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Chavez v. Advantage Group

United States District Court, D. Colorado

August 5, 2013

CHARLENE CHAVEZ, Plaintiff,
v.
THE ADVANTAGE GROUP, JOHN DOES, and JANE DOES, Defendants

For Charlene Chavez, Plaintiff: Kimberly Ann Lucas, Kyle Mathis & Lucas, LLP, Dallas, TX; Kevin V. K. Crick, Consumer Rights Law Firm PLLC, Andover, MA.

For Advantage Group, The, John Does and Jane Does, Defendant: Thomas C. Volkmann, Spiecker, Hanlon, Gormley & Volkmann, LLP, Grand Junction, CO.

OPINION

ORDER

Robert E. Blackburn, United States District Judge.

The matter before is Defendant's Motion for Partial Summary Judgment [#27],[1] filed May 14, 2013. With the consent of the magistrate judge, I withdraw the prior Order of Reference [#28], filed May 14, 2013, and grant the motion.

Page 1280

I. JURISDICTION

I have jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question) and 15 U.S.C. § 1692k(d) (Fair Debt Collection Practices Act)

II. STANDARD OF REVIEW

Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is " genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is " material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.

A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Id. at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 528 U.S. 933, 120 S.Ct. 334, 145 L.Ed.2d 260 (1999).

III. ANALYSIS

This action concerns a debt allegedly owed by plaintiff to Parkview Medical Center (" Parkview" ) for the provision of medical services to plaintiff. At the time plaintiff requested such services, she provided her cellular phone number to Parkview. When the debt was ...


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