BOGATSCHOW v. CF MEDICAL LLC et al
ORDER DENYING 35 Motion to Dismiss for Lack of Subject Matter Jurisdiction. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 8/1/2022. (kat)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CF MEDICAL LLC, et al.,
CIVIL ACTION NO. 5:20-CV-59 (MTT)
Defendants CF Medical, LLC and The Law Offices of Mitchell D. Bluhm &
Associates, LLC have moved to dismiss Plaintiff Roman Bogatschow’s complaint for
lack of subject matter jurisdiction. Doc. 35. Specifically, the defendants contend that
Bogatschow, who has alleged a claim pursuant to the Fair Debt Collection Practices Act
(“FDCPA”), lacks Article III standing. For the reasons discussed below, that motion
(Doc. 35) is DENIED.
I. BACKGROUND 1
Bogatschow underwent a medical procedure on January 4, 2016. Docs. 20-2 ¶¶
2-3; 28-1 ¶¶ 2-3. Three years later, Bogatschow received a letter from Defendant
Mitchell D. Bluhm & Associates alleging Bogatschow owed $2,016.00 to CF Medical,
LLC. Docs. 20-2 ¶¶ 15-16; 28-1 ¶¶ 15-16. On February 17, 2020, Bogatschow sued
the defendants for violating the FDCPA, alleging that he did not owe the debt and that
For a more detailed discussion of the facts, see the Court’s order denying the defendants’ motion for
summary judgment. Doc. 29 at 1-4.
the defendants were therefore not authorized to attempt collecting money from him.
Doc. 1 ¶¶ 37, 47-48. That is a significant point. For now, the record suggests that the
defendants are or were forcing Bogatschow to pay money he did not owe. The
collection effort at issue was a letter sent to Bogatschow from one of the defendants on
February 20, 2019, which listed the name of the original creditor, account number,
amount owed, contact information for the defendants, and stated in part “[t]he
outstanding balance is the obligation of the responsible party for the account(s). This
communication is from a debt collector. This is an attempt to collect a debt and any
information obtained will be used for that purpose.” Doc. 1-1 at 1.
The defendants moved for summary judgment on April 7, 2021, and that
motion was denied on November 18, 2021. Docs. 18; 29. The defendants did not then
challenge Bogatschow’s standing. Nor did the defendants establish that Bogatschow in
fact owed the debt; rather, they argued that Bogatschow’s insurance company did not
pay the alleged debt and that the February 20 letter could not have violated the FDCPA
because it was not a communication in connection with collecting a debt.
Relevant to standing, Bogatschow alleged in his complaint that he experienced
frustration and lost valuable time because of the defendants’ collection efforts. Doc. 1 ¶
42. Bogatschow also submitted an affidavit at the summary judgment stage in which he
stated that the collection efforts confused him and that he “was very worried and very
stressed about this collection effort.” Doc. 20-3 ¶¶ 18-19. Finally, in response to the
defendants’ motion to dismiss for lack of standing, Bogatschow submitted another
affidavit stating that because of the defendants’ actions he was “stressed, anxious, and
worried[.]” Doc. 39-1 ¶ 17. Bogatschow explained that he was especially stressed
because of a prior experience he had with medical bills when he did not have insurance.
Id. ¶¶ 9, 23. Bogatshchow added that he is prepared to testify about the emotional
distress the defendants’ actions caused him. Id. ¶ 28.
The Court must resolve Article III standing before it decides a case on the merits.
AT&T Mobility, LLC v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1359
(11th Cir. 2007) (citations omitted). To establish standing, “a plaintiff must demonstrate
“(1) an injury-in-fact; (2) a causal connection between the asserted injury-in-fact and the
defendant’s actions; and (3) that ‘the injury will be redressed by a favorable decision.’”
Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1229 (11th Cir. 2021) (quoting Shotz v.
Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)). Injury involves harms that are “concrete
and particularized.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)). “A ‘particularized’ injury ‘must affect the plaintiff in a personal and individual
way.’” Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020)
(quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016)). “A ‘concrete’ injury must be
‘real, and not abstract,’ but can be either ‘tangible or intangible.’” Laufer v. Arpan LLC,
29 F. 4th 1268, 1272 (11th Cir. 2022) (quoting Spokeo, 578 U.S. at 340).
Some harms easily qualify as tangible, concrete injuries. “The most obvious are
traditional tangible harms, such as physical harms and monetary harms.” TransUnion
LLC v. Ramirez, 141 S.Ct. 2190, 2204 (2021). Wasted time and frustration can also
qualify as tangible concrete injuries. Kottler v. Gulf Coast Collection Bureau, Inc., 847
F. App’x 542, 543 (11th Cir. 2021) (citing Trichell, 964 F.3d at 997).
An intangible injury can be concrete. But even when Congress has created a
private right to action, courts still must “‘independently decide whether a plaintiff has
suffered a concrete harm under Article III’ because Congress cannot ‘us[e] its
lawmaking power to transform something that is not remotely harmful into something
that is.’” Laufer, 29 F. 4th at 1272 (quoting TransUnion, 141 S.Ct. at 2205). “To
determine whether an alleged intangible injury is sufficiently concrete, [a court] look[s] to
both history and the judgment of Congress.” Trichell, 964 F.3d at 997 (citing Spokeo,
136 S.Ct. at 1549). However, “a plaintiff does not ‘automatically satisf[y] the injury-infact requirement whenever a statute grants a person a statutory right and purports to
authorize that person to sue to vindicate that right.’” Id. (quoting Spokeo, 136 S. Ct. at
1549). “Rather, ‘Article III standing requires a concrete injury even in the context of a
statutory violation.’” Id. This requires a court to consider “whether the alleged
intangible injury bears a ‘close relationship to a harm that has traditionally been
regarded as providing a basis for a lawsuit in English or American courts.’” Id. (quoting
Spokeo, 136 S.Ct. at 1549).
Attacks on standing, like other jurisdictional attacks, come in two forms. “‘Facial
attacks’ on the complaint require the court merely to look and see if the plaintiff has
sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the motion.” Lawrence v. Dunbar, 919
F.2d 1525, 1529 (11th Cir. 1990) (brackets and citations omitted). Factual attacks,
however, “challenge the existence of subject matter jurisdiction in fact, irrespective of
the pleadings, and matters outside the pleadings, such as testimony and affidavits, are
considered.” 2 Id. (brackets and citations omitted).
The defendants argue that Bogatschow has not suffered a tangible injury and he
cannot establish any intangible harm that is closely related to a harm traditionally
recognized in American courts. Doc. 35-1 at 2. Bogatschow does not argue that his
intangible harm is closely related to traditionally recognized causes of actions. Rather,
he argues that he experienced stress, worry, and anxiety and thus has established that
he suffered a tangible, concrete harm. Doc. 39 at 12-14.
Bogatschow alleged in his complaint that because of the defendants’ collection
efforts, he experienced frustration, lost valuable time, and was forced to retain counsel
to seek clarification. Doc. 1 ¶ 42. In response to the defendants’ motion for summary
judgment, Bogatschow filed an affidavit stating that the defendants’ collection efforts
caused him worry and stress and that he was concerned about a potential lawsuit. Doc.
20-3 ¶¶ 19, 22. Now, in response to the defendants’ motion to dismiss for lack of
standing, Bogatschow has again submitted an affidavit stating that the defendants’
collection efforts frustrated him and that the frustration “left [him] stressed, anxious, and
worried that Defendants would not stop trying to collect the alleged medical debt[.] Doc.
39-1 ¶¶ 9, 14, 16-17.
The defendants state that Bogatschow’s anxiety and worry began when he
received a collection letter on January 4, 2019. According to the defendants, because
A court may need to conduct an evidentiary hearing when it is required to make credibility
determinations or is faced with disputed facts on the standing issue. Bischoff v. Osceola Cnty., Fla., 222
F.3d 874, 885 (11th Cir. 2000).
that communication is outside of the statute of limitations and thus not at issue in this
case, Bogatschow’s alleged reaction from that communication is irrelevant. Doc. 44 at
7. But while Bogatschow does state the January 4 letter caused him stress, anxiety,
and worry, he also avers that the February 20 letter—the communication at issue in this
case—did as well. Doc. 39-1 ¶¶ 12-17.
