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Christy v. Markem Financial Services, Inc.

United States District Court, D. Nevada

July 10, 2015

DUANE CHRISTY, an individual, on behalf of himself and those similarly situated, Plaintiff,
v.
MARKEM FINANCIAL SERVICES, INC, a Nevada Corporation, Defendant.

ORDER DENYING MARKEM’S MOTION FOR SUMMARY JUDGMENT (DOC. 21)

JENNIFER A. DORSEY, UNITED STATES DISTRICT JUDGE

Defendant Markem Financial Services moves for summary judgment against plaintiff Duane Christy, who claims that a letter Markem mailed him with the words “Markem Financial Services Inc. Contract Collection Dept” on the envelope violates § 1692(F) of the Fair Debt Collection Practices Act (“Debt Collection Act”). The section prohibits a debt collector from “using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram.”[1] Markem argues that it was acting as an escrow agent-not a debt collector-when it sent the letter and is therefore exempt from the Debt Collections Act under 15 U.S.C § 1692(F)(i).

But none of the evidence Markem submits to support this argument or any other of its arguments[2] has been properly authenticated. In Orr v. Bank of America, the Ninth Circuit “made it clear that ‘unauthenticated documents cannot be considered in a motion for summary judgment.’”[3]The absence of authenticated evidence leaves Markem unable to demonstrate the absence of genuine issues of material fact-its burden on summary judgment.[4] I therefore exercise my discretion to deny Markem’s motion, having no admissible evidence showing me that Markem is entitled to judgment as a matter of law. But I will give Markem until August 8, 2015, to resubmit its motion with properly authenticated evidence.[5] I offer the following guidance to both parties, since Christy, too, failed to properly authenticate the evidence he submitted.[6]

To authenticate documents, a party must offer “evidence sufficient to support a finding that the matter in question is what the [party] claims.”[7] Because the summary judgment procedure is the pretrial functional equivalent of a directed-verdict motion, it requires consideration of the same caliber of evidence that would be admitted at trial;[8] it is insufficient for a litigant to merely attach a document to a summary judgment motion or opposition without affirmatively demonstrating its authenticity.

This demonstration can happen in two ways: (1) through the personal knowledge of a party who attests that the document is what it purports to be; or (2) any other manner permitted by Federal Rules of Evidence 901(b) (which provides ten methods of authentication) or 902 (identifying self-authenticating documents that “require no extrinsic evidence of authenticity in order to be admitted”).[9] Documents authenticated through personal knowledge must be attached to an affidavit signed by a person with personal knowledge about the document-such as the drafter or signer of the document, or the custodian of the document kept in the ordinary course of a business, depending on the type of document and its particular relevance-or to properly authenticated deposition testimony in which the same information was elicited.[10]

Neither party followed either of these procedures. Both are advised to if they decide to again move for or oppose summary judgment.

Conclusion

Accordingly, IT IS HEREBY ORDERED that Markem’s Motion for Summary Judgment (Doc. 21) is DENIED. Markem has until August 8, 2015, to refile its motion with properly authenticated evidence.


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