Rodriguez v. Luchey & Mitchell Recovery Solutions, LLC et al.

Filing 34

ORDER. All of plaintiff's claims against Terette Haugabook are dismissed. This case is closed in its entirety. By Judge Philip A. Brimmer on 5/30/13. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-03035-PAB-KMT
MARINA RODRIGUEZ,
Plaintiff,
v.
LUCHEY & MITCHELL RECOVERY SOLUTIONS, LLC,
TERETTE HAUGABOOK, and
JOHN DOE CORPORATION,
Defendants.

ORDER

This matter is before the Court on the Response to the Order to Show Cause
[Docket No. 33] filed by plaintiff Marina Rodriguez. On March 14, 2013, plaintiff moved
for entry of default and entry of default judgment [Docket No. 24] pursuant to Federal
Rules of Civil Procedure 55(a) and 55(b) against defendants Luchey & Mitchell
Recovery Solutions, LLC (“Luchey”) and Terette Haugabook.1 On March 15, 2013, the
Clerk of the Court entered default against defendants. Docket No. 25. On May 22,
2013, the Court entered default judgment against Luchey, but denied the entry of
default judgment against Ms. Haugabook. Docket No. 31 at 9. The Court declined to
enter default judgment against Ms. Haugabook because plaintiff had not sufficiently
alleged “that Ms. Haugabook personally participated in the collection activities

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On March 12, 2013, plaintiff voluntarily dismissed Christopher Dobbins from this
case. Docket No. 20.

