United States District Court, D. Maryland
Xinis United States District Judge.
before the Court is Defendant Amsher Collection Services,
Inc. (“Amsher”)'s motion for summary
judgment. ECF No. 19. The motion is fully briefed, and no
hearing is necessary. See Loc. R. 105.6. For the
reasons that follow, the Court denies in part and grants in
part Amsher's motion.
2012, Plaintiff Jim Gray closed his account with T-Mobile
USA, Inc. (“T-Mobile”). ECF No. 19-5 at 24.
However, according to T-Mobile, Gray had two additional
T-Mobile accounts, referred to here as the -8476 Account and
the -7782 Account. ECF No. 19-4 ¶ 4. Gray asserts that
the additional accounts were opened fraudulently.
See ECF No. 19-5 at 10; ECF No. 19-6 at 17.
at a time unknown to the Court, Gray's personal
information was stolen. See ECF No. 2-1 at 9
(undated letter from the United States Office of Personnel
Management stating that a cyber intrusion stole Gray's
“Social Security Number and other personal
information”). The additional accounts each became
delinquent. Id. ¶¶ 5, 8. In 2015, T-Mobile
placed the -8476 Account with a third-party for collection.
Id. ¶ 5. Eventually, Gray and T-Mobile entered
into a Settlement Agreement that resolved the dispute over
the -8476 Account without any admission of liability. ECF No.
19-4 at 5.
March 2017, T-Mobile placed the -7782 Account in collection
status. ECF No. 19-4 ¶ 8. Gray disputed the debt with
credit reporting agencies, and the agencies in turn notified
Amsher of the dispute. ECF No. 19-6 ¶ 6. The day of
notification, Amsher confirmed with T-Mobile that the debt
was “due and owing.” Id. ¶ 7.
then called Amsher directly to dispute the debt. Id.
¶ 8. Although the -7782 Account had Gray's name,
date of birth, and social security number, Gray informed
Amsher that the account's Florida address did not match
his Maryland address. ECF No. 19-6 at 17. The account also
had an authorized user, Haj Malika (phonetic), whose name
Gray did not recognize. Id. During the call, Amsher
acknowledged that Gray believed the account was opened
fraudulently. Id. However, the bulk of the call
focused on whether the 2015 settlement agreement covered the
-7782 Account. Id. Gray insisted that the settlement
agreement resolved both debts, despite clear language on the
face of the agreement that confined the settlement only to
the -8476 Account. After speaking with Gray, Amsher marked
the account as disputed. ECF No. 19-6 ¶ 9. One week
later, Amsher ceased trying to collect the debt. Id.
events adversely affected Gray's credit score, and
several institutions denied him credit. In October 2017,
Credit Acceptance denied Gray vehicle financing. ECF No. 19-5
at 19. In November 2017, Gray's application for bank
credit was denied. ECF No. 2-1 at 6. Finally, in January
2018, Veterans United denied Gray a home loan
prequalification. ECF No. 19-5 at 16. Gray alleges-although
he does not submit evidence, via affidavit or otherwise-that
the home loan was “needed as housing requirement for
gaining custody” of his two children. ECF No. 15 at 2.
February 2018, Gray, proceeding pro se, filed suit against
Amsher in the Circuit Court for Prince George's County,
Maryland, alleging violations of the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681 et
seq., the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et
seq., and 18 U.S.C. § 875. ECF No. 2. Amsher then
removed the case to this Court, and, after Gray amended his
Complaint, Amsher moved for summary judgment. ECF Nos. 1, 15,
Standard of Review
judgment is appropriate when the Court, viewing the evidence
in the light most favorable to the non-moving party, finds no
genuine disputed issue of material fact, entitling the movant
to judgment as a matter of law. See Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th
Cir. 2008). “A party opposing a properly supported
motion for summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings,' but rather
must ‘set forth specific facts showing that there is a
genuine issue for trial.'” Bouchat v. Baltimore
Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)). “A mere
scintilla of proof . . . will not suffice to prevent summary
judgment.” Peters v. Jenney, 327 F.3d 307, 314
(4th Cir. 2003). Importantly, “a court should not grant
summary judgment ‘unless the entire record shows a
right to judgment with such clarity as to leave no room for
controversy and establishes affirmatively that the adverse
party cannot prevail under any circumstances.'”
Campbell v. Hewitt, Coleman & Assocs.,
Inc., 21 F.3d 52, 55 (4th Cir. 1994) (quoting
Phoenix Sav. & Loan, Inc. v. Aetna Casualty &
Sur. Co., 381 F.2d 245, 249 (4th Cir. 1967)). Where the
party bearing the burden of proving a claim or defense
“fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial, ” summary judgment against that party is
likewise warranted. Celotex, 477 U.S. at 322.
the discovery period has not closed, Gray did not file an
affidavit pursuant to Rule 56(d) of the Federal Rules of
Civil Procedure. The purpose of a Rule 56(d) affidavit is to
ascertain what additional discovery is needed for the
non-movant to challenge adequately a summary judgment motion.
See Fed. R. Civ. P. 56(d). “The Fourth Circuit
places ‘great weight' on the affidavit
requirement.” Nautilus Ins. Co. v. REMAC Am.,
Inc., 956 F.Supp.2d 674, 683 (D. Md. 2013) (quoting
Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)). However, non-compliance may
be excused “if the nonmoving party has adequately
informed the district court that the motion is premature and
that more discovery is necessary.” Harrods Ltd. v.
Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir.
2002). Courts place greater weight on the need for discovery
“when the relevant facts are exclusively in the control
of the opposing party.” Id. (quoting 10B
Wright, Miller & Kane, Federal Practice &
Procedure § 2741, at 419 (3d ed. 1998)) (internal
quotation marks omitted).
did not file a formal Rule 56(d) affidavit, but he has
identified relevant, particular information that he could
receive through further discovery. ECF No. 21 at 1-2. For
example, Gray has alerted the Court that he seeks billing
records for the -7782 Account, which may demonstrate that
Gray did not personally incur the debt. Id. at 2.
Thus, the Court will permit further discovery on the
surviving claims, potentially to include a third-party
subpoena on T-Mobile. See Chaplick v. Mao, No.
TDC-13-2070, 2016 WL 4516061, at *4 (D. Md. Aug. 25, 2016)
(approving of further discovery and a second set of summary
judgment motions after first motions were denied).