Hammond v. Keeton

Filing 16

MEMORANDUM OPINION and ORDER; Defendant Janice Keeton is ordered to file a copy of the state court's July 17, 2013 order dismissing Hammond's cross-claim, together with copies of any motion to dismiss the cross-claim and any briefs that wer e filed in support or in opposition to such a motion on or before April 15. 2014; if Keeton fails to fully comply with this order or to provide the court with all information necessary in order to rule on her motion to dismiss, the motion will be denied. Signed by Judge C Lynwood Smith, Jr on 04/11/14. (SPT )

FILED
2014 Apr-11 AM 10:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
CHAD E. HAMMOND,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
JANICE KEETON,
Defendant.

Civil Action No. 3:14-CV-059-CLS

MEMORANDUM OPINION AND ORDER
Plaintiff, Chad Hammond, who is proceeding pro se, asserts a claim against
defendant, Janice Keeton, for violation of the Fair Debt Collection Practices Act (“the
Act”), 15 U.S.C. § 1692 et seq.1 The case currently is before the court on defendant’s
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).2 Upon
consideration of the motion, briefs, and accompanying materials, the court concludes
that more information is necessary before the motion can be decided.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6), which permits a party to move to
dismiss a complaint for, among other reasons, “failure to state a claim upon which
1
2

Doc. no. 1 (Complaint).

Doc. no. 9. The motion was styled as a motion to dismiss or, in the alternative, for
summary judgment. This court entered an order on March 3, 2014, finding that it was not necessary
to convert the motion to one for summary judgment, even though it was accompanied by evidentiary
material. Accordingly, the motion will be considered as a motion to dismiss. Doc. no. 10.

relief can be granted,” must be read in conjunction with Rule 8(a), which requires that
a pleading contain only a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that pleading standard
does not require “detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 544
U.S. 544, 550 (2007), it does demand “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted).
A pleading that offers “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action will not do.” [Twombly, 550 U.S.,
at 555]. Nor does a complaint suffice if it tenders “naked assertion[s]”
devoid of “further factual enhancement.” Id., at 557.
To survive a motion to dismiss founded upon Federal Rule of
Civil Procedure 12(b)(6), [for failure to state a claim upon which relief
can be granted], a complaint must contain sufficient factual matter,
accepted as true, to “state a claim for relief that is plausible on its face.”
Id., at 570. 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., at 556. The
plausibility standard is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a defendant has acted
unlawfully. Ibid. Where a complaint pleads facts that are “merely
consistent with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id., at 557
(brackets omitted).
Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
2

statements, do not suffice. Id., at 555 (Although for the purposes of a
motion to dismiss we must take all of the factual allegations in the
complaint as true, we “are not bound to accept as true a legal conclusion
couched as a factual allegation” (internal quotation marks omitted)).
Rule 8 marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim for relief survives
a motion to dismiss. Id., at 556. Determining whether a complaint states
a plausible claim for relief will, as the Court of Appeals observed, be a
context-specific task that requires the reviewing court to draw on its
judicial experience and common sense. 490 F.3d, at 157-158. But
where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged — but it
has not “show[n]” — “that the pleader is entitled to relief.” Fed. Rule
Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. at 678-79 (emphasis supplied).
II. ALLEGATIONS OF PLAINTIFF’S COMPLAINT
A.

Alleged Debt Collection Activities
Defendant, Janice Keeton, is an attorney practicing in Lauderdale County,

Alabama.3 On behalf of her client, RCHP-Florence, LLC d/b/a ECM Hospital, Ms.

3

Complaint ¶ 4.

3

Keeton filed a debt collection lawsuit against plaintiff, Chad E. Hammond, a resident
of Lawrence County, Tennessee, in Small Claims Court in Lauderdale County,
Alabama. The debt collection action was assigned Case No. 2013-900378.00.4
Hammond asserts that he is a “consumer,” and Keeton is a “debt collector,” as those
terms are defined by the Act.5 Hammond also appeared pro se in the debt collection
lawsuit.
In this case, Hammond challenges several of Keeton’s activities in connection
with her representation of RCHP/Florence in the underling debt collection action.
Hammond asserts that Keeton did not provide him with an “initial communication” in
connection with collection of the alleged debt, as required by the Act.6 He also asserts
that Keeton did not send him a written debt collection notice containing the language
required by the Act.7 Hammond sent Keeton a written Notice of Dispute of Alleged
4

Id. ¶¶ 2, 8-9.

