2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Aug 04, 2020
SEAN F. MCAVOY, CLERK 4
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 GERALD RUSSELL, NO: 2:19-CV-273-RMP 8 Plaintiff, ORDER GRANTING 9 v. DEFENDANT’S MOTION TO STRIKE AND MOTION FOR 10 GC SERVICES LIMITED PARTIAL SUMMARY JUDGMENT PARTNERSHIP, 11 Defendant. 12
13 BEFORE THE COURT are Defendant’s Motion for Summary Judgment and 14 Motion to Strike, ECF No. 61. While Defendant does not contest liability in this 15 case, Defendant has moved for partial summary judgment on Plaintiff’s claim for 16 actual damages under the Fair Debt Collection Practices Act. Defendant also has 17 moved to strike the declaration of Autumn Russell, which Plaintiff submitted in 18 opposition to Defendant’s Motion for Partial Summary Judgment. The Court has 19 considered the record, the briefing, and is fully informed. 20 // 21 // 1 BACKGROUND 2 The facts of this case are largely undisputed. In 2019, Plaintiff Gerald 3 Russell sued Sprint, his former cellular telephone service provider, for fraudulent 4 billing. He alleged that Sprint charged him $683.27, after he had switched service
5 providers and after he already had paid his final bill. 6 In May and June of 2019, Defendant GC Services Limited Partnership, a 7 debt collection company, contacted Plaintiff Gerald Russell on behalf of Sprint to
8 collect the contested debt. ECF No. 62 at 2. It is undisputed that Mr. Russell 9 received four telephone calls and one letter from GC Services regarding his 10 purported debt between May 23, 2019 and June 5, 2019. Id. Additionally, it is 11 undisputed that the June 5th telephone call was placed after Mr. Russell had
12 provided GC Services with the name and phone number of his attorney 13 representing him in his action against Sprint. ECF No. 32 at 10–15 (transcript of 14 telephone calls).
15 In response to GC Service’s communications with him, Plaintiff filed this 16 lawsuit against GC Services in Spokane County Superior Court. See ECF No. 1-1. 17 On August 9, 2019, GC Services removed the case to this Court. Shortly
18 thereafter, Plaintiff filed an amended complaint alleging that GC Services violated 19 the Fair Debt Collection Practices Act (FDCPA) and the Washington Consumer 20 Protection Act (WCPA) by attempting to collect the contested debt on behalf of 21 1 Sprint, after learning that the debt was contested and the subject of a lawsuit. See 2 ECF No. 2. 3 On April 21, 2020, the parties submitted a Joint Stipulation in which Mr. 4 Russell agreed to dismiss his state law claims with prejudice and GC Services
5 agreed not to contest liability on Mr. Russell’s FDCPA claim. ECF No. 65. 6 Pursuant to the stipulation, the parties agree that the only issue remaining in this 7 case is damages on Plaintiffs’ FDCPA claim. The Court dismissed Plaintiff’s state
8 law claims with prejudice and entered judgment as to liability on Plaintiff’s 9 FDCPA claim. 10 GC Services has moved for summary judgment on Mr. Russell’s claim for 11 actual damages, arguing that Mr. Russell has not provided evidence of actual
12 damages. In response, Mr. Russell argues that he has provided sufficient evidence 13 to submit the question of actual damages to a jury. Mr. Russell has attached a 14 sworn declaration from his wife, Autumn Russell, to his opposition brief, which he
15 maintains supports his claim for actual damages caused by emotional distress. See 16 ECF No. 65-2. Mr. Russell did not originally identify Ms. Russell as a potential 17 witness in his initial disclosures. Rather, he updated his initial disclosures to
18 include her after GC Services filed the instant Motion for Summary Judgment and 19 before filing his response. See ECF No. 65-4 (Plaintiff’s updated initial 20 disclosures signed May 8, 2020). 21 1 In its reply brief, GC Services moved to strike Ms. Russell’s declaration 2 under Federal Rule of Civil Procedure 37(c), arguing that Ms. Russell was not 3 identified in Plaintiff’s initial disclosures, and because Mr. Russell did not 4 supplement his initial disclosures in a timely manner to include Ms. Russell as a
5 person with knowledge of discoverable information. 6 DISCUSSION 7 I. Defendant’s Motion to Strike
