United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Defendants' Motion
for Summary Judgment [#101], Plaintiff Joseph Ozmun's
Response [#103] in opposition, and Defendants' Reply
[#106] in support as well as Plaintiff s Motion to Strike
[#104], Defendants' Response [#105] in opposition, and
Plaintiff s Reply [#112] in support. Having reviewed the
documents, the relevant law, and the file as a whole, the
Court now enters the following opinion and orders.
On August 3, 2016, Plaintiff filed the initial lawsuit in
this action, alleging Defendants RSIEH, Travelers Casualty
and Surety Company of America (Travelers), Portfolio Recovery
Associates, LLC (PRA), and Western Surety Company (Western)
violated the Fair Debt Collection Practices Act (FDCP A),
15U.S.C. § 1692 etseq., and the Texas Debt
Collection Act (TDCA), Tex. Fin. Code § 392.001
etseq. Compl. [#1]. The Court previously summarized
the facts underlying the initial lawsuit when it ruled on
Defendants' first motion for summary judgment, and the
Court incorporates that earlier factual summary here.
See Order of July 24, 2017 [#79].
July 24, 2017 order, the Court granted in part and denied in
part Defendants' first motion for summary judgment.
Id. Although the Court granted summary judgment for
Defendants on Plaintiffs TDCA claims because Plaintiff lacked
standing, the Court found fact issues precluded summary
judgment on Plaintiff's FDCPA claims. Id.
before this Court entered its first summary judgment order,
Plaintiff filed two additional lawsuits against PRA as well
as Hartford Casualty Insurance Company (Hartford). Plaintiffs
allegations in the two lawsuits are identical except each
references a different credit card debt. See Compl.
[#1] ¶ 14, Ozmun v. Portfolio Recovery
Associates, No. 1:17-cv-0064 (alleging PRA
misrepresented a credit card debt with an account number
beginning in 499410); Compl. [#1] ¶ 14, Ozmun v.
Portfolio Recovery Associates, No. 1:17-cv-0065
(alleging PRA misrepresented a credit card debt with an
account number beginning in 210720). The two later-filed
cases assert PRA misrepresented the 499410 debt and the
210720 debt by failing to indicate these debts were disputed
to a credit reporting agency. Id. The FDCPA and TDCA
claims surrounding the alleged misrepresentation to a credit
reporting agency in the later-filed cases are the same as
those claims from the initial lawsuit except Plaintiff added
requests for injunctive relief to his TDCA claims in the
two-later filed cases. See id.; see also PL's
Resp. [#103] at 7-9. On September 28, 2017, the Court
consolidated the two-later filed cases into this action.
Order of Sept. 28, 2017 [#13], No. 1:17-cv-0064.
now move, for a second time, for summary judgment. Plaintiff
subsequently filed a motion to strike portions of
Defendants' summary judgment motion and corresponding
exhibits. Both motions are now ripe for a decision.
Motion to Strike
Court denies Plaintiffs motion to strike. In his motion to
strike, Plaintiff complains Defendants make unsupported
allegations against Plaintiffs counsel and seeks to strike
those statements and corresponding exhibits. See
Mot. Strike [#104]. The problematic allegations include
statements Plaintiff s counsel violated rales of professional
conduct and fabricated Plaintiffs dispute of the Debt.
in reviewing their statements in context of the motion for
summary judgment, the Court finds Defendants provided some
support for their allegations. See Second Mot. Summ.
J. [#101]. In fact, although Plaintiff claims Defendants make
unsupported allegations, Plaintiff seeks to strike the very
exhibits Defendants use to support their allegations.
Moreover, the allegations relate to issues at the center of
this lawsuit. Most significantly, the material Plaintiff
seeks to strike is relevant to a remaining fact issue this
Court previously identified: whether Plaintiff actually
disputed the Debt when the Debt letter was sent to PRA.
See Order of July 24, 2017 [#79] at 16. As
"motion[s] to strike should be granted only when the
pleading to be stricken has no possible relation the
controversy[, ]" the Court denies Plaintiff s motion to
strike. See United States v. Coney, 689 F.3d 365,
379 (5th Cir. 2012) (quotation omitted).
Motion for Summary Judgment
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S.317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio,475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. Further, a ...