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Kiliszek v. Nelson

February 14, 2006

JUSTIN KILISZEK, PLAINTIFF
v.
NELSON, WATSON, & ASSOCIATES, LLC, DEFENDANT



The opinion of the court was delivered by: Judge James M. Munley United States District Court

MEMORANDUM

Presently before the Court for disposition is Defendant Nelson, Watson, & Associates, LLC's ("Nelson") motion for summary judgment. Plaintiff Justin Kiliszek has responded with a motion pursuant to Federal Rule of Civil Procedure 56(f) to reopen discovery and delay consideration of summary judgment. Along with his motion for further discovery, Kiliszek filed a motion to compel discovery, a motion to strike Nelson's discovery responses, and a motion to strike Nelson's summary judgment motion. These matters have been fully briefed and are ripe for disposition. For the following reasons, we will grant the motion for summary judgment on Counts IV-VII, but will allow Kiliszek to conduct additional discovery to oppose summary judgment on the remaining claims. We will deny his motion to compel and his motions to strike.

I. Background

Nelson is a debt collection agency that has attempted to collect a debt owed by Kiliszek. Kiliszek accrued the debt on a credit card with People's Bank. On May 6, 2004, Nelson sent Kiliszek a collection letter, which requested $736.19 in interest and $290 in fees in addition to the $1,647.44 principle balance. (Def. Ex. in Supp. Summ. J. 2). This letter also offered to settle the matter entirely with one payment of $1,336.67 if Nelson received the funds by the close of business on May 21, 2004. The letter did not however, include a notice providing that Nelson would: (1) assume the validity of the debt unless Kiliszek disputed it within thirty days; (2) obtain verification of the debt if Kiliszek disputed it and provide the verification to him; or (3) if requested, provide the name and address of the original creditor. Such a notice is required under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692g, for an original communication with a debtor.

Nelson kept a debtor overview report on Kiliszek's account, which is a computer record of all collection activity. (Def. Ex. 8 ¶ 2, Nelson Aff.) Kiliszek's report indicates that Nelson's initial communication was a letter sent on March 18, 2003, not the May 6, 2004 letter. (Def. Ex. 6, Debtor Overview Rep). This report does not indicate the contents of the initial communication.

Nelson does not keep hard copies of its collection letters, but instead notes the nature and types of letters on the debtor overview report and saves copies of the form letters. (Nelson Aff. ¶ 4-5). When Nelson needs a hard copy, it reprints the form letters with the debtor's current personal information, which may be different from the information that was on the original letter sent to the debtor, and the reprinted copy may also have a different font. (Id. ¶ 6-8) However, the content of the reprinted letter is identical to the original. (Id. ¶ 9).

Nelson has produced a letter dated March 18, 2003 ("exhibit three"), which includes the following notice:

Unless you dispute the validity of all or a portion of this debt within 30 days from your receipt of this letter, we will assume the debt is valid. If you notify us in writing within 30 days, that you dispute all or a portion of the debt, we will obtain verification of the debt or a copy of a judgment against you and mail the verification or copy to you. Upon your written request within the 30-day period, we will provide you with the name and address of the original creditor, if different from the current creditor. (Def. Ex. 3).

Exhibit three is not a copy of a letter sent to Kiliszek on March 18, 2003, because it lists an address for Kiliszek that he did not use until a later date. The parties dispute whether exhibit three is an accurate computer reproduction of a letter sent in March 2003 or a letter created by Nelson only after Kiliszek filed suit.

II. Procedural Background

Kiliszek initially filed suit in state court in Monroe County, Pennsylvania. On December 3, 2004, Nelson removed it to this Court. On December 22, 2004, Kiliszek filed an amended complaint, advancing seven separate counts. Counts I-III allege that Nelson violated the FDCPA because its initial communication did not include the notices required by 15 U.S.C. § 1692g. Count IV asserts that Nelson violated the FDCPA by including a false and misleading settlement offer in its May 6, 2004 letter. Counts V-VI maintain that Nelson violated the FDCPA in its May 6, 2004 letter by requesting interest and costs not provided for in the original agreement creating the debt. Count VII is a common law fraud claim, asserting that Nelson committed fraud by including false charges and interest on his account and then offering a "discount" settlement.

On February 9, 2005, we established the discovery deadline as June 9, 2005, and the dispositive motions deadline as June 29, 2005. Nelson filed the instant motion for summary judgment on May 2, 2005. On May 23, 2005, Kiliszek also filed a motion for summary judgment. Kiliszek argued that exhibit three was an inauthentic reproduction because it contained the wrong address. Thus, he maintained, Nelson never sent a letter in March 2003 and the original communication was the May 2004 letter, which did not include the statutorily required notice. On June 10, 2005, Nelson responded with George Nelson's affidavit, exhibit 8 to its motion for summary judgment, explaining Nelson's record keeping process and that it does not keep copies of its collection letters, but if it needs a hard copy it reproduces the original from a form letter saved in its computer system.

Kiliszek responded with a variety of discovery motions, beginning on June 27, 2005. First, he moved to strike Nelson's response to his earlier request for documents. Next, he moved to compel an answer to his original request for the production of documents. He also filed a motion and an affidavit pursuant to Federal Rule of Civil Procedure 56(f) to take further discovery.

According to his motions, in discovery he requested, "copies of all written communications sent by Nelson, Watson & Associates, LLC ("Defendant") to plaintiff." (Doc. 12, Mot. for Add. Disco. ¶ 7). Nelson responded with exhibit three, the reproduction of a March 18, 2003 letter. (Id. ¶ 8). Kiliszek intends to conduct further discovery to demonstrate that exhibits three is a post hoc fabrication, rather than an accurate reproduction a letter sent to him in March of 2003. (Id. ¶ 9). He also seeks a copy of his contract with the People's Bank, the original creditor. Finally, he seeks Defendants' admission that it would have accepted the settlement amount requested in the May 2004 letter even after the deadline provided therein.

II. Jurisdiction

The Court exercises jurisdiction over this dispute pursuant to its federal question jurisdiction, 28 U.S.C. § 1331, and supplemental jurisdiction, 28 U.S.C. § 1367. Pennsylvania law applies to those claims considered pursuant to supplemental jurisdiction. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).

III. Standards

A. Rule 56(f) If a party requires further discovery to oppose a pending summary

judgment motion, he must comply with the procedure set forth in Federal Rule of Civil Procedure 56(f).

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

FED. R. CIV. P. 56(f).

A party opposing summary judgment under Rule 56(f) must file an affidavit in support of his request for further discovery. Radich v. Goode, 886 F.2d 1391, 1398 (3d Cir. 1989) (citations omitted). He must describe, "what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained." Dowling v. City of Philadelphia, 855 F.2d 136, 140 (3d Cir. 1988).

B. Summary Judgment

Granting summary judgment is proper if 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. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts ...


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