8 First, the Court considers GC Services’ Motion to Strike. GC Services has 9 moved to strike the declaration of Ms. Russell pursuant to Rule 37(c)(1), as 10 Plaintiff did not disclose Ms. Russell in his initial disclosures consistent with Rule 11 26(a), or supplement his discovery responses to include her as a potential witness
12 in a timely fashion, consistent with Rule 26(e). 13 A. Legal Standard 14 Under Rule 37(c)(1), “If a party fails to provide information or identify a
15 witness as required by Rule 26(a) or (e), the party is not allowed to use that 16 information or witness to supply evidence on a motion, at a hearing, or at trial, 17 unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
18 37(c)(1). The party facing the sanction bears the burden of demonstrating that the 19 failure to disclose was substantially justified or harmless. Torres v. City of L.A., 20 548 F.3d 1197, 1213 (9th Cir. 2008). 21 1 The initial disclosures mandated by the Federal Rules of Civil Procedure are 2 designed “to encourage parties to try cases on the merits, not by surprise, and not 3 by ambush.” Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 862 (9th 4 Cir. 2014). The Ninth Circuit has concluded that a trial court does not abuse its
5 discretion when it excludes a witness who was not disclosed pursuant to Rule 26(a) 6 or (e), even when that witness was mentioned during a deposition. Id. at 863. In 7 reaching this conclusion, the Circuit has reasoned: “An adverse party should not
8 have to guess which undisclosed witnesses may be called to testify. We—and the 9 Advisory Committee on the Federal Rules of Civil Procedure—have warned 10 litigants not to ‘indulge in gamesmanship with respect to the disclosure 11 obligations’ of Rule 26.” Id. (quoting Marchand v. Mercy Med. Ctr., 22 F.3d 936
12 n. 3 (9th Cir. 1994)); see also Benjamin v. B & H Educ. Inc., 877 F.3d 1139 (9th 13 Cir. 2017). 14 In certain circumstances parties are required to update their initial
15 disclosures. See Fed. R. Civ. P. 26(e). Rule 26(e) requires that corrected or 16 supplemental disclosures be provided in a timely fashion. See Fed. R. Civ. P. 17 26(e)(1)(A).
18 B. Compliance with Rule 26(a) and (e) 19 Here, Plaintiff did not disclose his wife as an individual likely to have 20 discoverable information in his initial disclosures consistent with Rule 26(a). See 21 Fed. R. Civ. P. 26(a)(1)(A)(i). While he updated his initial disclosures, he did so 1 on May 8, 2020, after Defendants had filed the instant Motion for Summary 2 Judgment and months after the close of discovery on March 6, 2020. Given 3 Plaintiff’s significant delay in supplementing his initial disclosures, and the fact 4 that the contested witness is Plaintiff’s wife about whom he should have had
5 immediate knowledge, the Court finds that the supplemental disclosure was not 6 made in a timely fashion under Rule 26(e). 7 Plaintiff contends that he complied with Rule 26(e), governing updated
8 disclosures, because he mentioned his wife as a person with knowledge of this case 9 at his deposition. Under Rule 26(e), a party must supplement an initial disclosure 10 only “if the additional corrective information has not otherwise been made known 11 to the other parties during the discovery process or in writing[.]” Fed. R. Civ. P.
12 26(e)(1)(A). Accordingly, Plaintiff argues that he was not required to update his 13 initial disclosures under Rule 26(e), as he provided sufficient corrective 14 information in his deposition.
15 However, during his deposition, Plaintiff did not identify his wife as a 16 witness with knowledge of his alleged emotional distress damages. He only 17 identified her as a person who knows what this lawsuit is about. See ECF No. 65-3
18 at 7. Under Rule 26(a), which governs initial disclosures, the initial disclosure of a 19 potential witness must contain, if known, the subjects of discoverable information 20 about which the potential witness may testify, “that the disclosing party may use to 21 support its claims or defenses.” See Fed. R. Civ. P. 26(a)(1)(A)(i). Thus, because 1 Plaintiff did not identify his wife as an individual with knowledge about his alleged 2 emotional distress damages during his deposition, Plaintiff did not provide 3 sufficient corrective information to relieve him of his obligation to amend his 4 initial disclosures. See Fed. R. Civ. P. 26(e)(1)(A).
