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Dunn v. Adams, Stepner, Woltermann, & Dusing, PLLC

United States District Court, E.D. Kentucky, Northern Division, Covington

November 19, 2019




         This 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 denied.


         On 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[1] 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.

         On 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 4).

         Despite 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.

         After 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.

         In 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).

         II. ANALYSIS

         A. Standard of Review

         Federal 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 unlawfully.” Id.

         In 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)).

         B. ASW&D Motion to Dismiss

         In the 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.

         In 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.

         1. Statute of Limitations

         The 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.

         The 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).

         ASW&D's 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[2] 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.

         2. Failure to State a Claim

         Next, 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).

         In 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.”[3]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 result, ...

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