5

Id. ¶¶ 3, 5. The Act defines a “consumer” as “any natural person obligated or allegedly
obligated to pay any debt.” 16 U.S.C. § 1692a(3). A “debt collector” is defined as “any person who
uses any instrumentality of interstate commerce or the mails in any business the principal purpose
of which is the collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another.” 16 U.S.C. § 1692a(6).
6

Complaint ¶ 10.

7

Complaint ¶ 12. In support of this allegation, Hammond cites 16 U.S.C. § 1692g, which
provides, in pertinent part:
Notice of debt; contents
Within five days after the initial communication with a consumer in
connection with the collection of any debt, a debt collector shall, unless the
following information is contained in the initial communication or the consumer has

4

Debt after he received his summons in the debt collection lawsuit,8 but Keeton never
responded to that notice, as allegedly required by the Act.9 Keeton also did not provide
Hammond with the name and address of the original creditor, even though he requested
that information in writing.10 Keeton neither verified the validity of the alleged debt,
nor ceased collection activity after receiving Hammond’s Notice of Dispute of Alleged
Debt.11 Instead, she proceeded with the debt collection action in Small Claims Court.12
paid the debt, send the consumer a written notice containing —
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of
the notice, disputes the validity of the debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing
within the thirty-day period that the debt, or any portion thereof, is disputed, the debt
collector will obtain verification of the debt or a copy of a judgment against the
consumer and a copy of such verification or judgment will be mailed to the consumer
by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day
period, the debt collector will provide the consumer with the name and address of the
original creditor, if different from the current creditor.
15 U.S.C. § 1692g(a).
8

Complaint ¶ 13. See also id. at Exhibit A (Notice of Dispute of Alleged Debt).

9

Complaint ¶ 14. See 15 U.S.C. § 1692g(a)(4).

10

Complaint ¶ 15. See 15 U.S.C. § 1692g(a)(5).

11

Complaint ¶¶ 16-17. See 15 U.S.C. § 1692g(a)(4); 15 U.S.C. § 1692g(b) (“If the consumer
notifies the debt collector in writing within the thirty-day period described in subsection (a) of this
section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and
address of the original creditor, the debt collector shall cease collection of the debt, or any disputed

5

Hammond asserts that Keeton’s actions “breached the law and her lawful duty
to [Hammond] by violating his federally protected consumer rights through
noncompliance with [the Act’s] debt collection practices.”13 That breach of the law
“proximately caused [Hammond] to suffer money loss, mental and emotional distress,
embarrassment and humiliation.”14
B.

Other Facts Related to the Underlying Debt Collection Lawsuit
Hammond also alleges that Keeton “obtained a default judgment against [him]

in small claims court without verifying the alleged debt,”15 and that Keeton “was
granted an additional $500.00 attorney fee upon her request to the trial court because
[Hammond] raised the federal issue of FDCPA requirements for debt collector
[Keeton.]”16 The documents submitted by Keeton in support of her motion to dismiss
clarify those allegations.

A September 4, 2013 order of the Circuit Court of

Lauderdale County in the underlying debt collection lawsuit states:
THIS CAUSE came before the Court for trial. District Judge
Carole Medley having recused herself this cause was assigned to the
portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or
the name and address of the original creditor, and a copy of such verification or judgment, or name
and address of the original creditor, is mailed to the consumer by the debt collector.”).
12

Complaint ¶ 18.

13

Id.¶ 26 (alterations supplied).

14

Id. ¶ 27 (alteration supplied). See also id. ¶¶ 21-22.

15

Id. ¶ 19 (alteration supplied).

16

Id. ¶ 20 (alterations supplied).

