SCOTT B. HUTCHINSON, Plaintiff,
COMMERCIAL RECOVERY SYSTEMS, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
SIDNEY A. FITZWATER, Chief District Judge.
In this suit by pro se plaintiff Scott B. Hutchinson ("Hutchinson") alleging violations, inter alia, of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"), Hutchinson moves for summary judgment and for appointment of a receiver. Defendants move for leave to respond to Hutchinson's summary judgment motion and to strike summary judgment evidence on which Hutchinson relies. Hutchinson objects to defendants' summary judgment response. For the reasons that follow, the court denies Hutchinson's summary judgment motions and his objection to defendants' summary judgment response, and it denies his motion for appointment of a receiver. The court denies as moot defendants' motion for leave to file response to motion for summary judgment and their motion to strike plaintiff's summary judgment evidence.
The court turns first to the motions related to Hutchinson's motions for summary judgment.
Hutchinson filed a motion for summary judgment on June 24, 2013. On July 11, 2013 defendants notified the court that the parties were finalizing a settlement agreement and would file a stipulation of dismissal when the agreement was completed. The court directed the clerk of court to close the case statistically for administrative purposes. On September 12, 2013 Hutchinson moved to reopen the case, alleging that defendants had breached their obligations under the settlement agreement. The court granted the motion on September 26, 2013. On September 12, 2013 (the same day he moved to reopen the case) Hutchinson filed a "request for entry of summary judgment" that effectively asks the court to treat his June 24, 2103 motion for summary judgment as unopposed and to grant the motion. As noted, see supra note 1, Hutchinson filed on September 13, 2013 what appears to be a duplicate of the September 12, 2013 motion. Defendants filed on October 3, 2013 a motion for leave to file a response to the June 24 motion and filed their response the same day. On October 3, 2013 Hutchinson filed an objection to defendants' summary judgment response. On October 23, 2013 defendants filed a motion to strike Hutchinson's summary judgment evidence.
Hutchinson's summary judgment motions are procedurally defective in various respects. N.D. Tex. Civ. R. 56.3(a)(1)-(2) provides that "a motion for summary judgment must... on the first page, under the heading summary, ' state concisely the elements of each claim or defense as to which summary judgment is sought, " and "if the motion is accompanied by an appendix and it is necessary to cite support for an assertion about the absence or presence of a genuine dispute of fact, comply with [Rule] 56.5(c))." Rule 56.3(d) provides that "[a] motion for summary judgment must not contain argument and authorities." Under Rule 56.3(b), a party moving for summary judgment "may satisfy the requirements of [Rule 56.3(a)]... by stating in its motion that each of the required matters will be set forth in the party's brief." If the party seeking summary judgment chooses to file a brief, the brief must comply with relevant portions of Rules 56.3, 56.4, 56.5 and 56.6. See Rule 56.5(a)-(c).
Rule 56.5(c) provides that "[w]hen citing materials in the record... a party must support each assertion by citing each relevant page of its own or the opposing party's appendix." The appendix must be numbered, formatted, and cited as described in Rule 56.6. When a party relies on non-documentary materials, such as audio recordings, the party must "include [the exhibits] in the appendix" by "plac[ing] [them] in an envelope that measures 9 × 12 inches." Rule 56.6(b)(2). The envelope "must be numbered as if it were a single page." Rule 56.6(b)(3).
Hutchinson's motions do not contain an adequate summary. The summary contained in his June 24, 2013 motion alleges that defendant Commercial Recovery Systems, Inc. ("CRS") engaged in prohibited collection practices, but it does not contend, for instance, that the evidence establishes beyond peradventure (the applicable summary judgment standard) that CRS violated the statutory and common law provisions that form the basis of his motion. Cf. Page v. UNUM Life Ins. Co. of Am., 1999 WL 1000493, at *1 & n.2 (N.D. Tex. Nov. 3, 1999) (Fitzwater, J.) (describing appropriate summary). He presents arguments and authorities in his motion for summary judgment instead of in a supporting brief. Hutchinson references various recordings that he alleges demonstrate his right to summary judgment, but he fails to include the recordings in an evidence appendix. In fact, he has neither provided the court with an appendix (and thus has not properly cited the appendix) nor specifically cited his attached affidavit.
This court has recognized that "[d]istrict courts can make appropriate allowances for pro se [summary judgment] responses that may be somewhat less-artfully written than those of represented parties." Bookman v. Shubzda, 945 F.Supp. 999, 1005 (N.D. Tex. 1996) (Fitzwater, J.). But even if the court relaxes the summary judgment briefing requirements to account for Hutchinson's pro se status, he is obligated, even as a pro se litigant, to comply with substantive obligations, such as the requirements that he address the correct summary judgment standard and present evidence that is sufficient to demonstrate his right to summary judgment under that standard. The defects that the court has identified include such substantive deficiencies as well as procedural ones.
Additionally, although Hutchinson states that he is moving for summary judgment on claims that CRS violated the FDCPA, the Texas Debt Collection Act, the Texas Deceptive Trade Practices-Consumer Protection Act, and the Common Law Invasion of Privacy Act, Hutchinson's arguments focus solely on the FDCPA claim. Were the court to consider the motion on the merits, it would treat it as a motion for partial summary judgment. See Charles v. Allcorn, 1998 WL 892303, at *1 n.2 (N.D. Tex. Dec. 11, 1998) (Fitzwater, J.). But Hutchinson would then have used up the ...