United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
matter comes before the court on defendant Butler &
Associates, P.A.'s Renewed Motion to Dismiss (Doc. 16).
All parties have filed responses and replies. For reasons
explained below, the court grants defendant's motion in
part and denies it in part. After identifying the governing
facts, this order explains why.
following facts come from plaintiff's First Amended
Complaint (Doc. 15). Because the current dismissal
motion relies on Federal Rule of Civil Procedure 12(b)(6),
the court must accept the pleaded facts as true and view them
in the light most favorable to plaintiff. Ramirez v.
Dep't of Corrs., 222 F.3d 1238, 1240 (10th Cir.
2000). The court emphasizes that this standard controls the
facts at this stage of the case. In short, the court
expresses no opinion whether they represent the facts that,
ultimately, the factfinder would believe.
lawsuit arises from an alleged debt that defendant tried to
collect from plaintiff Courtney Bevan. Defendant is a law
firm who filed two lawsuits against plaintiff, trying to
collect $1, 542.11. Plaintiff allegedly owed this debt to
Stormont-Vail Regional Healthcare, defendant's client.
Neither lawsuit explains why plaintiff purportedly owed the
debt. Defendant did not serve plaintiff in either case.
her life, plaintiff has lived many places. Before graduating
from high school in 2001, plaintiff lived at ___42 Sycamore
Lane, Ozawkie, Kansas (“the Ozawkie
address”).This address is in a wooded area near Lake
Perry. Plaintiff never has worked at this address. When
plaintiff married Eric Amack in 2003, she moved to
Allen's Ally, Perry, Kansas. In 2005, plaintiff and Mr.
Amack moved to ___ 44 S.W. Clare Avenue, Topeka, Kansas
(“the Topeka address”). Mr. Amack joined the
military in May 2007 and was transferred to Fort Bliss near
El Paso, Texas. Plaintiff moved with Mr. Amack to El Paso in
2007 and never returned to the Topeka address. While living
in El Paso, plaintiff and Mr. Amack lived at two addresses:
01-A Artillery Road, El Paso, Texas (“the Artillery
Road address”); and ___ 09 Christenson Circle, El Paso,
filed the first small claim suit against plaintiff on July
27, 2009 in the District Court of Shawnee County, Kansas. The
Petition alleged that plaintiff “may be served with
certified mail service at ___01 A Artillery Road, El Paso, El
Paso County, TX 79906.” Defendant attempted to serve
plaintiff by mail at the Artillery Road address three times
between July and December 2009. Each service effort was
returned unclaimed. On February 1, 2010, the Shawnee County
District Court ordered defendant to show cause why it had not
served plaintiff. On May 1, 2010, the court dismissed the
first lawsuit for failing to prosecute. The docket for the
case includes this notation: “Case is not to be
filed a second lawsuit seeking to collect the debt on May 26,
2011 in the same court, again asserting that plaintiff could
be served at the Artillery Road address. Defendant mailed a
summons to the Artillery Road address, but again the summons
was returned unclaimed. On July 8, 2011, defendant filed an
affidavit with the Shawnee County District Court asserting
that plaintiff was not an active member of the military
according to the Department of Defense Manpower Data Center
Military Verification website. Defendant then tried to serve
plaintiff at the Ozawkie address, alleging that plaintiff
worked at the Ozawkie address. Defendant attempted to serve
plaintiff three times there but all were returned unserved.
One return included a note stating that plaintiff “was
not known here.”
November 9, 2011, the Clerk of the Shawnee County District
Court entered a docket notation providing that the clerk had
issued an alias summons for personal service on
plaintiff.Defendant told the clerk that the Sheriff
could serve plaintiff at the Topeka address. But, defendant
knew plaintiff did not reside at this address. On November
17, 2011, the Sheriff filed a return of service receipt
showing the sheriff had served plaintiff by tacking notice to
the Topeka address and mailing notice to the same
December 16, 2011, the Shawnee County District Court entered
a default judgment against plaintiff. Defendant attempted to
collect on the judgment by issuing a garnishment to the
Ozawkie address on January 11, 2012. No one answered the
divorcing Mr. Amack in 2012, plaintiff moved back to Kansas.
On December 2, 2015, defendant issued a second garnishment on
plaintiff's employer at the time, Geary Community
Hospital. The hospital complied with the garnishment. When
the hospital notified plaintiff that defendant was garnishing
her wages, plaintiff called defendant on December 16, 2015.
