United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 2, 2004
Charles R. Fulbruge III
Clerk
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 of the Fair Debt Collection
Practices Act (“FDPCA”)1 and an unfair trade practice claim under
*
Pursuant to 5TH CIR. 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opinion should not be published and is not precedent except under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 5TH CIR. R. 47.5.4.
1
15 U.S.C. §1692 et. seq.
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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 submitted 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 that
2
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.
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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 the 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 relationship between Trover Solutions and
United; (2) when Trover Solutions first received 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 for
7
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.
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additional discovery only contained generalized explanations
justifying the requests.
Similarly, Hamilton’s attack on the affidavit of Nicole
Hendricks is not well taken. Federal Rule of Civil Procedure 56
requires that affidavits be based on personal knowledge.10 An
affiant, however, may have personal knowledge of activities 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 participating 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 Hendricks’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
10
FED. R. CIV. PROC. 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)).
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parties and were further supported by an affidavit submitted on
Hamilton’s behalf. Thus, the district court did not abuse its
discretion in summarily denying Hamilton’s motion to strike
Hendricks’ affidavit.
Therefore, we AFFIRM both the district court’s evidentiary
decisions and its grant of summary judgment.
AFFIRMED.
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