United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. BUNNING, UNITED STATES DISTRICT JUDGE
matter is before the Court on Motions to Dismiss (Docs. # 15
and 16) brought by Defendants Adams, Stepner, Woltermann,
& Dusing, PLLC, and Zimmer Motor, Inc. Both Motions
having been fully briefed, (Docs. # 17, 18, and 19), they are
now ripe for the Court's review. For the reasons set
forth herein, the Motions to Dismiss are
FACTUAL AND PROCEDURAL BACKGROUND
September 28, 2016, the son of Plaintiff Patrick Dunn got
into an automobile accident while driving his family's
2014 Jeep Grand Cherokee. (Doc. # 6 at 2). The next day, Dunn
took the Jeep to Defendant Zimmer Motor, Inc. to have it
repaired; he was assured the repairs would be completed in a
timely manner. Id. However, the Jeep repairs took
over four months. Id. at 3. Dunn was notified on
January 26, 2017 that the Jeep was ready for pickup, but
when he went to retrieve the car on Friday, January 27, 2017,
Dunn was informed that there was no one around who could
release the Jeep and he would have to return the following
Monday. Id. When Dunn returned on Monday, January
30, 2017 to retrieve the Jeep from Zimmer Motor, he was told
that he would have to sign a “Written
Confirmation” in order to have the vehicle released.
Id. Dunn attempted to speak to Rich Zimmer, the
agent in charge of operations, but was told Zimmer was
unavailable. Id. at 2-3. Dunn refused to sign any
documents, but eventually the car was released to him.
Id. at 3. Dunn made numerous attempts to contact
Rich Zimmer following the release of the car but was unable
to reach him. Id.
March 23, 2017, Defendant Adams, Stepner, Woltermann, &
Dusing, PLLC (ASW&D), counsel for Zimmer Motor, made a
written demand to Dunn for payment of $14, 648.99 owed for
the Jeep repairs. Id. The demand included a
document, purportedly signed by Dunn on January 27, 2017,
entitled “written confirmation of the amount
owed” (“Written Confirmation 1”).
Id. at 4; (Doc. # 6-2). Dunn, however, claims he
signed no such document; Dunn's attorney informed
ASW&D twice that the document was a forgery. (Doc. # 6 at
this, Zimmer Motor filed suit in Boone County Circuit Court
on January 16, 2018, demanding payment of the $14, 648.99.
Id. The “pleadings included a copy of Written
Confirmation No. 1, and other exhibits.” Id.
As part of discovery, Zimmer Motor produced two written
confirmation documents (again producing Written Confirmation
1 and providing a second document the Court will refer to as
“Written Confirmation 2”), both of which
allegedly were signed by Dunn, but which Dunn
“confirmed . . . were forgeries.” Id.
Additionally, Rich Zimmer and his employee Amanda Dorger gave
conflicting accounts about who Dunn spoke to when he picked
up the Jeep, who actually signed the confirmations, and who
witnessed the signing of the confirmations, among other
things. Id. at 4-5. Dunn alleges that “[i]n
sum, when confronted with the forged signatures, Rich Zimmer
and Amanda Dorger each point to each other as the person
before whom Plaintiff or his wife signed the written
confirmation” and also alleges that Zimmer and
Dorger's accounts of what happened “are
irreconcilably inconsistent with one another.”
Id. at 5. Dunn claims this lends support to his
allegation that Zimmer Motor forged Dunn's signature on
the written confirmations; Dunn also claims that Zimmer Motor
put forth a falsified invoice in support of the Boone County
Circuit Court case. Id. at 6.
consulting with an expert who “reported that the [two
written confirmations] were not signed by the same person,
” Dunn attempted to amend his state court pleadings to
add a counterclaim. Id. Specifically, Dunn wanted to
allege that Zimmer Motor's actions violated the Kentucky
Consumer Protection Act (KCPA). Id. The Motion to
Amend was denied, however, and Plaintiff ultimately settled
the state case by paying the amount demanded by ASW&D,
after which Zimmer Motor dismissed the claims against Dunn.
