United States District Court, D. Colorado
COLEEN C. HOFFMEISTER, Plaintiff,
NAVIENT, UNITED STUDENT AID FUNDS, and SALLIE MAE STUDENT LOAN AND STUDENT LOAN FORGIVENESS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
the Court is Defendants Navient Solutions, LLC
(“NSL”) (erroneously sued as
“Navient” and “Sallie Mae Student
Loan”) and United Student Aid Funds, Inc.'s
(“USA Funds”) (collectively, the
“Defendants”) Motion for Summary Judgment. ECF
No. 134. In the Motion, Defendants argue that summary
judgment is appropriate on the five remaining claims
Plaintiff asserts in her Second Amended Complaint
proceeds pro se. As such, I must construe her pleadings
liberally but not act as her advocate. Jaramillo v. R
& S Steel, Inc., No. 10-cv-00346-REB-BNB, 2011 WL
662778, at *1 (D. Colo. Jan. 20, 2011). The five claims are:
Claim 3 under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”); Claim 4 for
“Fail[ure] to Act in the Best Interest of
Plaintiff;” Claim 5 for “Fail[ure] in Their
Fiduciary Duty to Account for Monies Not Due and
Owing;” Claim 6 under the Fair Debt Collection
Practices Act (“FDCPA”); and Claim 7 under the
Fair Credit Reporting Act (“FCRA”).
Motion, Defendants sufficiently meet their burden for summary
judgment under Fed.R.Civ.P. 56, either by identifying the
portions of the record that demonstrate there is no dispute
of material fact, or by “‘showing' . . . that
there is an absence of evidence to support [Plaintiff's]
case.” Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). This shifts the burden under Rule 56 to Plaintiff
to “go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Id. at
324. Plaintiff's Response fails to meet her burden for
two reasons. First, Plaintiff supports her Response with
documents that are not authenticated and therefore cannot be
considered on a motion for summary judgment. Second,
Plaintiff does not specifically address Defendants'
arguments by responding with evidence raising material
factual issues for each claim. Without direction from
Plaintiff, I am unable to determine whether, in the entirety
of the record, material disputes of fact exist. A
“district court [i]s not obligated to comb the record
in order to make [a plaintiff's] arguments for
h[er].” Mitchell v. City of Moore, 218 F.3d
1190, 1199 (10th Cir. 2000); Duran v. LaFarge N. Am.,
Inc., 855 F.Supp.2d 1243, 1252 (D. Colo. 2012)
(“The Court has no obligation to sift through [a
plaintiff's] evidence to find support for h[er]
arguments.”). These deficiencies are fatal to her
claims, because it leaves me unable to identify where, if
any, material disputes of fact exist. Accordingly, for the
reasons that follow, I respectfully recommend that
Defendants' Motion be granted.
Coleen C. Hoffmeister and her husband, Charles R.
Hoffmeister, initiated this action on April 11, 2017.
See ECF No. 1. They filed the operative SAC on
November 8, 2017, against NSL, USA Funds, and, additionally,
Secretary of the U.S. Treasury, U.S. Treasury Department,
Secretary of the U.S. Department of Education, U.S.
Department of Education, and U.S. Internal Revenue Service
(collectively, the “Federal Defendants”). ECF No.
56. In the SAC, Plaintiffs brought nine claims for relief,
asserting Claims 3-9 against NSL and USA Funds. See
Id. at 7-26. On December 5, 2017, the Federal Defendants
filed a motion to dismiss all claims against them, ECF No.
67; on March 27, 2018, I recommended that Judge Babcock grant
the motion, ECF No. 89; and on May 30, 2018, Judge Babcock
issued an order accepting the recommendation and dismissing
the Federal Defendants from the suit, ECF No. 105. On June
20, 2018, Mr. Hoffmeister stipulated to dismiss his claims,
leaving only Ms. Hoffmeister as a Plaintiff. ECF No. 111.
October 25, 2018, Plaintiff stipulated to the dismissal of
Claims 8 and 9, leaving only the five remaining claims. ECF
No. 133. Defendants filed this Motion on October 29, 2018,
and the Motion was fully brief on January 22, 2019. ECF No.
