 6. Mr. Huddleston asserted that he was unaware of an entity doing business as "Huddleston and Huddleston, " and that plaintiff apparently had confused the collection efforts of his law office (then doing business as "Huddleston & Huddleston, Attorneys at Law PLLC") in April 2009 with the efforts of the Bronson firm to collect on a second, separate debt plaintiff had incurred with CitiFinancial. Mr. Huddleston further asserted that his law office closed its file on plaintiff out of an abundance of caution when plaintiff produced documentation showing that one of the debts had been paid, and that it must have been someone from the Bronson firm who left the voicemail on March 27, 2012 looking for payment on the other CitiFinancial debt. See id. at 2-4.
The court considered each of the grounds for dismissal raised by Mr. Huddleston in his limited pro se submission, but denied the motion. McQueen v. Huddleston and Huddleston, 2013 WL 5592804 (W.D.N.Y. Oct. 10, 2013). The court found that the complaint contained sufficient allegations of debt collection activity in the Western District of New York on the part of the Huddleston law office to establish venue under the FDCPA, and that there were genuine issues of material fact regarding the existence of two separate CitiFinancial debts-and the confusion over debt collection efforts by the Bronson and Huddleston law offices-precluding a determination of non-joinder under Fed.R.Civ.P. 19. The court also granted plaintiff leave to amend the complaint in order to provide an opportunity to name, serve, and obtain personal jurisdiction over the proper party. See id.
Plaintiff filed the amended complaint on November 11, 2013, naming "Lee Huddleston d/b/a Huddleston and Huddleston Attorneys at Law" as defendant. Item 12. Mr. Huddleston responded by filing a "hybrid" motion to dismiss for lack of personal jurisdiction/answer, asserting insufficient minimum contacts with the forum state to comport with due process. See Item 13. The court again denied the motion, finding that the totality of the circumstances presented in the pleadings and submissions-including defendant's acknowledged collection efforts in April 2009-established a sufficient prima facie showing to authorize the exercise of personal jurisdiction under New York's long-arm statute, N.Y. Civ. Prac. L. & R. ("C.P.L.R.") § 302(a). McQueen v. Huddleston, 17 F.Supp. 3d 248 (W.D.N.Y. May 1, 2014). The court also considered that potion of the hybrid submission designated as the "Answer" to be the operative responsive pleading, and scheduled an initial pretrial telephone conference for July 16, 2014, with specific directions to the parties to comply with the requirements of Fed.R.Civ.P. 26(a) and (f) to exchange initial disclosures, meet and confer, and submit a proposed discovery plan prior to the conference. Id. at 254.
As reflected by the entries on the court's docket, none of these events have taken place. Instead, Mr. Huddleston has filed a third dispositive motion, this time seeking summary judgment pursuant to Fed.R.Civ.P. 56 on the ground that plaintiff has sued the wrong party. See Item 18. According to Mr. Huddleston, neither "Huddleston & Huddleston, Attorneys at Law PLLC" (the defendant sued in the initial complaint) nor "Huddleston and Huddleston Attorneys at Law" (the defendant sued in the amended complaint) are legally recognized existing entities, leaving only Lee Huddleston individually as a viable defendant-and the undisputed facts show that Mr. Huddleston did not personally commit any of the FDCPA violations offenses alleged, and that in any event Mr. Huddleston is not a proper defendant because he does not earn a substantial portion of his income from collecting debts. See id. Plaintiff responds that the motion should be denied as premature, since no discovery has been conducted with regard to these asserted facts. See Item 22.
Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that 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). Under the well-settled standards for considering a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine issue of material fact exists. Rockland Exposition, Inc. v. Great American Assur. Co., 746 F.Supp.2d 528, 532 (S.D.N.Y. 2010), aff'd, 445 F.Appx. 387 (2d Cir. 2011). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving 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 the governing law...." Id.
Once the court determines that the moving party has met its burden, the burden shifts to the opposing party to "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted); see also Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (at summary judgment, "[t]he time has come... to put up or shut up'"), cert. denied, 540 U.S. 811 (2003). In considering whether these respective burdens have been met, the court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks and citation omitted). The court's role is not to resolve issues of fact, but rather to determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. When "little or no evidence may be found in support of the nonmoving party's case... [and] no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Resid. Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted).
Rule 56 provides further that, where the party opposing summary judgment "shows by affidavit or declaration that, for specific reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declaration or to take discovery; or (3) issue any other appropriate order." Fed.R.Civ.P. 56(d); see Benjamin v. Fosdick Mach. Tool Co., 2012 WL 4959424, at *2 (W.D.N.Y. Sept. 27, 2012). To obtain relief under Rule 56(d), the party opposing summary judgment must establish: "(1) what facts are sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those ...