Stewart v. Healthcare Revenue Recovery Grp.

ANGELA STEWART, Plaintiff, v. HEALTHCARE REVENUE RECOVERY GROUP, LLC, Defendant.

No. 3:20-cv-00679

United States District Court, M.D. Tennessee, Nashville Division

January 21, 2022

MEMORANDUM

ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

Plaintiff Angela Stewart brings claims against defendant Healthcare Revenue Recovery Group, LLC (“HRRG”), a debt collector, under the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act. (Doc. No. 60, Second Amended Complaint, at 1.) Now before the court are the plaintiff's Motion for Partial Summary Judgment (Doc. No 77) and the defendant's Motion for Summary Judgment (Doc No. 78).

The parties' filings have raised a number of threshold issues that the court must address before turning to the merits of either motion. First, under the Initial Case Management Order (ICMO) entered on October 19, 2020, no party is to file a motion for partial summary judgment without first seeking and then being granted leave of court. (Doc. No. 21, at 3-4.) The plaintiff did not seek such leave prior to filing her motion. In the interests of justice and the expedient resolution of this case, the court will nonetheless consider the motion. The defendant did not object to the filing of the motion, and it largely tracks the plaintiff's Response to the defendant's Motion for Summary Judgment.

For its part, the defendant misfiled important exhibits in support of its own Motion for Summary Judgment, including by filing two copies of the transcript of the plaintiff's second deposition, rather than filing the transcript of each of the plaintiff's two depositions on which its motion relies. It failed to correct this error until being directed by court staff to do so, despite being notified of the error in the plaintiff's response documents. It also omitted a critical exhibit to a witness's declaration, which it supplied only after the plaintiff pointed out the error. Despite the belatedness of these filings, the court will consider these documents, for what they are worth.

Third Local Rule 7.01 provides that replies in support of dispositive motions shall not exceed five pages “without leave of court, ” but the ICMO entered in this case expressly provides that optional reply briefs in support of dispositive motions may be up to 20 pages long. Apparently neither party actually reread the ICMO, even though it was prepared by the parties themselves. The defendant, in derogation of both the Local Rule and the ICMO filed a 28-page reply brief (Doc. No. 83), to which it attached, among other exhibits, a “Second Concise Statement of Undisputed Facts, ” purportedly in accordance with Local Rule 56.01(b) (Doc. No. 83-4, at 1). Local Rule 56.01(b) provides that a motion for summary judgment must be accompanied by a (single) “separate, concise statement of the material facts as to which the moving party contends there is no genuine issue for trial.” Rule 56.01(c) permits a party responding to a motion for summary judgment to include with its response a separate “concise statement of any additional facts that the non-movant contends are material and as to which the non-movant contends there exists a genuine issue to be tried.” L.R. 56.01(c). Neither of these rules authorizes a party moving for summary judgment to file a second statement of undisputed facts with its reply brief.

The plaintiff did not move to strike these documents, but she apparently voiced an objection to the defendant directly. The defendant thereafter submitted an Amended Reply limited to five pages “in order to conform with Local Rule 7.1 and with Plaintiff's consent” (Doc. No. 85, at 1), to which it has re-attached all of the same exhibits attached to the original Reply, except for the Second Concise Statement of Undisputed Material Facts. In light of this filing, the court considers the Amended Reply and its exhibits as the operative filing and will not consider the original 28-page Reply or the defendant's Second Concise Statement of Undisputed Material Facts in addressing the defendant's Motion for Summary Judgment.

Finally, the plaintiff argues that the court must exclude from consideration the Declaration of Karl Hillard (Doc. No. 83-1), which the defendant filed and has cited in support its own Motion for Summary Judgment and in opposition to the plaintiff's Motion for Partial Summary Judgment. Karl Hillard is HRRG's Assistant Vice President and custodian of records and was apparently deposed as the defendant's Rule 30(b)(6) representative. (Doc. No. 74, Hillard Dep. 9;^[1] Doc. No. 83-1, Hillard Decl. ¶¶ 1, 12.) The plaintiff argues that Hillard's Declaration must be excluded under the “sham affidavit doctrine” and the hearsay rule (Doc. No. 81, at 4).

