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Scriveners Error

Scriveners Error

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Published by southfllawyers

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Published by: southfllawyers on Jun 11, 2010
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08/04/2010

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDACASE NO. 09-81207-CIV-MARRA/JOHNSONMARTIN MCDERMOTT,Plaintiff,v.I.C. SYSTEM, INC.,Defendant./
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARYJUDGMENTTHIS CAUSE
is before the Court upon Plaintiff’s Motion for Summary Judgment (DE 8),filed February 1, 2010. The Court has reviewed Plaintiff’s motion, Defendant’s response, and therecord and is otherwise fully advised in the premises.
I.
The facts, as culled from affidavits, exhibits, depositions, answers, answers to interrogatoriesand reasonably inferred therefrom, for the purpose of this motion, are as follows:Martin McDermott (“Plaintiff”) alleges that I.C. System, Inc. (“Defendant”) violated theFlorida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. §§ 559.55 - 559.785 (2003), andthe Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 (1986), in attempting to collectapproximately four thousand dollars which Plaintiff owed to Washington Mutual. (DE 8, Mot. for Summ. J. 3.) Plaintiff alleges that Defendant has called him to the point of harassment — six toseven times a day — in an effort to secure the alleged debt. (Mot. Ex. C.,
 see
McDermott Aff. ¶ ¶1, 3.) Plaintiff further alleges that Defendant threatened to file a lawsuit against him, and even called
Case 9:09-cv-81207-KAM Document 17 Entered on FLSD Docket 06/10/2010 Page 1 of 6
 
2
him at or about 9:30 p.m. on “Easter Sunday” to collect.
 
(McDermott Aff. ¶ ¶ 2, 4, 6, 7.)On January 14, 2010, Defendant served Plaintiff with its answers to Plaintiff’sinterrogatories. (Mot.
 
Ex. B.) Interrogatory thirteen asked “[w]hy did Defendant call Plaintiff onEaster Sunday at 9:30 pm?” Defendant responded by admitting that “Defendant
did 
call Plaintiff on Easter Sunday at 9:30 pm.”
 Id 
.
 
Defendant’s response to interrogatory thirteen is the basis for Plaintiff’s motion for summary judgment. (Mot. ¶ 7.)Defendant contends, however, that Plaintiff’s motion should be denied because theinterrogatory answer on which it is based is a scrivener’s error. (DE 12, Resp. to Plaintiff’s Mot. ¶ ¶ 5, 6.) Pointing to its Amended Answers to Plaintiff’s Interrogatories and other repeated denials of the substance of the allegations of the complaint, Defendant asserts that its response to interrogatorynumber thirteen should have read “Defendant did not call Plaintiff on Easter Sunday at 9:30 pm.”(Resp. Ex. B.) For the reasons set forth below, this Court agrees that summary judgment should not be granted.
II.
The Court may grant summary judgment “if the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving party is entitled to a judgment as amatter of law.” F
ED
.
 
R.
 
C
IV
.
 
P.
 
56
 
(c). The stringent burden of establishing the absence of agenuine issue of material fact lies with the moving party.
Celotex Corp. v. Catrett 
, 477 U.S. 317,323 (1986). Accordingly, the Court should not grant summary judgment unless it is clear that atrial is unnecessary,
 Anderson v. Liberty Lobby, Inc.
, 477 U.S. 242, 255 (1986), and any doubtsin this regard should be resolved against the moving party.
 Adickes v. S.H. Kress & Co.
, 398
Case 9:09-cv-81207-KAM Document 17 Entered on FLSD Docket 06/10/2010 Page 2 of 6
 
3
U.S. 144, 157 (1970).The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate theabsence of a genuine issue of material fact.”
Celotex Corp.
, 477 U.S. at 323. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support thenonmoving party’s case.
 Id 
. at 325.After the movant has met its burden under Rule 56 (c), the burden of production shiftsand the nonmoving party “must do more than simply show that there is some metaphysical doubtas to the material facts.”
 Matsushita Electronic Industrial Co. v. Zenith Radio Corp.
, 475 U.S.574, 586 (1986). According to the plain language of F
ED
.
 
R.
 
C
IV
.
 
P.
 
56
 
(e), the non-moving party “may not rest upon the mere allegations or denials of the adverse party’s pleadings,” butinstead must come forward with “specific facts showing that there is a genuine issue for trial.”F
ED
.
 
R.
 
C
IV
.
 
P.
 
56 (e);
 Matsushita
, 475 U.S. at 587.Essentially, so long as the non-moving party has had an ample opportunity to conductdiscovery, it must come forward with affirmative evidence to support its claim.
 Anderson
, 477U.S. at 257. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will notsuffice; there must be a sufficient showing that the jury could reasonably find for that party.”
Walker v. Darby
, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the non-moving party “is merely colorable, or is not significantly probative, then summary judgment may be granted.”
 Anderson
, 477 U.S. 242, 249-50.
III.
Plaintiff’s Complaint brings this action for damages based upon Defendant’s alleged
Case 9:09-cv-81207-KAM Document 17 Entered on FLSD Docket 06/10/2010 Page 3 of 6

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