United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
JAMES B. CLARK, III, Magistrate Judge.
THIS MATTER comes before the Court by way of Plaintiff Carlos Orellana-Sanchez's ("Plaintiff" or "Orellana-Sanchez") Motion for Summary Judgment (Dkt. No. 54) and Defendants Pressler and Pressler, LLP ("Pressler") and New Century Financial Services, Inc.'s ("New Century") (collectively "Defendants") Cross-Motion for Summary Judgment (Dkt. No. 55). Pursuant to Local Civil Rule 72.1(a)(2), the Honorable Faith S. Hochberg, U.S.D.J., referred the Motion to the Undersigned for Report and Recommendation. The Court has considered the motions without oral argument pursuant to Federal Rule of Civil Procedure 78. Having considered the parties' written submissions, for good cause shown, and for the reasons set forth herein, the Undersigned respectfully recommends that the District Court DENY Plaintiff's Motion for Summary Judgment and GRANT Defendants' Motion for Summary Judgment.
The parties stipulated and agreed to the following facts for the purposes of filing motions for summary judgment. (Dkt. No. 16, "SJ Stip."). Plaintiff is a consumer, as defined by 15 U.S.C. § 1692a(3). (SJ Stip., at ¶1). Defendants Pressler and New Century are "debt collectors" as defined by 15 U.S.C. § 1692a(6). (SJ Stip., at ¶2). On February 4, 2006, Plaintiff, while residing in Phoenix, Arizona, opened a T-Mobile account (the "Account") ending in "2193". (SJ Stip., at ¶¶3, 5, 8). Plaintiff did not sign any contract creating the Account in Middlesex County, New Jersey. (SJ Stip., at ¶4). The last payment on the Account was made on November 27, 2006. (SJ Stip., at ¶8). On March 5, 2007, the Account was written-off for nonpayment with a principal of $425.55. (SJ Stip., at ¶8). On or about August 9, 2011, New Century, a buyer of distressed debt, "acquired a portfolio of defaulted accounts from Debt Recovery Solutions which included the Account" in the name of Plaintiff. (SF Stip., at ¶7). When New Century acquired the Account debt, the address associated with the Account was 122 Ridgeley Ave., Iselin, N.J. 08830. (SJ Stip., at ¶8). Immediately, the Account was referred to Pressler, New Century's collection counsel, to initiate collection activity. (SJ Stip., at ¶9).
On August 18, 2011, Pressler sent an "Initial Notice Letter" via regular mail to Plaintiff at 122 Ridgeley Ave., Iselin, N.J. 08830. (SJ Stip., at ¶10). Plaintiff did not respond to this letter and the letter was not returned to Pressler as undeliverable. (SJ Stip., at ¶11). Plaintiff only resided at the aforementioned address from May 2009 to January 2010. (SJ Stip., at ¶12). From January 2010 to the present, Plaintiff resided in Hudson County at 78 Williams Ave., Apt. 2, Jersey City, N.J. 07302. (SJ Stip., at ¶13). Plaintiff did not notify T-Mobile as to either of his address changes. (SJ Stip., at ¶¶12-13).
On October 25, 2011, Pressler filed a Summons and Complaint titled New Century Financial Services, Inc. v. Carlos Orellana-Sanchez, No. DC-022877-11, in the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County ("Middlesex County Action"). (SJ Stip., at ¶14). On October 31, 2011, the Middlesex County Special Civil Part's office mailed the Summons and Complaint to Plaintiff at 122 Ridgeley Ave., Iselin, N.J. 08830. (SJ Stip., at ¶¶15-16). The certified mail receipt for the Summons and Complaint, however, was returned in a manner indicating service was not effectuated on Plaintiff. (SJ Stip., at ¶17 and Ex. D). A copy of the certified mail receipt has "UTF" written on it. (SJ Stip., at Ex. D). On November 10, 2011, Pressler received notice from the Middlesex County Special Civil Part that the Summons and Complaint were not served because the mail was returned as "ADDRESSEE UNKNOWN." (SJ Stip., at ¶18 and Ex. E). On November 11, 2011, Pressler ran an Accurint report based upon Plaintiff's social security number which identified a new address for Plaintiff as 78 Williams Ave., Apt. 2, Jersey City, N.J. 07302. (SJ Stip., at ¶19).
