Jacobson v. Credit Control Services, Inc.

Filing 22

ORDER granting 15 Defendant Credit Control Services, Inc.s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1),.Plaintiffs Complaint is DISMISSED WITHOUT PREJUDICE, by Judge Wiley Y. Daniel on 9/17/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03307-WYD-MJW
ROSE JACOBSON,
Plaintiff,
v.
CREDIT CONTROL SERVICES, INC., a
Delaware corporation,
Defendant.

ORDER

I.

INTRODUCTION AND BACKGROUND
This matter is before the Court on the Defendant Credit Control Services, Inc.’s

Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) (ECF No. 15).
On December 9, 2013, Plaintiff Rose Jacobson filed a complaint alleging that
Defendant violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.
(“FDCPA”). Plaintiff claims that the Defendant violated the FDCPA by, among other
things, making false representations in connection with its attempts to collect Plaintiff’s
debt. (Compl. ¶¶ 1-62). In her prayer for relief, Plaintiff seeks “[d]amages pursuant to
15 U.S.C. § 1692k(a)” and “[r]easonable attorneys fees and costs pursuant to 15 U.S.C.
§ 1692k(a)(3).” (Compl. at 11).
On January 7, 2014, Defendant tendered Plaintiff an Offer of Judgment pursuant
to Fed. R. Civ. P. 68. (ECF No. 15-1). Rule 68 states in relevant part, “[a]t least 14
days before the date set for trial, a party defending against a claim may serve on an

opposing party an offer to allow judgment on specified terms, with the costs then
accrued.” Fed. R. Civ. P. 68(a). If a plaintiff rejects a Rule 68 offer, he or she must pay
costs incurred after the offer was made if the amount awarded at trial is less than the
offer. Fed. R. Civ. P. 68(d). Defendant’s Offer of Judgment stated that pursuant to
Fed. R. Civ. P. 68,
Defendant hereby offers to allow judgment to be taken against it in favor of
Plaintiff Rose Jacobson, ... as follows:
1) Judgment shall be entered in the total amount of One Thousand One
Dollars ($1,001.00), as against Defendant;
2) In addition, Plaintiff’s costs and reasonable attorneys’ fees are to be
added to the judgment as against Defendant; said fees and costs shall be
as are agreed to between counsel for the parties, or if they are unable to
agree, as determined by the Court upon motion; ...
(ECF No. 15-1 at 1). Plaintiff did not accept Defendant’s Offer of Judgment within
fourteen days. On May 19, 2014, the Defendant filed the pending motion to dismiss.
II.

DISCUSSION
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a

complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal
under Rule 12(b)(1) is not a judgment on the merits of a plaintiff’s case. Instead, it is a
determination that the court lacks authority to adjudicate the matter, attacking the
existence of jurisdiction rather than the allegations of a complaint. See Casteneda v.
I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of
limited jurisdiction and may only exercise jurisdiction when specifically authorized to do
so). The party asserting jurisdiction has the burden of establishing subject matter

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jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Should the court lack jurisdiction, it “must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is lacking.” Id. The dismissal
is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006).
In general, a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction
takes on two forms: a “facial attack” on the complaint’s allegations in which the court
must accept the allegations as true, and a “factual attack,” in which the court has wide
discretion to review matters outside the pleadings to resolve jurisdictional facts. Holt v.
United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) (internal citations omitted). Here,
Defendant proffers this motion as a “factual attack” with respect to subject matter
jurisdiction. When making a Rule 12(b)(1) “factual attack,” a party may rely on affidavits
or other evidence properly before the court. See New Mexicans for Bill Richardson v.
Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995); Holt, 46 F.3d at 1003. A court has
broad discretion to consider affidavits or other documents to resolve disputed
jurisdictional facts under Rule 12(b)(1). Id. In those instances, a court’s reference to
evidence outside the pleadings does not necessarily convert the motion to a Rule 56
motion for summary judgment. Id.
Section 1692k(a) of the FDCPA states, in relevant part, that debt collectors who
violate the FDCPA are liable to plaintiffs in an amount equal to the sum of: “(1) any
actual damage sustained by such person as a result of such failure; (2)(A) in the case of
any action by an individual, such additional damages as the court may allow, but not
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exceeding $1,000.” 15 U.S.C. § 1692k(a). Here, Plaintiff’s Complaint seeks damages,
reasonable attorney’s fees and costs. However, in the pending motion to dismiss,
Defendant argues that because Plaintiff filed a notice clarifying that she is waiving her
claim for actual damages, Defendant’s Offer of Judgment of $1001.00 plus attorney’s
fees and costs constituted the total relief available to Plaintiff should the case proceed
to trial. (ECF No. 14). Defendant goes on to maintain that “Plaintiff’s failure to accept
Defendant’s Offer of Judgment, which offered her in excess of what she can possibly
recover at trial renders her case moot and entitles her to no award.” (ECF No. 15 at 7).
A majority of circuits have accepted Defendant’s argument that an Offer of
Judgment for the full relief to which a plaintiff is entitled may moot a case. See Lucero
v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1243 (10th Cir. 2011) (stating
that “[w]hile [the Tenth Circuit] has yet to address the question squarely, other circuits
have concluded that if a defendant makes an offer of judgment in complete satisfaction
of a plaintiff’s claims ... the plaintiff’s claims are rendered moot because he lacks a
remaining interest in the outcome of the case”); Warren v. Sessoms & Rogers, P.A.,
676 F.3d 365, 371 (4th Cir. 2012); O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567,
574 (6th Cir. 2009); Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 (5th Cir.
2008); Weiss v. Regal Collections, 385 F.3d 337, 342 (3d Cir. 2004); Rand v. Monsanto
Co., 926 F.2d 596, 598 (7th Cir. 1991); contra Diaz v. First Am. Homes Buyers Prot.
Corp., 732 F.3d 948, 953-55 (9th Cir. 2013).
Given the authority cited above and the Tenth Circuit’s apparent approval of that
line of cases, I agree with Defendant’s argument that when an Offer of Judgment
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unequivocally offers a plaintiff all the relief she sought to obtain, the offer renders the
plaintiff’s action moot. See Warren, 676 F.3d at 371; see Lucero, 639 F.3d at 1243.
Here, because Plaintiff waived her claim for actual damages (ECF No. 14), I find that
Defendant’s unequivocal Offer of Judgment of $1001.00 plus reasonable attorney’s fees
and costs offered Plaintiff an amount that exceeds what she can recover pursuant to 15
U.S.C. § 1692k(a). Thus, Plaintiff’s action is moot and must be dismissed for lack of
subject matter jurisdiction. See Citizens for the Responsible Government State PAC v.
Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000) (holding that “[a] case is moot when the
issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in
the outcome” and “[t]he parties must continue to have a personal stake in the outcome
throughout the case”).
III.

CONCLUSION
Based on the foregoing, it is
ORDERED that Defendant Credit Control Services, Inc.’s Motion to Dismiss

Pursuant to Fed. R. Civ. P. 12(b)(1) (ECF No. 15) is GRANTED. Plaintiff’s Complaint is
DISMISSED WITHOUT PREJUDICE.
Dated: September 17, 2014
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE

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