surrounding the October 5, 2012 phone call, such as making the telephone call or
directing one of her subordinates to do so.” Docket No. 31 at 7 (citation omitted). The
Court went on to state that, because plaintiff “alleges only generalities and does not
allege that Ms. Haugabook personally participated in the specific collection activity at
issue in this case, plaintiff does not provide sufficient facts to establish that Ms.
Haugabook violated §§ 1692d or 1692e of the FDCPA.” Id.
On May 23, 2013, the Court ordered plaintiff to show cause [Docket No. 32] why
her claims against Ms. Haugabook should not be dismissed for failure to state a claim.
In her response to the order to show cause, plaintiff states that the Court may properly
enter default judgment against Ms. Haugabook because of the following facts alleged in
the complaint:
1. Defendant Terette Haugabook (“Ms. Haugabook”) is an individual who
is a member of Luchey, and at all relevant times, was engaged by use of
the mails and telephone, in the business of attempting to collect a “debt”
from Plaintiff, as defined by 15 U.S.C. § 1692a(5). (Doc. 1 at ¶9)
2. Ms. Haugabook was regularly engaged, directly or indirectly, in the
collection of Plaintiff’s debt. (Doc. 1 at ¶10).
3. Ms. Haugabook was personally involved in the collection of Plaintiff’s
debt. (Doc. 1 at ¶11).
4. Ms. Haugabook was materially involved in the collection of Plaintiff’s
debt. (Doc. 1 at ¶12).
5. Ms. Haugabook materially participated in Luchey’s debt collection
activities. (Doc. 1 at ¶13).
6. Ms. Haugabook was involved in the day-to-day operations of Luchey’s
debt collection business. (Doc. 1 at ¶14).
7. Ms. Haugabook exercised control over the affairs of Luchey’s debt
collection business. (Doc. 1 at ¶15).
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Docket No. 33 at 2-3. In addition, plaintiff states that the “majority of federal courts . . .
have found that employees of debt collection companies can be held personally liable
under the FDCPA.” Docket No. 33 at 1 (citation omitted).
Although the Tenth Circuit has yet to rule on whether individual defendants may
be liable for violations of the FDCPA, several district courts have concluded that
individual officers and employees of collection agencies may be liable for FDCPA
violations in some circumstances. See Brumbelow v. Law Offices of Bennett &
Deloney, P.C., 372 F. Supp. 2d 615, 618 n. 3 (D. Utah 2005) (citing cases). However,
for a court to find an individual liable under the FDCPA, “the individual must have been
personally involved in the unlawful collection effort.” Derisme v. Hunt Leibert Jacobson,
P.C., 880 F. Supp. 2d 339, 373 (D. Conn. 2012). In this case, the unlawful collection
effort is the October 5, 2012 phone call placed to plaintiff’s cell phone. Docket No. 1 at
4-5 ¶ 29.
As noted in the Court’s previous order, plaintiff’s complaint is devoid of any
specific allegation linking Ms. Haugabook to the October 5, 2012 phone call. Although
plaintiff alleges that Ms. Haugabook participated in Luchey’s “day-to-day” operations
and “exercised control over” Luchey’s affairs, the complaint does not allege what those
day-to-day operations are and how they specifically relate to the October 5, 2012 phone
call. Cf. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007) (“[T]o state a claim in federal court, a complaint must explain what each
defendant did to him or her; when the defendant did it; how the defendant’s action
harmed him or her, and what specific legal right the plaintiff believes the defendant
violated”). Similarly, plaintiff’s allegations that Ms. Haugabook “materially participated in
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Luchey’s debt collection activities,” “was personally involved in the collection of
Plaintiff’s debt,” and “regularly engaged, directly or indirectly, in the collection of
Plaintiff’s debt” are wholly conclusory because they merely recite the elements of an
FDCPA claim and do not sufficiently allege Ms. Haugabook’s personal participation in
the events of October 5, 2012. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting
that “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements” are insufficient to state a claim). Moreover, the cases plaintiff
cites in her response do not support her argument because these cases find liability
against individual employees of debt collection agencies based on these employees’
personal participation in the collection of the debt at issue. See, e.g., Cruz v. Int’l
Collection Corp., 673 F.3d 991, 999 (9th Cir. 2012) (finding that individual defendant
officer of the collection agency was liable under the FDCPA because he “was
personally involved in at least one violation” when he “signed [a] letter,” followed by his
own initials, which contained false assertion that agency was entitled to collect interest
on principal claimed as due); Kistner v. Law Offices of Michael P. Margelefsky, LLC,
518 F.3d 433, 438 (6th Cir. 2008) (finding individual liability against one of two attorney
defendants working at the collection agency because defendant “admitted in his
deposition that he drafted the form letter that was sent to [plaintiff], . . . is the only
member of the LLC, and is the one who negotiates terms with the mailing service
provider used in the debt-collection practice”); Schwarm v. Craighead, 552 F. Supp. 2d
1056, 1073 (E.D. Cal. 2008) (finding plaintiff individually liable because, among other
things, he “oversaw [ ]collecting debts pursuant to contracts with the district attorneys’
offices . . . he was one of only three individuals that had final authority over [debt
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collectors’] collection procedures . . . [he] also developed the automated software [the
debt collector] used and was solely responsible for managing and maintaining the
automated computer system that implemented [the debt collectors’] collection
program”); Teng v. Metro. Retail Recovery, Inc., 851 F. Supp. 61, 67 (E.D.N.Y. 1994)
(finding that individual employees of debt collector were liable because they “actually
made the actionable phone calls”); Brink v. First Credit Resources, 57 F. Supp. 2d 848,
852 (D. Ariz. 1999) (finding that plaintiff asserted a valid claim against the officers of the
company after plaintiff was allowed to amend his complain to “add allegations that
Fayazi and Merkwan violated provisions of the FDCPA by approving, authorizing, or
participating in sending the alleged collection letter at issue”) (emphasis added); Piper
v. Portnoff Law Assocs., 274 F. Supp. 2d 681, 689 (E.D. Pa. 2003) (noting that the
individual defendants were not entitled to summary judgment because “plaintiff ha[d]
shown that the individual defendants both signed debt collection letters, or authorized
others to sign the letters for them”).
Because plaintiff’s complaint does not sufficiently allege that Ms. Haugabook
personally participated in the alleged violation of the FDCPA at issue in this case and
plaintiff’s response to the order to show cause does not provide any information curing
this deficiency, the Court will dismiss plaintiff’s claims against Ms. Haugabook for failure
to state a claim. Ashcroft, 556 U.S. at 678.
Accordingly, it is
ORDERED that all of plaintiff’s claims against Terette Haugabook are dismissed.
It is further

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ORDERED that this case is closed in its entirety.

DATED May 30, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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