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Berg v. Ayesh

United States District Court, D. Kansas

June 11, 2014

JERRY L. BERG, Plaintiff,
v.
MARK G. AYESH, et al., Defendants.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

The Court has under consideration Defendants' Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) and 28 U.S.C. § 1927 (Doc. 27) [hereinafter "Motion to Dismiss"].[1] Plaintiff opposes the motion and it is fully briefed. For the following reasons, the Court grants the motion in part and denies it in part.

I. BACKGROUND

Pro se plaintiff Jerry L. Berg commenced this action by filing a civil complaint on April 30, 2013, against Cedar Lakes Village Condominium Association ("CLVCA"); its attorney, Mark G. Ayesh; its Property Manager, Simon Palmer Properties, Inc. ("SPP"); and eighteen members of CLVCA and unit owners or residents.[2] He sues all defendants for alleged tortious interference with contract, alleged violations of the Kansas Uniform Common Interest Owners' Bill of Rights Act ("KUCIOBORA"), K.S.A. § 58-4601 et seq.; and alleged violations of the Kansas Constitution and Bill of Rights.[3] And he sues the two entities and Ayesh for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.[4]

On June 7, 2013, defendants moved to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted and pursuant to 28 U.S.C. § 1927 because, defendant claims plaintiff should be declared a vexatious litigant.[5] Upon the filing of defendants' Reply (Doc. 33), the motion became fully briefed and ready for ruling. Given the filing of the motion and similarities between this case and another case filed by plain-tiff - Case No. 12-1123-KHV - the Court essentially stayed all proceedings in this case pending resolution of the Motion to Dismiss.[6] And then, on December 12, 2013, the Court granted defendants' Motion for Summary Judgment in the related case, found that plaintiff's FDCPA claims failed as a matter of law, declined to exercise supplemental jurisdiction over plaintiff's state law claims, and remanded the case to state court. Berg v. Frobish [Berg I], No. 12-1123-KHV, 2013 WL 6511877, at *4-7 (D. Kan. Dec. 12, 2013). This ruling prompted a series of supplemental briefs on the Motion to Dismiss in this case.[7] In that briefing, defendants urge the Court to dismiss this case for lack of jurisdiction to be consistent with the dismissal of Case No. 12-1123-KHV.[8]

II. JURISDICTION

To be consistent with the ruling in the prior case, defendants urge the Court to dismiss this action for lack of jurisdiction because plaintiff - as in his prior case - predicates federal jurisdiction only on his FDCPA claims. Doc. 36 at 2. Defendants misconstrue the ruling in Berg I. The Court in Berg I did not dismiss the FDCPA claims for lack of jurisdiction. See 2013 WL 6511877, at *4-7. It instead found that such claims failed as a matter of law because the defendants, including SPP and CLVCA, were not debt collectors within the meaning of the FDCPA and were not attempting to collect any consumer debt. See id. The jurisdictional issues arose only when the Court considered whether to exercise supplemental jurisdiction over the state law claims. See id. at *7. For jurisdictional purposes in this case, plaintiff adequately alleges a violation of the FDCPA.

III. VEXATIOUS LITIGANT

Pursuant to 28 U.S.C. § 1927, defendants seek to dismiss this action because plaintiff should be declared a vexatious litigant. Mem. at 22. That statute provides:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.

Although the Court may employ § 1927 to sanction attorneys and other persons admitted to conduct cases, the statute provides no means to dismiss an action. "Section 1927 only authorizes the taxing of excess costs arising from an attorney's unreasonable and vexatious conduct; it does not authorize imposition of sanctions in excess of costs reasonably incurred because of such conduct." Jackson v. Diversified Collection Servs., Inc., 485 F.App'x 311, 312 (10th Cir. 2012) (quoting United States v. Blodgett, 709 F.2d 608, 610-11 (9th Cir. 1983)). Consequently, the Court declines to dismiss this action under § 1927. And, because defendants seek no sanction permitted under the statute, it declines to otherwise consider whether plaintiff properly could be declared a vexatious litigant under that statute.

IV. MOTION TO DISMISS

Pursuant to Fed.R.Civ.P. 12(b)(6), defendants seek to dismiss this action for failure of plaintiff to state a claim upon which relief can be granted. Mem. at 4-5.

Among other things, pleadings that state "a claim for relief must contain... (2) a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This rule is intended to provide opposing parties "fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. ...

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