E. Jennifer Newman v. Gregg J. Ormond , 456 F. App'x 866 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12513 FEB 7, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:09-cv-21435-MGC
E. JENNIFER NEWMAN,
Plaintiff-Appellant,
versus
GREGG J. ORMOND,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 7, 2012)
Before DUBINA, Chief Judge, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant E. Jennifer Newman appeals the district court’s grant of summary
judgment in favor of Gregg J. Ormond in her suit filed pursuant to the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692e(5). This case is before us
for a second time. Previously, we reversed in part the district court’s first grant of
summary judgment in favor of Ormond and remanded for further proceedings. On
remand, Ormond filed a second motion for summary judgment and attached new
evidence in support of his motion. Newman argues on appeal that our prior
mandate–in which we remanded because “a genuine issue of material fact
exist[ed] as to whether Ormond intended to take the legal action that he threatened
in the writs of execution”–was a final, binding, non-negotiable decision regarding
Ormond’s intent that should be reaffirmed under the law-of-the-case doctrine.
Newman also argues that the district court erred in granting summary judgment to
Ormond because the inferences from the record should have been resolved by the
trier of fact, and our prior decision held that sending a writ of execution to a
debtor constituted a threat.
I.
We review a district court’s ruling on summary judgment de novo. LeBlanc
v. Unifund CCR Partners, 601 F.3d 1185, 1189 (11th Cir. 2010). We also review
a district court’s application of the law-of-the-case doctrine de novo. Alphamed,
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Inc. v. B. Braun Medical, Inc., 367 F.3d 1280, 1285 (11th Cir. 2004). “Under the
law of the case doctrine, both district courts and appellate courts are generally
bound by a prior appellate decision in the same case.” Id. at 1285-86. “The law of
the case doctrine, self-imposed by the courts, operates to create efficiency, finality
and obedience within the judicial system.” Litman v. Mass. Mut. Life Ins. Co., 825
F.2d 1506, 1511 (11th Cir. 1987).
However, the law-of-the-case doctrine only bars consideration of “those
legal issues that were actually, or by necessary implication, decided in the former
proceeding.” Oladeinde v. City of Birmingham, 230 F.3d 1275, 1288 (11th Cir.
2000) (internal quotation marks omitted). Further, “[e]xceptions to this doctrine
apply when substantially different evidence is produced, when there has been a
change in controlling authority, or when the prior decision was clearly erroneous
and would result in manifest injustice.” Jackson v. Ala. State Tenure Com’n, 405
F.3d 1276, 1283 (11th Cir. 2005). Thus, “when the evidence and the inferences
that may be drawn from [the record] change, the issue presented changes as well,”
such that “the law of the case is the law made on a given set of facts.” Id.We conclude from the record that the new evidence that Ormond attached to
his second summary judgment motion provided an exception to the
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law-of-the-case doctrine, such that the district court did not violate that doctrine in
granting summary judgment based on the new record before it.
II.
The FDCPA prohibits a debt collector from threatening to take any action that
legally cannot be taken or that is not intended to be taken. 15 U.S.C. § 1692e(5). In
establishing a claim under § 1692e(5), whether the action threatened is “one which
could be legally taken” is a separate inquiry from the inquiry regarding whether the
debt collector threatened “to take any action . . . not intended to be taken.” LeBlanc,
601 F.3d at 1193 & n.14. A claim raised under § 1692e(5) “requires proof of a fact
which amounts to a per se violation [and the] sophistication, or lack thereof, of the
consumer is irrelevant to whether [the debt collector] threatened to take any action
that was not intended to be taken.” Jeter v. Credit Bureau, Inc., 760 F.2d 1168,
1175 (11th Cir. 1985) (internal quotation marks and alterations omitted). A debt
collector’s “conclusory affidavit” that there was intent to take a certain course of
legal action is not dispositive, especially in light of conflicting evidence. Id. at
1177. Thus, where the parties agree on the basic facts of the case, but reasonably
disagree upon the proper inferences to be drawn from the debt collector’s actions,
there exists a genuine issue of material fact that should be determined by the trier of
fact and not by the court in a summary judgment context. See id. at 1176-77.
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Based on the new record before us, we conclude that there is no genuine issue
of material fact regarding Ormond’s intent to use the writs of execution against
Newman, as the record demonstrates that Ormond actively attempted to do so, but
was unable to levy or seize any of Newman’s assets due to her recalcitrance during
the discovery process. Accordingly, we affirm the grant of summary judgment in
favor of Ormond.
AFFIRMED.
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