                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

 KRISHNA MUIR,                                   )
                                                 )
                      Plaintiff,                 )
                                                 )
                                                 )   Civil Case No. 03-1193 (RJL)
               v.
                                                 )
 NA VY FEDERAL CREDIT UNION, et                  ~
 aL,                                             )

                      Defendants.                L
                             MEMORANDUMOPINION
                              (September~ 2010) [#88]

       Plaintiff Krishna Muir brought this action against Patricia L. Dearing, L.L.C.,

("Dearing") on June 3, 2003. Plaintiff claimed that Dearing violated the Fair Debt

Collection Practices Act ("FDCP A") by participating in the tortious conversion of

plaintiffs funds, which had been deposited in plaintiffs account at Navy Federal Credit

Union ("NFCU"). Specifically, plaintiff claims that Dearing worked jointly and in

concert with NFCU to set off and convert a joint bank account held by plaintiff and his

father in the amount of$27,022.90 to satisfy a debt that had been incurred by his father,

individually. After prolonged litigation, during which all claims against Dearing, except

for plaintiffs claims under the FDCPA, were disposed of, this case is now before this

Court on Dearing's Motion for Summary Judgment. For the reasons set forth below, the

Court GRANTS Dearing's motion.}


} Plaintiff brings suit against both Dearing and NFCU. NFCU has filed a separate Motion
for Summary Judgment [#87], which the Court has addressed in a separate Memorandum
Opinion.
                                             1
                                     BACKGROUND

       The facts of this case have been recounted through various rulings both by this

Court and our Circuit Court and do not require a lengthy reiteration here. In short, on

October 1,2002, plaintiff deposited $29,015.55 in a joint account that he held with his

father at NFCU. CompI. ~ 9. On October 17,2002, NFCU set off the account in the

amount of $27,022.90 to satisfy a debt that been incurred by his father, individually.

Dearing's Stmt. of Facts, Sept. 24, 2009 ("Dearing Stmt.") ~ 2. Because of the reasons

set forth in my March 1, 2005 memorandum opinion and order, I entered judgment

against NFCU and awarded plaintiff actual damages in the amount of$27,022.90. Mem.

Op. and Order of Mar. 1,2005 at 3 (vacated Jan. 4, 2007 and reinstated Mar. 19,2007). I

also dismissed all claims against Dearing for lack of standing. Mem. Op. and Order of

Feb. 28,2005. In 2008, our Circuit Court, however, held that plaintiff did have standing

under the FDCPA to bring the suit against Dearing and remanded the case for further

proceedings. Muir v. Navy Fed. Credit Union, 529 F.3d 1100 (D.C. Cir. 2008).

Interestingly, plaintiff did not appeal and the Circuit Court did not address, my dismissal

of plaintiffs tort claims arising under state law. See id.

                                        ANALYSIS

       Summary judgment is appropriate when the record demonstrates that "there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter oflaw." Fed. R. Civ. P. 56(c). In considering a motion for summary

judgment, "[t]he evidence ofthe nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

                                              2
255 (1986). However, in opposing a motion for summary judgment, the non-moving

party "may not rest upon the mere allegations or denials of his pleading, but ... must set

forth specific facts showing that there is a genuine issue for trial." Id. at 248 (citing Fed.

R. Civ. P. 56(e)). Moreover, "[t]he mere existence ofa scintilla of evidence in support of

the [non-movant]'s position will be insufficient." Id. at 255. "If the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted." Id. at

249-50 (citations omitted).

       Plaintiff brings this action against Dearing under various sections of the PDCP A,

including § 1692d (prohibiting "conduct the natural consequence of which is to harass,

oppress, or abuse any person in connection with the collection of a debt"), § 1692f

(prohibiting "unfair or unconscionable means to collect or attempt to collect any debt"), §

1692e (prohibiting "false, deceptive, or misleading representation or means in connection

with the collection of any debt"), and § 1692g (setting requirements relating to the

validation of debts and other initial communications). 15 U.S.C. §§ 1692d-g (2006).

Specifically, plaintiff claims that Dearing worked in concert with NFCU - and even

directed NFCU - in the wrongful conversion of plaintiffs funds in violation of these

provisions. CompI.   ~~   60-105. In support of this claim, plaintiff lists nine "separate and

distinct" pieces of evidence. PI. Opp'n at 9. Unfortunately, for plaintiff, this evidence is

not sufficient to defeat summary judgment.

