* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

1 15 U.S.C. §1692 et. seq.

-1- United States Court of Appeals

Fifth Circuit



## FILED

July 2, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 03-30547

KYLE M. HAMILTON,

Plaintiff-Appellant

VERSUS

TROVER SOLUTIONS, INC., D/B/A HEALTHCARE RECOVERIES

Defendant-Appellee.

Appeal from the United States District Court

For the Eastern District of Louisiana

(01-CV-650)

Before DUHE’ BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM: *

Plaintiff-Appellant Kyle M. Hamilton brought this action

against Trover Solutions, Inc. d/b/a Healthcare Recoveries (“Trover

Solutions”) alleging a violation o f the Fair Debt Collection

Practices Act (“FDPCA”) 1 and an unfair trade pract ice claim under2 LA. REV. STAT. ANN. § 51:1401, et seq. (West 1987).

3 See Hamilton v. United Healthcare of La., Inc.

, 310 F.3d 385,

392-93 (5th Cir. 2002).

4 Id. at 393.

5 Hamilton v. Trover Solutions, Inc.

, 2003 U.S. Dist. LEXIS 8296

(E.D. La. 2003).

6 Id.

-2- Louisiana state law. 2 This is the second appeal in this case. In

the first appeal, this court reversed the district court’s 12(b)(6)

ruling in favor of Trover Solutions and held that the monies Trover

Solutions was trying to collect was a “debt” for the purposes of

the FDCPA. 3 But because the district court did not consider

whether Trover Solutions was exempt from coverage of the FDCPA

because it was not a “debt collector,” this court remanded the case

to the district court. 4

On remand, prior to deciding Trover Solutions’s summary

judgment motion, the district court denied Hamilton’s request for

additional discovery and his motion to strike Nicole Hendricks’s

affidavit sub mitted by Trover Solutions. 5 Then, concluding that

Trover Solutions was not a “debt collector” for the purposes of the

FDCPA, the district court granted summary judgment in favor of

Trover Solutions on the FDCPA claim and dismissed Hamilton’s

remaining state law unfair trade practice claim without prejudice. 6

Hamilton timely appealed.

For the reasons given by the district court, we agree that7 See Anderson v. Liberty Lobby , 477 U.S. 242, 257 (1986).

8 Beattie v. Madison Co. Sch. Dist.

, 254 F.3d 595, 606 (5th Cir.

2001)(internal citations omitted).

9 Id.

-3- Trover Solutions is not a “debt collector” under the FDCPA. The

undisputed evidence shows that Trover Solutions obtained the

responsibility to recover Hamilton’s debt prior to that debt being

in default.

Moreover, we find no abuse of discretion in either of the

district court’s evidentiary rulings. While motions for summary

judgment should not be granted in t he absence of full and fair

discovery, 7 a plaintiff opposing summary judgment is only entitled

to discovery if he can show that additional discovery is needed and

how that discovery will create a genuine issue of material fact. 8

“[V]ague assertions that additional discovery will produce needed,

but unspecified facts” are not sufficient to warrant additional

discovery. 9

In this case, additional discovery was not necessary because

the key facts necessary for the resolution of the FDCPA claim were

undisputed. Specifically, the parties did not dispute: (1) the

nature of the contract relation ship between Trover Solutions and

United; (2) when Trover Solutions first r eceived notice of a

potential subrogation claim against Hamilton; and (3) when Hamilton

began receiving money from State Farm. Moreover, even if more

discovery might have been necessary, Hamilton’s requests for10 F ED

. R. C IV

. P ROC . 56(e);

11 See Dalton v. FDIC , 987 F.2d 1216, 1223 (5th Cir. 1993)

12 Id. ; FDIC v. Patel

, 46 F.3d 482, 484 (5th Cir. 1995); FDIC v.

Seiladen Builders, Inc.

, 973 F.2d 1249, 1255 (5th Cir. 1992)(citing

RTC v. Camp. , 965 F.2d 25, 29 (5th Cir. 1992)).

-4- additional discovery only contained generalized explanations

justifying the requests.

Similarly, Hamilton’s atta ck on the affidavit of Nicole

Hendricks is not well taken. Federal Rule of Civil Procedure 56

requires that affidavits be based on personal knowledge. 1 0 An

affiant, however, may have personal knowledge of acti vities in

which she has not actually participated. 11 This includes situations

where a manager of an organization can glean personal knowledge of

the practices of that organization by participa ting in those

practices or reviewing the organization’s records. 12

Here, Hamilton only vaguely contended that Hendricks failed to

state the basis of her involvement was in the contracts between

Trover Solutions and United. This failure, Hamilton contended,

made the contents of her affidavit inadmissible hearsay. But a

review of H endricks’s affidavit indicates that she is a business

manager with Trover Solutions and that she is familiar with the

subrogation services contracts between Trover Solutions and United

as well as the business practices of Trover Solutions. Moreover,

many of the facts provided in Hendricks’s affidavit regarding the

contract between United and Trover Solutions are undisputed by the-5-

parties a nd were further supported by an affidavit submitted on

Hamilton’s behalf. Thus, the district court did not abuse its

discretion in summarily d enying Hamilton’s motion to strike

Hendricks’ affidavit.

Therefore, we AFFIR M both the district court’s evidentiary

decisions and its grant of summary judgment.

AFFIRMED.