Plaintiff asked about the alleged debt and explained that no
one ever had served her with process. Defendant only told
plaintiff that it had a default judgment against her and
provided information about a third lawsuit it filed against
Defendant did not provide any information about the debt that
the second lawsuit had relied on for its allegations
contacted defendant again on January 15, 2016. Defendant
assured plaintiff that it would mail information to her about
the alleged debt. But it never did. When defendant failed to
mail the promised information, plaintiff contacted defendant
four times in March 2016. Plaintiff again asked about the
purported debt she owed. Again, defendant failed to provide
any substantive information. Instead, it merely asserted that
the debt arose on December 10, 2004. When plaintiff asked if
defendant could sue for a debt that old, defendant falsely
told her that no statute of limitations bars an action to
collect a debt. Defendant also told her that it could refile
a lawsuit repeatedly to collect a judgment, even if the court
previously had dismissed the suit. In response to these
conversations, plaintiff hired legal counsel. Defendant
collected nine wage garnishment payments from plaintiff
before the Shawnee County District Court set aside the
judgment on June 7, 2016.
asserts four claims against defendant. First, she asserts
defendant violated the Fair Debt Collection Practices Act
(“FDCPA”) (Count I). Next, she asserts defendant
violated the Kansas Consumer Protection Act
(“KCPA”) (Count II). Then, she asserts defendant
committed abuse of process (Count III). And last, plaintiff
asserts defendant committed fraud (Count IV).
motion to dismiss for failure to state a claim, the court
accepts all facts pleaded by the non-moving party as true and
draws any reasonable inferences in favor of the non-moving
party. Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228
(10th Cir. 2012). “To survive a motion to dismiss
[under Rule 12(b)(6)], a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). “Under this
standard, ‘the complaint must give the court reason to
believe that this plaintiff has a reasonable
likelihood of mustering factual support for these
claims.'” Carter v. United States, 667
F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red
Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
Cir. 2007) (emphasis in original)).
this Rule “does not require ‘detailed factual
allegations, '” it demands more than “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action'” which, as the Supreme Court has explained,
simply “will not do.” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555). This is so
because the court need not “accept as true a legal
conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 557 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986) (internal quotation
evaluating a motion to dismiss under Rule 12(b)(6), the court
may consider the Complaint itself along with any attached
exhibits and documents incorporated into it by reference.
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009) (citing Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007); TMJ
Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1180 (10th
Cir. 2007); Indus. Constructors Corp. v. U.S. Bureau of
Reclamation, 15 F.3d 963, 964-65 (10th Cir. 1994)). A
court also “‘may consider documents referred to
in the complaint if the documents are central to the
plaintiff's claim and the parties do not dispute the
documents' authenticity.'” Id.
(quoting Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210,
1215 (10th Cir. 2007) (internal quotation omitted)).
can “'take judicial notice of its own files and
records as well as facts which are a matter of public
record.'” Tal v. Hogan, 453 F.3d 1244,
1264 n.24 (10th Cir. 2006) (quoting Van Woudenberg ex
rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000),
abrogated on other grounds by McGregor v. Gibson,
248 F.3d 946, 955 (10th Cir. 2001)). Such documents, however,
“'may only be considered to show their contents,
not to prove the truth of matters asserted
therein.'” Id. (quoting Oxford Asset
Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.
2002)). But, even where such documents exist, the governing
cases permit the court to consider them-or not-as a matter of
discretion. Lowe v. Town of Fairland, Okla., 143
F.3d 1378, 1381 (10th Cir. 1998).
defendant asks the court to consider on judicial notice the
docket entries of the second lawsuit, an affidavit filed in
the second lawsuit swearing plaintiff was not in the
military, and the return of service receipt. The court only
considers these documents to show their contents. The court
does not use the documents to prove the truth of the matters
asserted in there. So, while the court acknowledges these
documents exist, the court does not consider any facts
asserted by the documents as true.
FDCPA (Count I)
alleges that defendant violated the Fair Debt Collection
Practices Act (“FDCPA”). When it passed the
FDCPA, Congress was concerned that many debt collectors were
using “abusive, deceptive, and unfair debt collection
practices . . . .” 15 U.S.C. § 1692(a). The FDCPA
thus aims, in part, “to eliminate abusive debt
collection practices by debt collectors.” Id.
§ 1692(e). To this end, “[t]he FDCPA generally
prohibits debt collectors from engaging in harassing and
abusive conduct, using false, deceptive, and misleading
representations, and using unfair or unconscionable means to
collect debts.” Udell v. Kan. Counselors,
Inc., 313 F.Supp.2d 1135, 1139 (D. Kan. 2004) (citing
Johnson v. Riddle, 305 F.3d 1107, 1107 (10th Cir.
2002) (further citations omitted)). A debt collector incurs
civil liability under the FDCPA for failing to comply with
any provision of the FDCPA. 15 U.S.C. § 1692k(a).
“Attorneys engaged in the collection of debts are debt
collectors subject to liability under the FDCPA.”
Johnson, 305 F.3d at 1117 (citing Heintz v.