       Plaintiffs first two pieces of evidence, supported only by his own deposition,

relate to alleged statements made by Dearing and NFCU to the effect that Dearing

authorized the set off of plaintiffs funds. Id. Notably, however, the first piece of

                                                3
evidence, that Dearing admitted authorizing the set off, was not even heard by the

plaintiff. Muir Dep. 44:3-6. Instead, plaintiff claims Dearing told his father. Id.

Irrespective, these statements are not only unsupported by any other evidence on the

record, but contradicted by both Dearing and NFCU's testimony and by other

circumstantial evidence. Indeed, plaintiff lists seven other pieces of evidence that are

largely irrelevant to his claims and, if anything, contradict his first two points. See PI.

Opp'n at 9. For example, plaintiff points to evidence that at or around this time Dearing

was charged with collecting on his father debt, pointing to a letter sent by Dearing to

plaintiffs father on the day plaintiffs funds were set off. Id. However, the letter merely

asks plaintiffs father to validate the entire amount of the debt - $43,973.69 - and

requests a certified check in the "full amount owed" to be mailed to Dearing's office.

Dearing Mot. Summ. J. Ex. 3. Far from indicating that Dearing had authorized the set off

of$27,022.90, the letter confirms that Dearing did not know ofNFCU's actions. Further,

consistent with Dearing's own statements and description of how collections are

conducted, NFCU has stated that Dearing had no involvement in the set off. Compare

Patricia Dearing Dep. 53:21-54: 8 (explaining that Dearing never "instruct[s] anyone to

withhold funds in a particular account") with NFCU's Rep. to PI. Interrog. No. 22 (stating

that Dearing had no role in the set off).2



2 Plaintiff also claims that because Dearing and NFCU refused to disclose the content of
any communications between Dearing, a law firm retained by NFCU, and NFCU,
Dearing could not now claim that plaintiff has no evidence regarding Dearing's
participation in the set off. PI. Opp'n at 12-13. However, the communications about
which plaintiff sought disclosure were privileged. Further, Patricia Dearing explained,
under oath, during her deposition that her firm did not participate in or authorize the set
                                               4
       Plaintiff also brings claims against Dearing for deceptive and misleading

representations. CompI." 106-113. However, plaintiff has provided no evidence that

Dearing ever communicated with plaintiff, either directly or indirectly. See 15 U.S.C. §

1692(a)(2) (defining "communications" under the FDCPA as "conveying of information

regarding a debt directly or indirectly to any person through any medium"). Indeed all

communications in this case were direct to plaintiff's father or indirect to plaintiff's

father through plaintiffs father's attorney. Muir Dep. 44:3-6; Dearing Mot. Summ. 1.,

Exs.4-5. Thus, even under the broad definition of communication set forth in the

FDCPA, none of the communications at issue in this case were to plaintiff. See Sayyed v.

Wolpoff & Abramson, 485 F 3d 226, 232 (4th Cir. 2007).

       Notwithstanding these communications, plaintiff cannot collect damages against

Dearing. On March 19,2007, this Court entered judgment against NFCU and awarded

plaintiff actual damages of$27,022.90, reinstating its decision from March 1,2005.

Mem. Op. and Order of Mar. 19,2007 at 2. Plaintiff is, therefore, essentially claiming

lost profits against Dearing because plaintiff did not have access to his funds and could

not, as a result, enter into a series of investments that would have yielded him $110,750.

PI. Opp'n at 17-22. Please!

       Lost profits may only be awarded if the fact of the injury is proven with

"reasonable certainty" and the amount of damages is based on a "reasonable estimate."

Samaritan Inns v. District of Columbia, 114 F.3d 1227, 1235 (D.C. Cir. 1997). Here,


off of plaintiff s funds. See Dearing Dep. 53:21-54: 8. Thus the information that
plaintiff claims was withheld was, in fact, provided to plaintiff.
                                              5
plaintiff can show neither. The reasons are the same as laid out in my disposition of

plaintiff's case against NFCU, which has been decided concurrently with this one. Mem.

Op. and Order of Sept. 29,2010 [#98]. In short, plaintiff's alleged lost profits are

speculative at best. Neither the certainty of the loss nor the estimate of the profits are

sufficiently reasonable to warrant an award of lost profits. Plaintiffs claim, as a result, is

to no avail.

                                      CONCLUSION

       Accordingly, for the foregoing reasons, the Court GRANTS defendant Dearing's

Motion for Summary Judgment [#88]. An order consistent with this decision

accompanies this Memorandum Opinion.

                                                          /
                                                   ~I~
                                                   RICHARD~
                                                   United States District Judge




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