Opinion
Case No. 3:04-cv-289.
September 20, 2005
DECISION AND ORDER
This case is before the Court on Defendant Martin L. Melson's Motion for Summary Judgment. (Doc. 10). The parties have fully briefed the issues, ( Id., Doc. 11, 13), and the matter is ripe for decision on the merits.
The parties have consented to plenary magistrate judge jurisdiction and the matter has been referred on that basis. (Doc. 9).
Plaintiff Alice Maddox filed this action in the Montgomery County Common Pleas Court against Defendants the Martin Company, John Doe I, Multi-Unit Services, Inc., John Doe, II, Martin L. Melson, and Berkshire Bank alleging that the Defendants violated the Fair Debt Collection Practices Act., 15 U.S.C. § 1692d, et seq. (FDCPA). See Doc. 1, Attachment thereto. Specifically, Ms. Maddox alleged that on May 13, 2004, and May 14, 2004, John Doe I, also known as Ken Howard called her at her home telephone number from telephone number (203) 319-3666, that he left voice mail messages which referred to a deposition subpoena and a sheriff's seizure order, and that the messages included her Social Security number and date of birth, all in violation of the FDCPA. Id. Ms. Maddox also alleges that the telephone number Ken Howard called from was registered to the Martin Company, that after the dissolution of the Martin Company, Mr. Melson continued to operate the company for purposes other than winding up the company's affairs, and that Mr. Melson, as sole owner of the Martin Company, is personally liable to her for the actions of the Martin Company. Id. Defendants removed the action to this Court on the basis of federal question jurisdiction, (Doc. 1), and the present Motion followed.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. On a motion for summary judgment, the movant has the burden of showing that there exists no genuine issue of material fact, and the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress Co., 398 U.S. 144, 157-59 (1970). Nevertheless, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment asserting that the opposing party will not be able to produce sufficient evidence at trial to withstand a Rule 50 motion for judgment as a matter of law. See, Street v. J.C. Bradford Co., 886 F.2d 1472, 1478 (6th Cir. 1989). If, after sufficient time for discovery, the opposing party is unable to demonstrate that he or she can do so under the Liberty Lobby criteria, summary judgment is appropriate. Id. The opposing party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The moving party
[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex, 477 U.S. at 323; see also, Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (citation omitted). In ruling on a motion for summary judgment (in other words, determining whether there is a genuine issue of material fact), "[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). Thus, in determining whether a genuine issue of material fact exists on a particular issue, a court is entitled to rely only upon those portions of the verified pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.
With these principles in mind, construed in the light most favorable to Ms. Maddox and for purposes of the present Motion, the facts of this case are as follows.
The Martin Company formerly operated as a rental agent at 127 Tunxis Hill Road, Fairfield, Connecticut. Affidavit of Martin Melson, July 14, 2005 (Doc. 10, Attachment thereto). Mr. Melson was the former agent and a former officer of the Martin Company. Id. Approximately eight (8) years ago, the Martin Company moved to a new location, 292 Pequot Avenue, Southport, Connecticut, and it continued to operate as a rental company until it ceased operations in May, 2003, and was dissolved. Id. The Martin Company had no income tax return or tax liability for the year 2004. Id. At the time the Martin Company ceased operations, it had a phone listed in its name with the number (203) 319-3666. Id.. When the Martin Company stopped operating, the telephone number (203) 319-3666 was still connected at the 292 Pequot Avenue, Southport, Connecticut location where other business was conducted. Id. At no time after the Martin Company was dissolved in May, 2003, did Mr. Melson continue to operate the Martin Company for any purposes other than winding up the company's affairs. Id. As noted above, Ms. Maddox alleges that the telephone calls which are the subject of her Complaint occurred on May 13 and 14, 2004.
Mr. Melson argues that Ms. Maddox' claims against him rest on the incorrect assumptions that the Martin Company continued to operate after its dissolution and that he undertook actions on the part of the corporation which were outside the scope of the normal winding up of the affairs of a dissolved corporation. Essentially, Mr. Melson's position is that Ms. Maddox cannot produce any facts to support her claims against him.
Ms. Maddox argues that the Martin Company continued to operate after its dissolution. Ms. Maddox' position is that this is established by the fact that the Martin Company allowed its telephone number to continue to be listed as belonging to it through the date of the offending telephone calls and the fact that the complained-of calls originated from the telephone number listed as belonging to the Martin Company. Citing Nabakowski v. 5400 Corporation, 29 Ohio App.3d 82 (Ohio App. 8th Dist. 1986), and Chatman v. Day, 7 Ohio App.3d 281 (Ohio App. 2nd Dist. 1982), Ms. Maddox claims that the sole shareholder and directors of a corporation which continues to operate after its dissolution are personally liable for the acts of the dissolved corporation.
Ms. Maddox has correctly cited Nabakowski and Chatman for the proposition that the sole shareholder and directors of a corporation can be held liable for the acts of a dissolved corporation if the corporation continues to act after its dissolution. However, both Nabakowski and Chatman are distinguishable from the present case.
In Nabakowski, the individual defendants were the secretary-treasurer and the president of the corporation at issue. Subsequent to its dissolution, the defendant who had been the secretary-treasurer of the dissolved corporation applied for and received a lottery sales agent license on behalf of the corporation. The individual defendants were held jointly and severally liable in an action for fraud brought by the Lottery Commission director.
In Chatman, the president of the corporation at issue entered into a contract to build a garage on a date subsequent to the cancellation of the corporation. In addition, the individual defendant endorsed as corporation president checks which had been issued to the corporation. The individual defendant was held liable in a breach of contract claim.
The difference between the Nabakowski and Chatman cases and the present case is that in both Nabakowski and Chatman, there was evidence that the individual defendants actively engaged in activities on behalf of the corporations after they ceased to exist. In contrast, in the present case, there is no evidence that Mr. Melson actively engaged in any activities on behalf of the Martin Company after it ceased operations in May, 2003.
While, at this stage at the litigation, there appears to be no dispute that someone called Ms. Maddox' telephone number from the telephone number that had been registered to the Martin Company, there is absolutely no evidence that the call was made on behalf of the Martin Company. Indeed, Mr. Melson's uncontradicted Affidavit establishes that the Martin Company did not exist after May, 2003.
This Court finds that there is no genuine issue of material fact and that Mr. Melson is entitled to judgment as a matter of law. Accordingly, Defendant Martin Melson's Motion for Summary Judgment, (Doc. 10), is granted.
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Defendant Melson was the only Defendant to file a motion for summary judgment and the time for doing so has now expired. The case is presently set for trial to a jury at 9:00 A.M. on January 23, 2006, but the Court also has set on that day an evidentiary hearing in a capital habeas corpus case which must take precedence over this case. The trial setting is accordingly VACATED. The Court's Judicial Assistant will contact counsel to set a telephone scheduling conference to re-set the trial.