Id. at 7.
light of these events, Dunn brought this action in federal
court on January 15, 2019. (Doc. # 1). Dunn alleges that
Zimmer Motor violated the KCPA and that ASW&D violated
the Federal Debt Collection Practices Act (FDCPA) and seeks
compensatory, statutory, and punitive damages. Id.
at 7-10. After Dunn filed an Amended Complaint on February
11, 2019, id. at 1-10, both Defendants moved to
dismiss the Amended Complaint. (Docs. # 15 and 16). Following
briefing, the Motions became ripe on April 30, 2019. (Docs. #
17, 18 and 19).
Standard of Review
Rule of Civil Procedure 12(b)(6) allows parties to move for
dismissal of a complaint when it “fail[s] to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12. In order “[t]o survive a motion to dismiss, a
complaint must provide ‘a short and plain statement of
the claim showing that the [plaintiff] is entitled to
relief.”' Doe v. Baum, 930 F.3d 575, 580
(6th Cir. 2018) (quoting Fed.R.Civ.P. 8(a)(2)). In reviewing
a complaint, the Court “construe[s] the complaint in
the light most favorable to the plaintiff, accept[s] all
well-pleaded factual allegations as true, and examine[s]
whether the complaint contains sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Hill v. Snyder, 878
F.3d 193, 203 (6th Cir. 2017) (internal quotations omitted)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007))). Allegations are plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. The allegations do not need to show that liability is
probable, but the plausibility standard “asks for more
than a sheer possibility that a defendant has acted
reviewing a 12(b)(6) motion to dismiss, the Court “may
consider the complaint and any exhibits attached thereto,
public records, items appearing in the record of the case,
and exhibits attached to the defendant's motion to
dismiss, so long as they are referred to in the complaint and
are central to the claims contained therein.”
DeJohn v. Lerner, Sampson & Rothfuss, No.
1:12CV1705, 2012 WL 6154800, at *2 (N.D. Ohio Dec. 11, 2012)
(citing Amini v. Oberlin Coll., 259 F.3d 493, 502
(6th Cir. 2001)).
ASW&D Motion to Dismiss
Amended Complaint, Patrick Dunn alleges that ASW&D
“use[d] . . . forged documents and adulterated
invoices” in support of the debt-collection action in
Kentucky state court in violation of the FDCPA. (Doc. # 6 at
10). Specifically, Dunn alleges that these actions violate
the FDCPA prohibition on debt collectors “using false,
deceptive, or misleading representations or means in
connection with the collection of any debt, including the use
or distribution of any written communication which creates a
false impression as to its source, authorization, or
approval.” Id. at 9.
support of its Motion to Dismiss the FDCPA claim against it,
ASW&D appears to puts forth two main arguments-(1) that
the claim is barred by the FDCPA's one-year statute of
limitations, and (2) that the Plaintiff has failed to alleged
facts that state a plausible claim for relief under the
FDCPA. (Doc. # 16-1 at 4-9). Each will be addressed in turn.
Additionally, in response to ASW&D's Motion to
Dismiss, Plaintiff Dunn argues, among other things, that the
claim brought against ASW&D is not barred by res
judicata. (Doc. # 17 at 4-5). Defendant ASW&D, however,
does not appear to have explicitly argued that the claim
against it should be dismissed because it was barred by res
judicata. See (Docs. # 16-1 and 19). Rather, some of
ASW&D's comments in its initial Motion seem to
suggest that ASW&D may be asserting a res-judicata
argument. See, e.g., (Doc. # 16-1 at 5) (suggesting
that “Plaintiff is seeking to relitigate the underlying
case, ” and the “order of dismissal in the
underlying case operates as an adjudication on the
merits”). Out of an abundance of caution, the Court
will also review whether the claim against ASW&D is
barred by res judicata.
Statute of Limitations
Court first considers the threshold issue of whether the
FDCPA claim brought against ASW&D is barred by the
statute of limitations. (Doc. # 16-1 at 7-9). A motion to
dismiss “is generally an inappropriate vehicle for
dismissing a claim based upon the statute of
limitations.” Jodway v. Orlans, PC, 759
Fed.Appx. 374, 379 (6th Cir. 2018) (quoting Cataldo v.