Defendants' Objections to Plaintiff's
preliminary matter, Defendants object to ten of
Plaintiff's exhibits submitted with her Response to the
Motion: Exhibits G, I, J, K, L, M, R, S, T, and U. Reply 3.
Of these, Exhibit G is titled “Timeline” and
provides dates and a description of purported events related
to this case, but it does not cite to portions of the record
to support the stated events; Exhibits I, J, L, M, R, S, and
U appear to be various internet printouts; Exhibit K purports
to be a draft study by the U.S. Department of the Treasury;
and Exhibit T purports to be a press release from the
Department of the Treasury. None of these documents are
accompanied by an affidavit of authenticity.
argue these exhibits should be excluded, because they are not
admissible evidence. “A court may not consider all
proffered evidence when ruling on a summary judgment motion;
only admissible evidence may enter the analysis.”
Bullock v. Wayne, 623 F.Supp.2d 1247, 1252 (D. Colo.
2009). “While the party opposing summary judgment need
not produce evidence in a form that would be admissible at
trial, the content or substance of the evidence must be
admissible.” Law Co. v. Mohawk Constr. & Supply
Co., 577 F.3d 1164, 1170 (10th Cir. 2009) (quoting
Wright-Simmons v. City of Okla. City, 155 F.3d 1264,
1268 (10th Cir. 1998)). As for the attached documents,
“[a]s a condition precedent to admissibility,
Fed.R.Evid. 901 requires authentication or identification
with ‘evidence sufficient to support a finding that the
matter in question is what its proponent claims.'”
Strepka v. Jonsgaard, No. 10-cv-00320-PAB-KMT, 2011
WL 2883375, at *6 (D. Colo. July 18, 2011); see
Jaramillo, 2011 WL 662778, at *3 (“The document is
not authenticated; it is not sufficiently identified; it
appears to be impermissible hearsay; and it contains no
facial indicia of reliability. Therefore, the document is not
appropriate for consideration on summary judgment.”).
Plaintiff has not accompanied the above-listed exhibits with
an affidavit that authenticates the documents. Therefore,
Plaintiff has not presented sufficient evidence to
“support a finding that the item is what the proponent
claims it is.” Fed.R.Evid. 901(a). Therefore, I
respectfully recommend that the documents may not be
considered for the Motion.
Findings of Fact
Court makes the following findings of fact viewed in the
light most favorable to Plaintiff, who is the non-moving
party in this matter.
Plaintiff attended Washburn University in Topeka, Kansas,
from 1980 to 1983 and 1993 to 1997. She graduated with a
Bachelor of Arts in English in 1997. Resp. 1; see
Mot. Summ. J. ¶ 1.
Plaintiff financed her education, in part, with federal
Stafford loans. From 1993 to 1996, Plaintiff completed five
applications for federal loans. Resp. ¶ 1; Reply ¶
2; see Aff. of Michelle Iorio (“Iorio
Aff.”) ¶ 7, ECF No. 134-2. Plaintiff also worked
full time to finance her college degree. Resp. ¶ 1;
Reply ¶ 1.
Plaintiff received six disbursements of student loans, which
occurred as follows: (1) $1, 500 on October 6, 1993; (2) $2,
000 on September 30, 1994; (3) $2, 153 on October 2, 1995;
(4) $747 on October 2, 1995; (5) $873 on August 7, 1996; and
(6) $1, 000 on August 27, 1996 (the “Loans”).
Mot. Summ. J. ¶ 4; Resp. ¶ 4.
operating either as NSL, Navient Solutions, Inc., or Sallie
Mae, Inc., serviced the Loans from the time they were first
disbursed. Mot. Summ. J. ¶¶ 5-6; Iorio Aff.
¶¶ 9, 12.
previously conducted business as “Sallie Mae,
Inc.” Sallie Mae, Inc. changed its name to
“Navient Solutions, Inc.” effective May 1, 2014.
Navient Solutions, Inc. converted to a limited liability
company and changed its name to Navient Solutions, LLC
effective January 31, 2017. Mot. Summ. ...