5 C. Whether the Violation was Harmless or Substantially Justified 6 Having found that Plaintiff did not comply with Rule 26(a) or 26(e), the 7 Court considers whether Plaintiff’s discovery violation was harmless or
8 substantially justified. See Fed. R. Civ. P. 37(c)(1). Plaintiff suggests that the 9 error was harmless because (1) he mentioned his wife in his deposition testimony, 10 and (2) Defendants should have known that his wife was a witness with knowledge 11 of his emotional distress, given the nature of the case. Plaintiff asserts, “Defendant
12 knows the importance of taking the deposition of a named Plaintiff’s spouse, 13 particularly when she is disclosed as a witness with knowledge during Plaintiff’s 14 deposition.” ECF No. 65 at 3.
15 However, as the Ninth Circuit has found, an adverse party should not be 16 forced to speculate as to whether an undisclosed witness will provide testimony in 17 a case. See Ollier, 768 F.3d at 863. The Court finds that Plaintiff’s reasons do not
18 provide sufficient justification for his failure to disclose. 19 Additionally, the Court finds that Plaintiff’s discovery violation is not 20 harmless. Plaintiff submitted Ms. Russell’s declaration to provide corroborating 21 evidence of his actual damages, in opposition to Defendant’s Motion for Partial 1 Summary Judgment on his actual damages claim. Apart from his own declaration, 2 Plaintiff has provided no other evidence of his purported emotional distress. Due 3 to the subject of Ms. Russell’s testimony and the fact that she was not disclosed 4 until after the close of discovery and after Defendants filed their Motion for
5 Summary Judgment, the Court finds that Plaintiff’s failure to disclose his wife as a 6 witness is not harmless. 7 For the foregoing reasons, the Court finds that Plaintiff failed to comply with
8 Rule 26(a) and (e), and that failure was not harmless or substantially justified. See 9 Fed. R. Civ. P. 37(c). Therefore, in accordance with Rule 37(c), the Court grants 10 Defendant’s Motion to Strike Ms. Russell’s declaration. 11 II. Defendant’s Motion for Summary Judgment
12 A. Legal Standard 13 A court may grant summary judgment where “there is no genuine dispute as 14 to any material fact” of a party’s prima facie case, and the moving party is entitled to
15 judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 16 477 U.S. 317, 322–23 (1986). A genuine issue of material fact exists if sufficient 17 evidence supports the claimed factual dispute, requiring “a jury or judge to resolve
18 the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. 19 Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). A key purpose of 20 summary judgment “is to isolate and dispose of factually unsupported claims.” 21 Celotex, 477 U.S. at 324. 1 The moving party bears the burden of showing the absence of a genuine issue 2 of material fact, or in the alternative, the moving party may discharge this burden by 3 showing that there is an absence of evidence to support the nonmoving party’s prima 4 facie case. Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party
5 to set forth specific facts showing a genuine issue for trial. See id. at 324. The 6 nonmoving party “may not rest upon the mere allegations or denials of his pleading, 7 but his response, by affidavits or as otherwise provided . . . must set forth specific
8 facts showing that there is a genuine issue for trial.” Id. at 322 n.3 (internal 9 quotations omitted). 10 The Court will not infer evidence that does not exist in the record. See Lujan 11 v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). However, the Court will
12 “view the evidence in the light most favorable” to the nonmoving party. Newmaker 13 v. City of Fortuna, 842 F.3d 1108, 1111 (9th Cir. 2016). “The evidence of the non- 14 movant is to be believed, and all justifiable inferences are to be drawn in his favor.”
15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 16 B. Actual Damages under the FDCPA 17 Defendant has moved for summary judgment on Plaintiff’s claim for actual
18 damages, arguing that he has not provided evidence to support that claim. Actual 19 damages are available to plaintiffs under the FDCPA. 15 U.S.C. § 1692k(1). In 20 this case, Plaintiff has asserted a claim for actual damages based on emotional 21 distress and lost time. 1 Actual Damages for Emotional Distress 2 Neither the Supreme Court nor the Ninth Circuit have announced a standard 3 applicable to emotional distress damages under the FDCPA. See Hartung v. J.D. 4 Byrider, Inc., No. 1:08-cv-00960 AWI GSA, 2009 WL 1876690, at *6 (E.D. Cal.
