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Smith v. Greystone Alliance, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 15, 2015

TARA SMITH, Plaintiff,


THOMAS M. DURKIN, District Judge.

Tara Smith alleges that Greystone Alliance, Inc., violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., when Greystone (1) left her voicemail messages about a debt and failed to disclose that Greystone was a debt collector (Count I alleging violations of §§ 1692e and 1692f); (2) communicated with a third party about Smith's debt (Count II alleging violation of § 1692c(b)); (3) harassed Smith about the debt (Count II alleging violation of § 1692d); and (4) used deceptive means to attempt to convince Smith to pay the debt (Count II alleging violation of § 1692e). See R. 1. Smith seeks both statutory and actual damages. Id. at 5. On March 29, 2011, the Court (1) granted summary judgment to Greystone on Smith's § 1692f claim in Count I; (2) granted summary judgment to Smith on her § 1692e claim in Count I; and (3) denied summary judgment to both parties on Count II. See R. 104 (2011 WL 1303377 (N.D. Ill. Mar. 29, 2011) (Hibbler, J.)). The Court subsequently denied Greystone's motion for reconsideration. See R. 112 at 7-8 (2011 WL 2160886, at *4 (N.D. Ill. May 27, 2011) (Hibbler, J.)).[1]

After the case was reassigned to the undersigned Judge, Greystone moved to dismiss both Counts I and II pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that settlement offers Greystone made to Smith during the course of the litigation mooted her claims and deprived the Court of subject-matter jurisdiction. R. 178. The Court granted that motion, see R. 194 (2014 WL 1097701 (N.D. Ill. Mar. 20, 2014)), and in the course of that ruling the Court also held that "Smith's allegations and testimony are insufficient to establish that she suffered any actual emotional damages." R. 194 at 7 (2014 WL 1097701, at *3). The Seventh Circuit reversed. See R. 208 (772 F.3d 448 (7th Cir. 2014)).

Greystone has now again moved for summary judgment on the claims Judge Hibbler previously addressed. See R. 241. At the motion hearing on April 7, 2015, Smith argued that such a motion was foreclosed by Judge Hibbler's earlier grant of summary judgment to Smith on Count I and denial of summary judgment as to both parties on Count II. See R. 247 at 4. The Court permitted Smith to file a "motion to strike" Greystone's motion for summary judgment that would permit the Court to decide "the preclusive effects of Judge Hibbler's [earlier] orders, " because a ruling on that issue has the potential to obviate the need to address the substance of Greystone's renewed summary judgment motion. See id. at 7. Smith filed the motion contemplated at the April 7 hearing on April 30, 2015. R. 245. For the following reasons, Smith's motion is granted in part and denied in part.

Legal Standard

"[T]he law of the case doctrine embodies the notion that a court ought not to re-visit an earlier ruling in a case absent a compelling reason, such as manifest error or a change in the law, that warrants re-examination." Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007). "The presumption against reopening matters already decided.... holds when a case is reassigned from one judge to another." Id.

To the extent it is relevant to determining whether there is a compelling reason to revisit Judge Hibbler's summary judgment orders, the Court notes that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court considers the entire evidentiary record and must view all of the evidence and draw all reasonable inferences from that evidence in the light most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013). To defeat summary judgment, a nonmovant must produce more than "a mere scintilla of evidence" and come forward with "specific facts showing that there is a genuine issue for trial." Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013). Ultimately, summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).


Smith argues that Judge Hibbler's prior orders are the law of the case and foreclose Greystone's renewed summary judgment motion. See R. 245. Greystone argues that the Court should reexamine Judge Hibbler's orders because he erred in granting summary judgment to Smith with respect to her § 1692e claim in Count I, and in denying summary judgment to Greystone with respect to Smith's § 1692c(b) and § 1692d claims in Count II. See R. 246. Greystone also argues that it should be permitted to move for summary judgment with regard to Smith's ability to seek actual damages. Id. at 15.

A. Claim Under § 1692e

Under 15 U.S.C. § 1692e, a "debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." Specifically, debt collectors violate this section if they "fail[] to disclose in the initial written communication... [or] oral communication, that the debt collector is attempting to collect a debt... [and] in subsequent communications that the communication is from a debt collector." Id. § 1692e(11). To succeed on a claim under § 1692e, a plaintiff must prove that the debt collector's statement was false or misleading and material. See Hahn v. Triumph P'ships, 557 F.3d 755, 757 (7th Cir. 2009). "Courts routinely employ a least sophisticated debtor' standard when deciding if debt collection violates the FDCPA." Jensen v. Pressler & Pressler, 2015 WL 3953754, at *3 (7th Cir. June 30, 2015).

In Count I, Smith alleges that Greystone violated § 1692e because Greystone left her a voicemail that did not "disclose that the message [was] from a debt collector." R. 1 ¶ 21. In litigating the cross summary judgment motions before Judge Hibbler, Greystone admitted that it left the following voicemail for Smith on August 14, 2009:

Good evening. This is a message intended for Ms. Tara Smith. Tara, my name is Mr. Garner, and I represent the office of Greystone Alliance. I've been asked to get in contact with you in regards to a file that's been placed in my office for my review. I would like to take some time to talk to you about it. If you have legal counsel, I'll gladly talk to them. My telephone number that you can reach me is XXX-XXX-XXXX, extension 2018. Again, my name is Mr.
Garner. You can call a toll-free number if you need to; it is 1-877-789-1770. I am in Buffalo, New York, so I'm on Eastern time. I do ...

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