U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012)).
Such a motion should be granted, however, “if the
allegations in the complaint affirmatively show that the
claim is time-barred.” Id. (quoting Lutz
v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th
Cir. 2013)). As statute of limitations “is an
affirmative defense, the burden is on the defendant to show
that the statute of limitations has run.” Id.
(quoting Campbell v. Grand Trunk W. R.R. Co., 238
F.3d 772, 775 (6th Cir. 2001)). Unfortunately for ASW&D,
it has not made such a showing here.
FDCPA requires that “an action to enforce any
liability” under 15 U.S.C. § 1692e, the at-issue
subsection, see infra, must be brought “within
one year from the date on which the violation occurs.”
15 U.S.C. § 1692k(d); see also Filinger v. Lerner
Sampson & Rothfuss, 624 Fed.Appx. 338, 340 (6th Cir.
2015). ASW&D asserts that the Plaintiff alleged as early
as March of 2017 that the document used in the state
debt-collection action was forged but that Dunn did not
commence this lawsuit until over one year later. (Doc. # 61-1
at 7-8). As a result, ASW&D claims that “the
applicable one- year time period has long since run to give
this court any jurisdiction to hear Plaintiff's First
Amended Complaint”. (Doc. # 61-1 at 7-8).
argument is misguided. “[W]hen a debt collector
initiates a deceptive, abusive, or otherwise unfair lawsuit,
there is no doubt that the FDCPA claim-insofar as it is
viable-accrues on that date.” Smith v. Lerner,
Sampson & Rothfuss, L.P.A., 658 Fed.Appx. 268, 273
(6th Cir. 2016) (quoting Slorp v. Lerner, Sampson &
Rothfuss, 587 Fed.Appx. 249, 258 (6th Cir. 2014));
see also Jodway, 759 F.Appx. at 379-80. The
initiation of such a suit is a “discrete, immediately
actionable event.” Slorp, 587 Fed.Appx. at
258. Here, Plaintiff alleges that debt
collector ASW&D put forth fraudulent
documentation in support of its state debt-collection action
in violation of the FDCPA. (Doc. # 6 at 10). Thus, Plaintiff
alleges that the state court action was based on
misrepresentations, see generally (Doc. # 6 at
8-10), and the Court finds that such a suit could be
considered deceptive or unfair. Accordingly, a FDCPA claim
would accrue on the date of the filing of the state court
debt-collection action. See Smith, 658 F. App's
at 273. The state court action was filed on January 16, 2018.
(Doc. # 6 at 4). As this federal action was filed on January
15, 2019, less than one year after the filing of the state
court action, the FDCPA claim against ASW&D is not barred
by the statute of limitations.
Failure to State a Claim
the Court turns to ASW&D's argument that the
Plaintiff's allegations do not state a plausible claim
for relief under the FDCPA. ASW&D argues that a FDCPA
claim is not stated because ASW&D's collection action
sought to recover the amount owed, which was ultimately
recovered via settlement, and that “no additional
interest, fee or other charge of any kind was collected by
ASW&D from plaintiff.” (Doc. # 16-1 at 4-7);
see also (Doc. # 19 at 3-4).
order to “state a claim under the FDCPA, a plaintiff
must show that a defendant violated one of the substantive
provisions of the FDCPA while engaging in debt collection
activity.”Clark v. Lender Processing
Servs., 562 Fed.Appx. 460, 465-66 (6th Cir. 2014)
(citing Glazer v. Chase Home Fin. LLC, 704 F.3d 453,
459-60 (6th Cir. 2013)). “The FDCPA governs debt
collection in or out of court; it does not allow debt
collectors to use litigation as a vehicle for abusive and
unfair practices that the Act forbids.” Stratton v.
Portfolio Recovery Assocs., LLC, 770 F.3d 443, 451 (6th
Cir. 2014). In stating a plausible claim under the FDCPA,
because “[t]he FDCPA is a strict-liability statute
[a] plaintiff need not prove knowledge or intent . . . and
does not have to have suffered actual damages.”
Id. at 448-49 (internal citations omitted). As a