Francis Gutierrez and Joseph Rydel v. At&t Broadband, LLC and Communications and Cable of Chicago, Inc.

382 F.3d 725
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 28, 2004
Docket03-3484
StatusPublished
Cited by49 cases

This text of 382 F.3d 725 (Francis Gutierrez and Joseph Rydel v. At&t Broadband, LLC and Communications and Cable of Chicago, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Francis Gutierrez and Joseph Rydel v. At&t Broadband, LLC and Communications and Cable of Chicago, Inc., 382 F.3d 725 (7th Cir. 2004).

Opinions

KANNE, Circuit Judge.

I. History

Francis Gutierrez and Joseph Rydel both contracted for cable television service with an entity known to them only as “AT&T Broadband.”1 Both disputed charges that appeared on their cable bills, both refused to pay, and both accounts were ultimately turned over to Credit Protection Association (“CPA”), a third-party collections agency. The letters they received from CPA represented that it was [730]*730collecting debts on behalf of “AT&T Broadband.”

Unknown to Gutierrez and Rydel, “AT&T Broadband” was not the name of a real entity or their actual creditor. Instead, it was the brand name used by their true creditors, cable franchisees LaSalle Telecommunications, Inc. and Communications and Cable of Chicago, Inc. (collectively, “Chicago Cable”). Confusingly, an entity with the name AT&T Broadband, LLC (as opposed to “AT&T Broadband” — no LLC) does exist. And complicating matters further, Chicago Cable and AT&T Broadband, LLC are sister corporations, falling under the massive umbrella of their mutual parent, AT&T Corp.

When Rydel decided to file a state court class action in Illinois over the disputed charges, he did so against AT&T Broadband, LLC (“Corporate Broadband”), believing it to be his creditor. Corporate Broadband then moved to dismiss the complaint against it, claiming that Rydel sued the wrong entity. It was then that Rydel learned that “AT&T Broadband” (the brand name) and AT&T Broadband, LLC (the corporate entity) were purportedly not the same and that his true creditor was Chicago Cable.2

This revelation — that Chicago Cable provided Rydel’s cable service and was his true creditor, not Corporate Broadband— led to the instant suit under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq. Both Gutierrez and Rydel sued Corporate Broadband under § 1692j for allegedly “designing], compiling], and furnishfing] any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor is participating in the collection of ... a debt .... ” In support of their claim, plaintiffs point to, among other documents, their bills and collection letters that direct payment be made to “AT&T Broadband” (not AT&T Broadband, LLC), at a Denver, Colorado address where Corporate Broadband receives mail. Because of the Denver address and the use of the name “AT&T Broadband,” the plaintiffs argue that Corporate-Broadband must have been the entity that designed, compiled and furnished the bills and collection letters. They further allege that the documents deliberately deceived them into thinking Corporate Broadband, and not their true creditor Chicago Cable, was attempting to collect their debts. The problem with that, the plaintiffs urge, is Corporate Broadband led them to believe they were dealing with communications giant AT&T, and not the lowly franchisee, Chicago Cable, in an attempt to intimidate them into paying their cable bills above other possible outstanding debts.

Plaintiff Rydel (Gutierrez does not join in this count of the complaint) also alleged that Chicago Cable violated § 1692e, which makes it unlawful for a debt collector to use any false, deceptive, or misleading representations or means in connection with the collection of any debt. Rydel argues that Chicago Cable meets the definition of “debt collector” under the FDCPA because, “in the process of collecting his own debts, [Chicago Cable] use[d] any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.” 15 U.S.C. § 1692a(6). Rydel asserts that even though Chicago Cable represented itself as “AT&T Cable Services” or “AT&T Broadband” throughout its relationship with him, the bills requesting payment to “AT&T [731]*731Cable Services” and the collection letter listing “AT&T Broadband” as payee amounted to the use of a name other than Chicago Cable’s own, indicating that a third person (“AT&T Cable Services” or “AT&T Broadband” or, perhaps even Corporate Broadband) was attempting to collect his debts. Again, the problem with Chicago Cable’s behavior, Rydel alleges, relates to its tapping into the power of its parent, AT&T, producing undue pressure on him to pay his bills. And, because “AT&T Cable Services” and “AT&T Broadband” were not registered assumed names of Chicago Cable under Illinois law and not registered service marks under federal trademark law, Rydel complains that he had no means of identifying his true creditor, resulting in the mistake in state court where he wrongly filed against Corporate Broadband.

The district court granted summary judgment to both Corporate Broadband and Chicago Cable. Gutierrez and Rydel timely appeal, and we affirm.

II. Analysis

A. Heller, Ryczek, and Politano Affidavits

Before we turn to the merits of the district court’s decision, we must first address the plaintiffs’ complaint that the district court abused its discretion in refusing to strike three affidavits the defendants proffered in support of their summary-judgment motion. The plaintiffs argue in the alternative that if the district court was unwilling to strike the affidavits, it should have reopened discovery for the limited purpose of allowing plaintiffs the opportunity to depose the three affiants.

It is questionable whether the plaintiffs’ half-hearted request for additional discovery below preserved the issue for appeal. After making a fully-developed argument requesting that the district court strike the offending affidavits (a fairly harsh remedy), the plaintiffs’ request for more depositions appeared as an afterthought at the end of their reply brief in support of their motion to strike. The motion nowhere mentioned Federal Rule of Civil Procedure 56(f) (which specifically provides for reopening of discovery in the midst of summary judgment briefing), and was unsupported by affidavits as generally required by Rule 56(f). See Woods v. City of Chicago, 234 F.3d 979, 990 (7th Cir.2000) (finding that failure to file an affidavit in support of a Rule 56(f) motion alone justifies the district court’s decision to deny the additional discovery), cited with approval in First Nat’l Bank & Tr. Corp. v. Am Eurocopter Corp., 378 F.3d 682 (7th Cir. Aug. 9, 2004), 2004 U.S.App. LEXIS 16360, at *30.

Even giving the plaintiffs the benefit of the doubt as to the viability of their request to remand this case for additional discovery, we find no reason to disturb the district court’s decision to allow the three depositions to stand, which we review for an abuse of discretion. See McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 617 (7th Cir.2001); Woods, 234 F.3d at 990.

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382 F.3d 725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francis-gutierrez-and-joseph-rydel-v-att-broadband-llc-and-ca7-2004.