5 June 26, 2009) (“[H]ow to interpret the ‘actual damage’ language [of the FDCPA] 6 with respect to emotional distress is a controversial issue that has not yet been 7 addressed by the Ninth Circuit.”). Some district courts have concluded that, to
8 prove emotional distress damages under the FDCPA, the plaintiff must meet the 9 relevant state law standard for intentional infliction of emotional distress (IIED). 10 Other courts “have applied a lower standard akin to that used in cases brought 11 under the Fair Credit Reporting Act (‘FCRA’), which has an ‘actual damages’
12 provision virtually identical to that of the FDCPA.” Perkons v. American 13 Acceptance, LLC, No. CV-10-8021-PCT-PGR, 2010 WL 4922916, at *3 (D. Ariz. 14 Nov. 29, 2010).
15 In Genschorck v. Sutttell & Hammer, P.S., a different judge in this district 16 concluded that plaintiffs need not meet the heightened, state law IIED standard in 17 order to prove emotional distress damages under the FDCPA. No. 12-CV-0615-
18 TOR, 2013 WL 6118678, at *4–5 (E.D. Wash. Nov. 21, 2013). The Court is 19 persuaded by the reasoning in Genschorck and can find no reason to apply a 20 heightened standard for actual damages under the FDCPA. Additionally, the 21 parties do not dispute the relevant standard. See ECF No. 61 at 9–10 and ECF No. 1 65 at 9. Accordingly, the Court finds that Plaintiff need not comply with 2 Washington IIED standards to prove his emotional distress damages under the 3 FDCPA. 4 Even accepting the less demanding standard, Defendant argues that the
5 Court should dismiss Plaintiff’s damages claim because it is not supported by any 6 “actual evidence.” ECF No. 61 at 2. Defendant maintains that Plaintiff cannot 7 support his damages claim with only his own, “self-serving” testimony. However,
8 Plaintiff’s deposition testimony is evidence that the Court considers on summary 9 judgment. Defendants have cited no binding precedent, and the Court has found 10 none, indicating that a plaintiff cannot oppose summary judgment on an FDCPA 11 claim for emotional distress damages by providing his or her own admissible
12 testimony. Defendant’s suggestion that Plaintiff’s testimony is insignificant 13 because it is “self-serving” implies that the Court should weigh the testimony by 14 considering Plaintiff’s bias in favor of his case when ruling on the instant motion
15 for summary judgment. Of course, the Court cannot weigh the credibility of any 16 witness on summary judgment. See S.E.C. v. Koracorp Indus., Inc., 575 F.2d 692, 17 699 (9th Cir. 1978).
18 Some district courts have found that plaintiffs alleging damages for 19 emotional distress under the FDCPA must provide some corroborative evidence of 20 their emotional distress, apart from their own testimony. See Perkons v. American 21 Acceptance, LLC, No. CV-10-8021-PCT-PGR, 2010 WL 4922916, at *3 (D. Ariz. 1 Nov. 29, 2010) (noting the citing cases). However, the Ninth Circuit has not 2 decided that issue. See id.; see also Hartung, 2009 WL 1876690, at *6. As no 3 binding precedent demands that the Court require corroborative evidence in 4 addition to Mr. Russell’s testimony, the Court will not impose such a requirement
5 here. 6 The Ninth Circuit “has generally stated that emotional distress damages can 7 be awarded without corroborative evidence where circumstances make it obvious
8 that a reasonable person would suffer significant emotional harm,” rather than 9 merely trivial or transient harm. See id. (citing In re Dawson, 390 F.3d 1139, 1150 10 (9th Cir. 2004) abrogated on separate grounds as recognized by In re Gugliuzza, 11 852 F.3d 884 (9th Cir. 2017)); see also Zhang v. American Gem Seafoods, Inc.,
12 339 F.3d 1020, 1040 (9th Cir. 2003) (explaining that plaintiff’s testimony alone 13 was “enough to substantiate the jury’s award of emotional distress damages”); 14 Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 513
15 (9th Cir. 2000) (“While objective evidence requirements may exist in other 16 circuits, such a requirement is not imposed by case law in either Washington, the 17 Ninth Circuit, or the Supreme Court.”).
18 In this case, Mr. Russell has no corroborating evidence of his emotional 19 distress, as the Court granted GC Service’s Motion to Strike Ms. Russell’s 20 declaration. Therefore, damages for emotional distress are appropriate only if the 21 1 “circumstances make it obvious that a reasonable person would suffer significant 2 emotional harm” when placed in Plaintiff’s position. 3 The Court finds that the evidence of record is insufficient to establish that a 4 reasonable person would have suffered significant emotional distress if put in
5 Plaintiff’s position, such that they would be entitled to actual damages for 6 emotional distress. None of the telephone conversations in this case exceeded four 7 minutes. See ECF No. 31-8 at 2. Additionally, the transcripts of those
8 conversations reveal that GC Services employees used professional language, 9 asked Mr. Russell if he would like to speak to a supervisor, made no threats 10 regarding the collection of the debt, and clearly identified themselves as employees 11 of GC Services attempting to collect a debt on behalf of Sprint. See ECF No. 32.
