UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID DUSTERHOFT and VICKY

DUSTERHOFT,

Plaintiffs,

v.

CERTEGY PAYMENT RECOVERY

SERVICES, INC., CERTEGY, INC.,

CERTEGY CHECK SERVICES, INC., and

FIDELITY NATIONAL INFORMATION

SERVICES, INC., 

Defendants.

 /

Case No. 09-12372

Honorable Patrick J. Duggan

OPINION AND ORDER

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, on September 30, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

David and Vicky Dusterhoft (“Plaintiffs”) filed the present lawsuit in the St. Clair

County Circuit Court on May 14, 2009. After Plaintiffs filed a first amended complaint

adding Fidelity National Information Services, Inc. as a defendant, Certegy Payment

Recovery Services, Inc., Certegy, Inc., Certegy Check Services, Inc., and Fidelity

National Information Services, Inc. (collectively “Defendants”) removed the lawsuit to

this Court on June 19, 2009. Presently before the Court is Defendants’ Combined Motion

to Dismiss and for Summary Judgment, filed on July 23, 2009. Plaintiff failed to respond

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The Court analyzes the present motion as one for summary judgment because it requires

consideration of evidence contained outside the pleadings. See Abbott v. Michigan, 474 F.3d

324, 332 n.8 (6th Cir. 2007).

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to the motion and the Court dispensed with oral argument pursuant to Eastern District of

Michigan Local Rule 7.1(e)(2) on September 22, 2009.

I. Background

In their first amended complaint, Plaintiffs allege that they received repeated and

harassing telephone calls between December 2007 and May 2008 from a facsimile line

using the phone number 1 (727) 570-8810. (First Am. Compl. ¶¶ 9-12, 19.) Plaintiffs

further allege that Defendants are responsible for these phone calls. Based on this alleged

conduct, Plaintiffs are pursuing six claims against Defendants: (I) violation of the

Michigan Collection Practices Act, (II) violation of the Michigan Consumer Protection

Act, (III) intentional infliction of emotional distress, (IV) negligent infliction of emotional

distress, (V) invasion of privacy, and (VI) violation of the Fair Debt Collection Practices

Act.

During their investigation of Plaintiffs’ claims, Defendants determined that the

aforementioned telephone line is operated by Fidelity National Card Services, Inc., which

is not a party to this lawsuit, as a facsimile line to receive disputes regarding charges on

credit or debit cards. (Defs.’ Mot. Ex. B ¶¶ 3, 5.) That line is operated by a central

computer and not intended for outgoing facsimiles. (Id. ¶¶ 5-6.) Based on that discovery,

Defendants filed the present combined motion to dismiss and for summary judgment.1

 At

the conclusion of their motion, Defendants also request that the Court impose sanctions

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against Plaintiffs in the amount of actual attorney fees and costs pursuant to Rule 11 of

the Federal Rules of Civil Procedure for filing a frivolous action. (Defs.’ Mot. ¶ 12.)

II. Standard of Review

Summary judgment is appropriate only when there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(c). The central inquiry is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,

106 S. Ct. 2505, 2512 (1986). After adequate time for discovery and upon motion, Rule

56(c) mandates summary judgment against a party who fails to establish the existence of

an element essential to that party’s case and on which that party bears the burden of proof

at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). 

The movant has an initial burden of showing “the absence of a genuine issue of

material fact.” Id. at 323, 106 S. Ct. at 2553. Once the movant meets this burden, the

non-movant must come forward with specific facts showing that there is a genuine issue

for trial. Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.

Ct. 1348, 1356 (1986). “When a motion for summary judgment is properly made and

supported, an opposing party may not rely merely on allegations or denials in its own

pleading . . . .” Fed. R. Civ. P. 56(e)(2).

III. Plaintiffs’ Claims

In this case, Plaintiffs’ claims depend on the factual allegation that Defendants used

the telephone line attached to the number 1 (727) 570-8810 to make harassing calls in

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Defendants sought concurrence from Plaintiffs’ counsel in the present motion on July

16, 2009, which Plaintiffs’ counsel refused. (Defs.’ Mot. ¶ 11.) Defendants filed the present

motion one week later. See Fed. R. Civ. P. 11(c)(2) (requiring that the opposing party be given

21 days to correct its challenged conduct). 

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violation of statutory and common law. Defendants have submitted evidence, however,

that they do not operate that telephone line. Furthermore, Plaintiffs failed to respond with

specific facts showing a genuine issue for trial regarding Defendants’ operation of that

line. Because the named Defendants do not have control over the telephone line, they

cannot be held liable for the alleged statutory violations and torts and are entitled to

summary judgment.

IV. Rule 11 Sanctions

In view of the foregoing analysis, Defendants argue that Plaintiffs filed a frivolous

action pursuant to Rule 11 of the Federal Rules of Civil Procedure and should be

sanctioned in the amount of Defendants’ actual attorney fees and costs. When a party

moves for sanctions pursuant to Rule 11, he or she must do so in a motion “made

separately from any other motion” and that motion must not be filed until the opposing

party has had an opportunity to correct his or her allegedly sanctionable conduct. Fed. R.

Civ. P. 11(c)(2). In this case, Defendants did not file a separate motion for sanctions and

did not give Plaintiffs the requisite opportunity to dismiss the complaint.2

 For these

reasons, sanctions are not warranted in this case.

Accordingly,

IT IS ORDERED that Defendants’ Motion for Summary Judgment is GRANTED.

IT IS FURTHER ORDERED that Defendants’ request for sanctions is DENIED.

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A judgment consistent with this opinion shall issue.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

David R. Heyboer, Esq.

Michael P. Donnelly, Esq.

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