The defendants also argue that worry, stress, and anxiety, without more, are
insufficient to confer standing. Doc. 44 at 5. The defendants rely on Crowder v.
Andreu, Palma, Lavin & Solic, PLLC, a district court case from the Middle District of
Florida. 2021 WL 1338767 (M.D. Fla. April 9, 2021). In Crowder, the plaintiff brought a
FDCPA claim and alleged that she suffered emotional distress from the defendant’s
collection efforts. Id. at *2. The court there stated that although emotional distress from
a FDCPA violation can amount to a concrete injury, not every plaintiff who alleges
emotional distress has standing. Id. The court concluded that the plaintiff’s evidence
was inadequate because she “provided nothing except the general statement that she
was worried about a lawsuit.” Id. at *3. The court then explained that the bare
statement that the plaintiff was worried about a future lawsuit was materially different
than another FDCPA case where the plaintiff had “provided ‘specific, sworn facts
supporting the allegations of emotional distress.’” Id. (citing Mraz v. I.C. Systems, Inc.,
2020 WL 7125629, at *2 (M.D. Fla. Dec. 4, 2020)).
Here, Bogatschow has alleged that he was worried about a potential lawsuit, but
he has also provided sworn statements that the alleged FDCPA violations caused him
emotional distress. Doc. 39-1 ¶¶ 13-17. And while the defendants argue that these
statements are conclusory, Bogatschow has provided more than bare statements.
Bogatschow stated that he felt stressed and worried because the defendants
continuously tried to collect a debt that he believed he did not owe and that he felt they
would not stop “no matter what information [he] provided them.” Id. ¶ 17. Bogatschow
also stated that a prior bad experience with medical debt exacerbated his stress and
anxiety regarding the debt the defendants were attempting to collect. Id. ¶ 22-23.
Thus, Bogatschow is not claiming emotional distress because of a trifling technicality.
He claims he is distressed because the defendants are attempting to force him to pay a
substantial debt he does not owe and that the distress caused by the defendants’
conduct has been aggravated by his previous ill treatment at the hands of debt
collectors. These allegations are unrefuted—other than questioning the sufficiency of
the allegations, the defendants offer nothing disputing Bogatschow’s sworn testimony. 3
The Eleventh Circuit, albeit in unpublished opinions, has also held that mental
distress can provide a basis for Article III standing. In Rivas v. Midland Funding, LLC,
the Eleventh Circuit addressed whether a plaintiff had standing to bring his FDCPA
claim. 842 F. App’x 483, 486 (11th Cir. 2021). There, the plaintiff based his FDCPA
claim on erroneous debt statements on the defendant’s website, and the plaintiff
claimed to have experienced extreme stress from the inaccurate statements. Id. at 486.
Specifically, the plaintiff testified that it was “hard to sleep, it [was] hard to concentrate,
and it [was] just very stressful.” Id. The Eleventh Circuit concluded that the plaintiff’s
“injuries [were] sufficiently tangible—and therefore concrete—to confer Article III
The defendants took Bogatschow’s deposition, but they did not elicit testimony regarding his alleged
injuries. Doc. 18-3.
Similarly, in Kottler v. Gulf Coast Collection Bureau, Inc., the Eleventh Circuit
analyzed whether a plaintiff had standing to sue for FDCPA violations. 847 F. App’x
542 (11th Cir. 2021). In Kottler, the plaintiff testified that she “was ‘clustered and
jumbled’ why she was receiving collection calls, the messages ‘scared’ her into calling
back, and she feared that the company would ‘ruin her credit.’” Id. at 543. The
Eleventh Circuit held that these injuries “satisfied each element for an injury in fact.” Id.
Like the plaintiffs in Rivas and Kottler, Bogatschow has alleged that he suffered
mental distress because of the defendants’ collection efforts. Accordingly, the Court
finds that Bogatschow, on this record, has provided evidence of a tangible, concrete
injury sufficient to establish Article III standing.
For the reasons stated above, the defendants’ motion to dismiss for lack of
jurisdiction (Doc. 35) is DENIED.
SO ORDERED, this 1st day of August, 2022.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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