Under the Sixth Circuit's sham-affidavit rule, “a party cannot create a genuine dispute of material fact with an affidavit that conflicts with the party's earlier testimony about the fact.” Boykin v. Family Dollar Stores of Mich., LLC, 3 F.4th 832, 842 (6th Cir. 2021) (citations omitted). The appellate court has indicated that the rule may apply in two situations: (1) when “a witness's affidavit ‘directly contradicts' the witness's prior testimony”; and (2) when “the witness's affidavit is in tension with that prior testimony as long as the circumstances show that the party filed the affidavit merely to manufacture ‘a sham fact issue.'” Id. (quoting Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006)).

The plaintiff asserts that the doctrine applies in this case, because Hillard testified in his deposition that, when an account is assigned to HRRG for collection, HRRG does not “get any documents” and that it primarily receives from its clients “demographic information” about the debtor. (Doc. No. 81, at 5 (quoting Doc. No. 81-3, Hillard Dep. 20-21).) But, she claims, he stated in his Declaration that HRRG keeps and maintains its client's business records, including consent forms, and relies on such records, and he “affirmatively represents that Defendant ‘possessed the attached Consent Form that was electronically sent to' it.” (Id. (citing and quoting Doc. No. 78-6, Hillard Decl. ¶¶ 3-5, 8, 10-11).)^[2] The plaintiff also points to interrogatory answers supplied by HRRG, which did not supply either the Consent Form or a hospital registration form (“Registration Form”), both of which the defendant relies upon in connection with the dispositive motions.

The plaintiff particularly objects to the following statement in Hillard's Declaration:

The attached Consent Form was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of and a business duty to record or transmit those matters, were kept in the course of the regularly conducted activity of [the creditor], and were made by the regularly conducted activity of [the creditor] as a regular practice.

(Hillard Decl. ¶ 9.) The plaintiff argues that the Declaration “directly contradicts” his prior sworn deposition testimony. (Doc. No. 81, at 6.)

She also argues that the statement is facially false and based on a double layer of hearsay, as it is apparent that Hillard has no personal knowledge regarding when the Consent Form was created, how it was made, or who made it, nor could he possibly know whether it was a document “kept in the course of [the creditor's] regularly conducted [business] activity.” (Id.) Moreover, Hillard testified in his deposition that his knowledge regarding the Consent Form was based solely on information provided to HRRG by its client. (Doc. No. 78-5, Hillard Dep. 100; Doc. No. 74, Hillard Dep. 101-02, 122.) He has no personal knowledge of when Stewart's daughter was admitted to the hospital or what happened when she was there. (Doc. No. 74, Hillard Dep. 12223.)

In response, the defendant points out that the plaintiff received both of the documents the plaintiff now seeks to exclude-the Registration Form and the Consent Form-in June 2021 with the defendant's Third Supplemental Responses to Plaintiff's Request for Production of Documents, well before the defendant filed its Motion for Summary Judgment. In response to the plaintiff's Statement of Additional Facts, the defendant also argues that the plaintiff cherry-picks from Hillard's testimony and that his Declaration does not directly contradict his deposition testimony.

Indeed, Hillard testified in his deposition that his company does not receive “paper documents” with its accounts; it typically receives an electronic file containing largely demographic information and information relevant to the collection of a specific debt. (Doc. No. 81-3, Hillard Dep. 21.) His Declaration clarifies that additional documents-such as consent forms-are “made available to HRRG upon request” and that, in the course of its regularly conducted activity, HRRG possessed the Consent Form that was electronically sent to it by the medical provider and attached as an exhibit to his Amended Declaration. (Hillard Decl. ¶¶ 4, 8.) The court finds no inherent contradiction in Hillard's statement that HRRG obtains additional documents upon request. Moreover, as also addressed, below, Hillard is clearly competent to testify that HRRG obtained the Consent Form and Registration Form from its creditor client in connection with the plaintiff's accounts. Further, while the court finds that Hillard's statements regarding the execution and maintenance of the Consent Form cannot be reasonably credited, the discounting of those statements does not require excluding the Declaration-or the Consent Form attached to it-from consideration. The court will not strike the Declaration.

Other issues with the parties'-particularly the defendant's-submissions are addressed below, in the...