6

undersigned Circuit Judge sitting specially as District Judge for
Lauderdale County.
On May 23, 2013 plaintiff filed a small claim action against
defendant claiming defendant owed plaintiff one thousand thirty-eight
dollars and ninety-five cents ($1,038.95) for services and/or goods
rendered. On June 11, 2013 defendant, acting pro se, filed an answer
denying responsibility and filed a “Motion to Dismiss for Lack of
Jurisdiction” and “Motion to Strike Sham Complaint” and a “Cross-Claim
Complaint” making bizarre allegations against the attorney for the
plaintiff.
On July 17, 2013 this court denied defendant’s Motion to Strike,
denied defendant’s Motion to Dismiss and granted plaintiff’s Motion to
Dismiss Cross-Complaint.
Thereafter the defendant filed a plethora of motions challenging the
court’s jurisdiction and procedures in a transparent attempt to defeat this
simple collection process. This court denied those spurious attempts and
proceeded to trial. Plaintiff called defendant as [its] first witness. Mr.
Hammond refused to testify and when the court insisted unless he
asserted some constitutional privilege the defendant offered to allow the
court to enter a default judgment against him. This offer was accepted by
the plaintiff and the court.
Ms. Keeton, attorney for plaintiff, requested a judgment for
attorney fees in the amount of five hundred dollars ($500.00) in light of
the defendant’s antics. That motion was granted.
Default judgment, by consent of the defendant, is therefore
rendered in favor of the plaintiff and against the defendant in the amount
of $1,538.95 for which execution may issue.17

17

Doc. no. 9, Exhibit A (September 4, 2013 Order of the Circuit Court of Lauderdale
County, Alabama in RCHP-Florence, LLC d/b/a ECM Hospital v. Chad Hammond, Case No. SM13-900378), at 1-2 (alteration supplied).

7

Keeton also submitted a copy of the cross-claim Hammond filed against her on
June 11, 2013 in the underlying collection case.18 In that cross-claim, Hammond
asserted that Keeton was a debt collector under the Act,19 that Keeton tried to collect
an alleged debt from him by filing a complaint in the Small Claims Court for
Lauderdale County,20 and that Keeton did not provide him with any notice or
opportunity to dispute the alleged debt before filing that complaint.21 Hammond also
asserted that he sent Keeton a Notice of Dispute of Alleged Debt after receiving his
summons in the underlying debt collection action, but that Keeton refused to withdraw
the complaint against him in Small Claims Court, or to verify the alleged debt per the
Notice of Dispute of Alleged Debt.22 Accordingly, Hammond asserted that Keeton
“willfully violated all the federally mandated debt collection procedures set forth” in
the Act.23
Based on those allegations, Hammond asserted two cross claims against Keeton.
In the first cross-claim, Hammond asserted that Keeton had a duty to follow all

18

Doc. no. 9, at Exhibit B (“Cross-Claim/Complaint” filed on June 11, 2013, in RCHPFlorence, LLC d/b/a ECM Hospital v. Chad Hammond, Case No. SM-13-900378 in the “Small
Claims Court of Lauderdale County, Alabama”).
19

Id. ¶ 2.

20

Id. ¶ 5.

21

Id. ¶ 6.

22

Id. ¶¶ 8, 11.

23

Id. ¶ 7 (emphasis in original).

8

applicable debt collection procedures set forth in the Act, but that she breached that
duty by “skipping all mandated FDCPA collection procedures in regards to
[Hammond’s] alleged debt collection.”24 Specifically, Keeton sued Hammond without
giving him any prior notice or an opportunity to dispute the alleged debt, and she
ignored Hammond’s Notice of Dispute of Alleged Debt.25 As a result of those actions,
Hammond asserted that he “suffered loss of time from business and family, money
damages and emotional stress,”26 and he requested relief in the amount of $5,000.00,
“together with such other and further relief as the Court may deem reasonable and just
under the circumstances.”27 The second cross-claim is virtually identical to the first.28
III. DISCUSSION
In her motion to dismiss, Keeton asserted three conclusory arguments to support
the dismissal of Hammond’s claims against her: i.e., (1) that she is not a “debt
collector” as defined by the Act;29 (2) that Hammond “asked for a default judgment[,]
thereby negating any claim he may have in this regard”;30 and (3) that Hammond’s

24

Cross-Claim/Complaint in Case No. Sm-13-900378, at ¶¶ 13-15 (alteration supplied).

