Garcia v. Midland Credit Management, Inc.

Filing 77

ORDER granting 64 Defendant's Renewed Motion in Limine to Exclude Reference to Unrelated Lawsuits, Complaints or Claims and any Reference to Damages Being Minimal. By Judge Robert E. Blackburn on 5/7/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02937-REB-BNB
CATHY GARCIA,
Plaintiff,
v.
MIDLAND CREDIT MANAGEMENT, INC.,
Defendant.

ORDER GRANTING DEFENDANT’S RENEWED MOTIONS IN LIMINE
TO EXCLUDE REFERENCE TO UNRELATED LAWSUITS, COMPLAINTS
OR CLAIMS AND ANY REFERENCE TO DAMAGES BEING MINIMAL
Blackburn, J.
The matter before me is Defendant’s Renewed Motion In Limine To Exclude
Reference to Unrelated Lawsuits, Complaints or Claims and Any Reference to
Damages Being Minimal [#64],1 filed April 27, 2015. I grant the motion
By her response [#72], plaintiff concedes to that portion of the motion that seeks
to exclude in limine any reference to unrelated lawsuits, complaints, or claims. To that
extent, therefore, the motion is granted as unopposed. However, plaintiff insists that
she should not be precluded from arguing that maximum statutory damages $1,000
available under the Fair Debt Collection Practices Act presents a minimal penalty, or
apprising the jury that this cap was set by Congress in the 1970s and has not been
adjusted since that time. I disagree.
1

“[#64]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

The competing jury instructions2 submitted for the court’s consideration on the
issue of statutory damages coincide insofar as they both suggest three factors that the
jury should consider in determining the amount of statutory damages: (1) the frequency
and persistence of defendant’s noncompliance with the Act; (2) the nature of
defendant’s noncompliance with the Act; and (3) the extent to which defendant’s
noncompliance with the Act was intentional. See 15 U.S.C. § 1692k(b)(1). As should
be readily apparent, these considerations focus entirely on defendant’s noncompliance
with the mandates of the FDCPA. There is no manner in which a reference to the
allegedly de minimis nature of the statutory cap or its failure to keep pace with some
more contemporary benchmark is of any relevance to the issues properly before the

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On first glance, the language of the statute would seem to indicate that the amount of statutory
damages to be awarded is for the court. (See 15 U.S.C. § 1692k(b) (addressing “[f]actors considered by
[the] court,” and providing that “[i]n determining the amount of liability in any action under subsection (a) of
this section, the court shall consider” various factors)) (emphases added). Nevertheless, at least two
federal courts of appeals have found that plaintiffs are entitled to a jury question on the issue of statutory
damages in an FDCPA case, holdings on which Judge Brimmer relied last year in deciding that such
question should be submitted to the jury:
The Seventh and Eleventh Circuits have held that plaintiffs have a right to
a jury trial in this context. See Kobs v. Arrow Serv. Bureau, Inc., 134
F.3d 893, 898 (7th Cir. 1998) (Ҥ 1692k(a)(2) of the FDCPA provides for
trial by jury in determining statutory additional damages”); Sibley v.
Fulton DeKalb Collection Serv., 677 F.2d 830, 832 (11th Cir. 1982) (“It
has been frequently determined, however, that the word ‘court,’ used in
the [FDCPA] and in the remedial portions of numerous other statutes,
encompasses trial by both judge and jury rather than by judge alone.”)
The Court finds this authority persuasive. Trial will proceed, as
scheduled, on plaintiff's request for statutory damages.
Lassiter v. Integrity Solution Services, Inc., 2014 WL 1040677 at *6 (D. Colo. March 18, 2014). Judge
Arguello also has submitted the issue of statutory damages to the jury in two other recent cases. See
Lassiter v. Integrity Solution Services, Inc., Civil Action No. 12-cv-02992-CMA-MJW, Final Jury
Instructions at 20 [#67], filed April 14, 2014; Santacruz v. Standley and Associates, LLC et al., Civil
Action No. 10-cv-00623-CMA-CBS, Final Jury Instructions at 14 [#57], filed March 29, 2011.

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jury.3 Reference to such considerations can only serve to permit the jury to infer that
the statutory maximum is less than adequate compensation and invite them to award
the maximum regardless of the facts. Thus, the proposed evidence is irrelevant as
defined by Fed. R. Evid 401 and thus inadmissible under Fed. R. Evid. 402. Additionally,
the dubious probativity of such evidence is substantially outweighed by the danger of
confusing the issues and misleading the jury; thus, the evidence is excludable under
Fed. R. Evid. 403.
THEREFORE, IT IS ORDERED as follows:
1. That Defendant’s Renewed Motion In Limine To Exclude Reference to
Unrelated Lawsuits, Complaints or Claims and Any Reference to Damages Being
Minimal [#64], filed April 27, 2015, is granted; and
2. That pending further order, all parties are precluded and prohibited from
arguing or offering evidence in the presence of the jury characterizing or suggesting that
the statutory maximum damages cap is minimal or apprising the jury that the cap has
not been raised since it was first enacted in 1977.
Dated May 7, 2015, at Denver, Colorado.
BY THE COURT:

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Moreover, it is not at all clear to the court what evidentiary basis plaintiff intends to provide to
substantiate such an argument. In this regard, it strikes the court that there also is potential to run afoul
of the dangers of undue delay and waste of time proscribed by Rule 403.

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