On December 13, 2011, Pressler received a letter from Plaintiff's counsel, dated December 8, 2011, claiming violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"). (SJ Stip., at ¶20). On December 19, 2011, Pressler filed a request to change venue along with an Amended Complaint and a new Summons. (SJ Stip., at ¶21). Pressler then requested service of the Amended Complaint and Summons to be sent to Plaintiff at 78 Williams Ave., Apt. 2, Jersey City, N.J. 07304. (SJ Stip., at ¶22). On December 27, 2011, a Notification of Transfer was issued by the Court transferring the action to the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County ("Hudson County Action"). (SJ Stip., at ¶23). On January 9, 2012, the Hudson County Special Civil Part served the Summons and Amended Complaint. (SJ Stip., at ¶24). The certified mail receipt that was returned to Hudson County Special Civil Part was signed for on January 11, 2012. (SJ Stip., at ¶25).
On October 5, 2012, Plaintiff filed the instant complaint. (Dkt. No. 1). New Century filed its answer on November 11, 2012. (Dkt. No. 6). Pressler filed its answer on November 26, 2012. (Dkt. No. 12). On April 29, 2014, the parties jointly submitted a Stipulation of Facts and Exhibits for Summary Judgment Motion ("SJ Stip."). (Dkt. No. 16). On April 30, 2013, a status conference was held by the Court wherein a briefing schedule was set for summary judgment motions. (Dkt. No. 17). On June 7, 2013, Plaintiff filed its initial summary judgment motion. (Dkt. Nos. 19, 20). On June 20, 2013, Defendants jointly filed their initial summary judgment motion. (Dkt. No. 21). The briefing for both summary judgment motions was completed by July 8, 2013. On November 7, 2013, the Court entered an Order referring this case to Arbitration. (Dkt. No. 42). On November 12, 2013 the Court administratively terminated the parties' initial summary judgment motions. (Dkt. No. 43). On November 26, 2013, Plaintiff filed a motion to reconsider the Court's order referring the case to arbitration. (Dkt. No. 49). On December 6, 2013, the Court vacated the order and instead ordered the parties to mediation. (Dkt. No. 51). The parties were unsuccessful in mediation, and on May 27, 2014, the parties filed a joint motion to re-file summary judgment motions. (Dkt. No. 52). On June 5, 2104, the Court granted that motion. (Dkt. No. 53). Both parties cross-moved for summary judgment. (Dkt. Nos. 54, 55).
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(c), a motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, "summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988). All facts and inferences must be construed in the light most favorable to the nonmoving party. Peters v. Del. River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994). The judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. "Consequently, the court must ask whether, on the summary judgment record, reasonable jurors could find facts that demonstrated, by a preponderance of the evidence, that the nonmoving party is entitled to a verdict." In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 860 (3d Cir. 1990).
The party seeking summary judgment always bears the initial burden of production. Celotex, 477 U.S. at 323. This burden requires the moving party to establish either that there is no genuine issue of material fact and that the moving party must prevail as a matter of law, or to demonstrate that the nonmoving party has not shown the requisite facts relating to an essential element of an issue on which it bears the burden. Id. at 322-23. This burden can be "discharged by showing... that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the party seeking summary judgment has carried this initial burden, the burden shifts to the nonmoving party. Id.
To avoid summary judgment, the nonmoving party must then demonstrate facts supporting each element for which it bears the burden, thus establishing the existence of a "genuine issue of material fact" justifying trial. Miller, 843 F.2d at 143; accord Celotex, 477 U.S. at 324. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Id. at 587 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
On cross-motions for summary judgment, "[e]ach movant must show that no genuine issue of material fact exists; if both parties fail to carry their respective burdens, the court must deny the motions." See Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d Cir. 2008). In the case at bar, the parties submitted a Stipulation of Facts for their respective motions. The stipulation is intended to serve as the L. Civ. R. 56.1 Statement of Material Facts Not in Dispute supporting the instant motions. Accordingly, for purposes of ...