25

Id. ¶¶ 16-17.

26

Id. ¶ 18.

27

Id. (“WHEREFORE” clause).

28

Id. ¶¶ 19-25.

29

Doc. no. 9 ¶ 2.

30

Id. ¶ 3 (alteration supplied).

9

claims are barred by res judicata.31 After being ordered to file a brief more fully
developing her arguments and supporting them with legal authority,32 Keeton filed a
three-page brief, though separate counsel, asserting only the res judicata argument.33
Accordingly, Keeton’s other arguments will be deemed abandoned, and the court will
focus solely on res judicata.
When a federal court is “‘asked to give res judicata effect to a state court
judgment, [it] must apply the res judicata principles of the law of the state whose
decision is set up as a bar to further litigation.’” Kizzire v. Baptist Health System, Inc.,
441 F.3d 1306, 1308 (11th Cir. 2006) (alteration supplied) (quoting Amey, Inc. v. Gulf
Abstract & Title, Inc., 758 F.2d 1486, 1509 (11th Cir. 1985)).
Under Alabama law, “the essential elements of res judicata are (1) a prior
judgment on the merits, (2) rendered by a court of competent jurisdiction,
(3) with substantial identity of the parties, and (4) with the same cause of
action presented in both actions.” Equity Res. Mgmt., Inc. v. Vinson, 723
So. 2d 634, 636 (Ala. 1998). If all four elements are met, any claim that
was, or could have been, adjudicated in the prior action is barred from
future litigation. Id.
Kizzire, 441 F.3d at 1308-09. See also Chapman Nursing Home, Inc. v. McDonald,
985 So. 2d 914, 919 (Ala. 2007) (same).
31

Id. ¶ 4.

32

See doc. no. 10, at 3 n.7 (“Defendant’s motion [to dismiss] contains one page of
conclusory, underdeveloped assertions. Those assertions must be more fully developed and
supported by legal authority.”) (alteration supplied).
33

Doc. no. 13. The brief actually contains only two pages of legal argument. The other page
is taken up by the heading, signature block, and certificate of service.

10

Keeton’s briefing on the res judicata issue is confused.34 Keeton asserts that
Hammond’s claims against her in this case are barred by the judgment entered by the
state court on the cross-claim Hammond asserted against her in the underlying
collection action. While that may ultimately be a successful legal argument, Keeton
has not provided a proper foundation to support it. Keeton states that the cross-claim
Hammond filed in state court was dismissed on September 4, 2013, after Hammond
refused to testify at trial and had a default judgment entered against him. That is not
correct. As is apparent from the state court documents submitted by Keeton in support
of her motion to dismiss, the underlying collection action asserted by Keeton’s client,
RCHP-Florence, LLC, against Hammond, was dismissed on September 4, 2013, when
default judgment was entered against Hammond.35 But that particular “judgment on
the merits” is not the one that is relevant to the res judicata issue raised here. Instead,
Hammond’s state court cross-claim is the relevant pleading because it contained Fair
Debt Collection Practices Act allegations that are similar to the ones asserted in this
case. By the time judgment was entered in the underlying state court collection action
on September 4, 2013, the cross-claim had already been dismissed on July 17, 2013.36
34

That confusion is both surprising and frustrating, considering that Keeton is herself an
attorney, and she is also represented by a different attorney with regard to the claims asserted against
her in this case.
35

See doc. no. 9, at Exhibit A.

36

Id. at 1.

11

There is no copy of the July 17, 2013 order dismissing the cross-claim in this court’s
record. Thus, there is no way to determine whether it was a judgment on the merits,
or whether the state court had jurisdiction to enter the judgment.
IV. CONCLUSION AND ORDER
Defendant Janice Keeton is ORDERED to file a copy of the state court’s July
17, 2013 order dismissing Hammond’s cross-claim, together with copies of any motion
to dismiss the cross-claim, and any briefs that were filed in support, or in opposition
to, such a motion, on or before April 15, 2014. If Keeton fails to fully comply with this
order, or to provide the court with all information necessary in order to rule on her
motion to dismiss, the motion will be denied.
DONE and ORDERED this 11th day of April, 2014.

______________________________
United States District Judge

12