Jenkins, 514 U.S. 291, 299 (1995)).
asserts four arguments to support its Motion to Dismiss
plaintiff's FDCPA claim. They are: (1) the statute of
limitations has expired, (2) defendant cannot incur liability
for serving plaintiff at the wrong address, (3) defendant
cannot incur liability because plaintiff has not alleged that
defendant gave plaintiff any information about the debt, and
(4) the Complaint fails to allege sufficiently which part of
the FDCPA that defendant violated. Additionally, defendant
argues the court lacks subject matter jurisdiction over
plaintiff's FDCPA claim because the
Rooker-Feldman doctrine applies. Because the court
must ensure it has subject matter jurisdiction before
proceeding, Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428, 434 (2011), the court first addresses whether
the Rooker-Feldman doctrine bars the court
from deciding plaintiff's FDCPA claim. Then, the court
considers defendant's arguments against the sufficiency
of plaintiff's Complaint.
the Rooker-Feldman doctrine, “lower federal
courts are precluded from exercising appellate jurisdiction
over final state-court judgments.” Lance v.
Dennis, 546 U.S. 459, 463 (2006) (per curiam). The
doctrine only applies to “cases brought by state-court
losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of
those judgments.” Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005). In essence, the
doctrine bars federal claims brought by those seeking, in
effect, appellate review of state court judgments
“'based on the losing party's claim that the
state judgment itself violates the loser's federal
rights.'” Kline v. Biles, 861 F.3d 1177,
1180 (10th Cir. 2017) (quoting Tal, 453 F.3d at
1256). The doctrine does not bar claims where “the
relief sought in the federal action would not
reverse or undo the relief granted by the state
court: ‘If a federal plaintiff presents some
independent claim, albeit one that denies a legal conclusion
that a state court has reached in a case to which [plaintiff]
was a party . . . then there is jurisdiction [for the
district court].'” Mo's Express, LLC v.
Sopkin, 441 F.3d 1229, 1237 (10th Cir. 2006) (quoting
Exxon Mobil, 544 U.S. at 293 (further citations and
quotations omitted)). The Supreme Court has warned that this
doctrine is a narrow one. Lance, 546 U.S. at 464.
the Shawnee County District Court has set aside its judgment.
Plaintiff thus is not a state court “loser.” Any
relief she seeks would not require the court to
“undo” or “reverse” the Shawnee
County District Court relief. In addition, the Complaint
alleges that defendant violated the FDCPA by failing to
provide her with information that the FDCPA requires debt
collectors to provide. See 15 U.S.C. § 1692g
(requiring debt collectors to provide debtors with certain
information about the debt). This alleged failure is entirely
independent of the Shawnee County District Court's
decision because plaintiff seeks relief based on
defendant's failure to inform plaintiff about the nature
of the debt rather than the Shawnee County District
Court's relief to defendant. The Rooker-Feldman
doctrine thus does not deprive the court of subject matter
court now considers defendant's arguments that plaintiff
has failed to state a claim for relief under the FDCPA.
Statute of Limitations
plaintiff must bring an FDCPA claim within one year of any
violation. 15 U.S.C. § 1692k(d). A court analyzes
individual violations discretely for statute of limitation
purposes. Llewellyn v. Allstate Home Loans, Inc.,
711 F.3d 1173, 1188 (10th Cir. 2013) (citing Solomon v.
HBC Mortg. Corp., 395 Fed.Appx. 494, 497 (10th Cir.
2010)) (refusing to dismiss FDCPA claims that occurred less
than a year before plaintiff filed the Complaint even though
one FDCPA violation occurred more than a year before the
plaintiff filed the Complaint). Plaintiff filed this suit on
November 29, 2016. See Doc. 1. Thus, the only
actionable claims are those that accrued on or after November
argues that the court should equitably toll the FDCPA statute
of limitations for the actions defendant took in 2011.
“[E]quitable tolling pauses the running of, or
‘tolls, ' a statute of limitations when a litigant
has pursued [her] rights diligently but some extraordinary
circumstance prevents [her] from bringing a timely
action.” Lozano v. Montoya Alvarez, 134 S.Ct.
1224, 1231-32 (2014). “[S]uits between private parties
are presumptively subject to equitable tolling.”
United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1630
(2015). One way to rebut this presumption is to show that a
statute of limitations is jurisdictional.Id. The
Tenth Circuit has not yet decided whether the FDCPA's
statute of limitations is jurisdictional. See
Johnson, 305 F.3d at 1115 (“We do not need to
decide whether [the FDCPA's] statute of limitations is
jurisdictional or not . . . .”). Only two circuits have
decided this issue. The Ninth Circuit views the FDCPA statute
of limitations as non-jurisdictional. Mangum v. Action
Collection Serv., Inc., 575 F.3d 935, 940 (9th Cir.
2009). In contrast, the Eighth Circuit views it as
jurisdictional. Hageman v. Barton, 817 F.3d ...