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Bevan v. Butler & Associates, P.A.

United States District Court, D. Kansas

December 22, 2017

COURTNEY BEVAN f/k/a Courtney Amack, Plaintiff,
BUTLER & ASSOCIATES, P.A., et al., Defendant.



         This 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.

         I. Facts

         The following facts come from plaintiff's First Amended Complaint[1] (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.

         This 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.

         Throughout 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”).[2]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, Texas.

         Defendant 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 reinstated.”

         Defendant 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.”

         On 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.[3]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 address.[4]

         On 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 garnishment.

         After 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 her.[5] Defendant did not provide any information about the debt that the second lawsuit had relied on for its allegations

         Plaintiff 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.[6]

         II. Claims Asserted

         Plaintiff 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).

         III. Legal Standard

         On a 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)).

         Although 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 omitted)).

         When 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)).

         A court 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).

         Here, 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.

         IV. Discussion

         A. FDCPA (Count I)

         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)).

         Defendant 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.

         1. Rooker-Feldman Doctrine

         Under 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.

         Here, 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 jurisdiction.

         So the court now considers defendant's arguments that plaintiff has failed to state a claim for relief under the FDCPA.

         2. Statute of Limitations

         A 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 29, 2015.[7]

         Plaintiff 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.[8]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 ...

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