Siewiorik v. Butler & Hosch, P.A. et al

Filing 42

ORDER denying 30 --motion for sanctions; denying 34 --motion to dismiss; construing 35 as a motion for a more definite statement; granting 35 --motion for more definite statement; amended complaint due 5/5/2015; denying 36 --motion for joinder. Signed by Judge Steven D. Merryday on 4/17/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SHIRLEY SIEWIORIK,
Plaintiff,
v.

CASE NO. 8:14-cv-1949-T-23TGW

BUTLER & HOSCH, P.A., et al.,
Defendants.
____________________________________/

ORDER
Shirley Siewiorik sues (Doc. 1) SHD Legal Group, Ruwan P. Sugathapala,
Amber Johnson, and Wendy S. Griffith1 under the Fair Debt Collection Practices
Act (FDCPA). Griffith answered (Doc. 28) the complaint and moves (Doc. 35) for
judgment on the pleadings.2

1

The complaint names two other defendants, but another order dismisses the two
defendants because Siewiorik timely served neither.
2

Leading authorities recommend that, rather than move for judgment on the pleadings, a
litigant move either to dismiss for failure to state a claim or for summary judgment. E.g., Wright &
Miller, Federal Practice and Procedure, Vol. 5C, § 1369 (3d ed. 2014) (“In light of the battery of pretrial
motions available under the federal rules and the conversion provision in Rule 12(c) itself, there
probably is little need for retaining the judgment on the pleadings as a separate procedure for testing
the sufficiency of the pleadings. Its essential function, that of permitting the summary disposition of
cases that do not involve any substantive dispute that justifies a full trial, can be handled more
effectively under the summary judgment procedure or, on occasion, the Rule 12(b)(6) motion. . . . At
this point in time the Rule 12(c) motion is little more than a relic of the common law and code eras.
Its preservation in the original federal rules undoubtedly was due to the undeveloped character of the
summary judgment procedure and the uncertain scope of the Rule 12(b)(6) motion.”).

“Judgment on the pleadings is appropriate where there are no material facts in
dispute and the moving party is entitled to judgment as a matter of law.” Perez v.
Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014). Thus, “[i]n determining
whether a party is entitled to judgment on the pleadings,” a district court must
“accept as true all material facts alleged in the non-moving party’s pleading” and
must “view those facts in the light most favorable to the non-moving party.” Perez,
774 F.3d at 1335. The few pertinent allegations in Siewiorik’s (error infested)
complaint follow.3
“[T]hrough” Griffith, a law firm served Siewiorik “with a Complaint to
Foreclosure Mortgage, on behalf of” a mortgage lender. (Doc. 1 ¶ 10) “At sometime
after” the service, SHD Legal, Sugathapala, and Johnson “made and appearance and
been the counsel of record for the underlying plaintiff.” (Doc. 1 ¶ 11) Siewiorik
argues that “[t]he underlying cause of action wrongfully claims that Ms. Ms.
Siewiorik is the owner of the real property sought to be foreclosed upon.” (Doc. 1
¶ 12) Siewiorik sues under the FDCPA because, “[a]lthough the defendants have
been advised by Ms. Ms. Siewiorik and her counsel of the error in their pleading, the
underlying foreclosing plaintiff continues to prosecute and seek foreclosure against
Ms. Siewiorik and, in addition, has failed to correct the erroneous pleading even
though they have been made aware of the pleading error.” (Doc. 1 ¶ 14)
3

The six-page complaint contains a second claim, a claim for “defamation/liable,” but an
earlier order dismissed the only defendant named in that claim.

-2-

Although Siewiorik (poorly) identifies the defendants’ allegedly actionable
conduct, Siewiorik fails to identify a section of the FDCPA that the defendants
violated. The complaint identifies Section 1692 as the basis of the claim (Doc. 1 ¶ 1),
but Section 1692 (entitled “Congressional findings and declaration of purpose”)
creates no claim. The complaint also identifies Section 1992k(d). However, no
Section 1992k exists. Review of the FDCPA reveals that, rather than Section
1992k(d), Siewiorik intends to cite Section 1692k(d). Nonetheless, like Section 1692,
Section 1692k(d) creates no cause of action.4
Most likely, by suing under Section 1692, Siewiorik intends to sue broadly
under any section of the FDCPA, which spans from Section 1692 through
Section 1692p. But Section 1692 is distinct from, not inclusive of, Sections 1692a
through 1692p.
Griffith’s motion (Doc. 35), which struggles to identify the sections of the
FDCPA under which Siewiorik sues, is construed as a motion for a more definite
statement and is GRANTED. No later than MAY 5, 2015, Siewiorik must amend
the complaint to identify each section of the FDCPA that the defendants allegedly
violated. Further, although both Griffith and the remaining defendants demonstrate

4

Entitled “Jurisdiction,” Section 1692k(d) states, “An action to enforce any liability created
by this subchapter may be brought in any appropriate United States district court without regard to
the amount in controversy, or in any other court of competent jurisdiction, within one year from the
date on which the violation occurs.”

-3-

that Siewiorik’s attorney acted in error, the motions (Docs. 34, 36) for involuntary
dismissal are DENIED. Similarly, the motion (Doc. 30) for sanctions is DENIED.
ORDERED in Tampa, Florida, on April 17, 2015.

-4-