12 As part of his claim for emotional distress damages, Mr. Russell asserts that 13 he experienced potential reputational damage and humiliation due to the telephone 14 calls he received. However, Mr. Russell did not identify any person that overheard
15 any of the short calls placed by GC Services or recite how his reputation would 16 have been damaged when no third party overheard the calls. See ECF Nos. 63-2 17 and 63-3.
18 Liability is undisputed in this case. However, Mr. Russell has identified no 19 evidence showing that the circumstances surrounding GC Services’ 20 communication with him would cause a reasonable person to suffer significant 21 1 emotional harm. Therefore, no reasonable factfinder could conclude that Plaintiff 2 suffered significant emotional distress based on the evidence presented. 3 As Mr. Russell has not supported his claim of emotional distress with 4 sufficient evidence as a matter of law, summary judgment on his claim for actual
5 damages based on emotional distress is appropriate. 6 Lost Productive Time and Other Alleged Damages 7 Mr. Russell also seeks actual damages for lost economically productive
8 time. GC Services argues that Mr. Russell has produced no evidence to support 9 this claim. Upon review of the record, the Court agrees. Mr. Russell has not 10 submitted evidence illustrating that he lost economically productive time or 11 business opportunities due to GC Services’ actions.
12 Additionally, Mr. Russell asserts in his response to the instant motion that he 13 seeks damages for lost time in his personal life, arguing that his testimony supports 14 damages for “[b]eing forced to take time away from his family and his life to
15 consult an attorney to put an end to Defendant’s harassment.” ECF No. 65 at 16. 16 However, Mr. Russell has provided no evidence as to the amount of time that he 17 allegedly lost due to GC Services’ FDCPA violation. Moreover, undisputed
18 evidence on the record shows that none of GC Services’ calls exceeded four 19 minutes. Similarly, Mr. Russell does not support his claim that an attorney was 20 required to end the alleged harassment. In fact, the record shows that this lawsuit 21 1 was filed one month after GC Services made its final telephone call to Mr. Russell 2 on June 5, 2019. ECF No. 1-1 at 20. 3 Upon review of the record, the Court finds that Plaintiff has not provided 4 evidence to support his claim for actual damages under the FDCPA such that a
5 reasonable juror could find in his favor. Accordingly, summary judgment on 6 Plaintiff’s claim for actual damages pursuant to the FDCPA is appropriate.1 7 Accordingly, IT IS HEREBY ORDERED:
8 1. Defendant’s Motion for Partial Summary Judgment, ECF No. 61, is 9 GRANTED. 10 2. Defendant’s Motion to Strike the Declaration of Autumn Russell, which 11 is contained in Defendant’s briefing on its Motion for Partial Summary
12 Judgment, is GRANTED. 13 3. Plaintiff’s claim for actual damages pursuant to the FDCPA is 14 DISMISSED WITH PREJUDICE.
15 4. Pursuant to Fed. R. Civ. P. 54(b) and upon consideration of the record, 16 the Court finds that there is no just reason to delay in entering Judgment 17
18 1 The Court acknowledges that GC Services moved to strike some of 19 Plaintiff’s discovery responses as untimely. ECF 61 at 4 n. 2. As a decision on 20 that issue would not affect the Court’s ruling on the instant Motion for Partial 21 Summary Judgment, the Court declines to rule on that issue. 1 on Plaintiff’s claim for actual damages. Accordingly, the District Court 2 Clerk shall enter Judgment for Defendant on Plaintiff’s FDCPA claim 3 for actual damages. 4 5. The only remaining claim in this case is Plaintiff’s claim for statutory
5 damages under the FDCPA. 6 IT IS SO ORDERED. The District Court Clerk is directed to enter this 7 Order, enter Judgment consistent with this Order, and provide copies to counsel.
8 DATED August 4, 2020.
9 s/ Rosanna Malouf Peterson 10 ROSANNA MALOUF PETERSON United States District Judge 11 12 13 14 15 16 17 18 19 20 21