Smolinski v. Weinerman & Associates, LLC et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 7/11/2012.Mailed notice(smm)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DONALD SMOLINSKI,
Plaintiff,
v.
MICHAEL OPPENHEIMER and
WEINERMAN & ASSOCIATES, LLC,
Defendants.
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Judge Joan B. Gottschall
Case No. 11 C 7005
MEMORANDUM OPINION & ORDER
On October 4, 2011, Plaintiff Donald Smolinski (“Smolinski”) filed this action
against Defendants Michael Oppenheimer and Weinerman & Associates, LLC
(collectively, “Defendants”), alleging violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692.
Defendants have moved to dismiss Smolinski’s
complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1), or, alternatively, for failure to state a claim pursuant to Rule 12(b)(6).
For the reasons stated below, the court denies Defendants’ motion.
I. BACKGROUND
This case arises from a debt collection telephone call that Smolinski allegedly
received from Defendants. (Pl.’s Compl. ¶¶ 11-16.) Smolinski alleges that in this call
Defendants threatened him with a lawsuit, criminal prosecution, jail time, and other
“severe penalties” for failing to pay the debt, and that these threats and
misrepresentations both damaged him and violated the FDCPA. (Id.) In the complaint,
he clearly requests both FDCPA statutory damages of $1,000 and unspecified actual
damages. (Id. at ¶ 30.) On December 22, 2011, Defendants made an offer of judgment to
Smolinski, pursuant to Rule 68, which amounted to $1,001 (the maximum FDCPA
statutory damages plus one dollar) and reasonable attorney’s fees as determined by this
court. (Defs.’ Mem. in Supp. of Mot. to Dismiss (“Defs.’ Mem.”), Ex. A, ECF No. 23.)
Smolinski rejected this offer through counsel. (Id. at 1-2.)
Defendants moved to dismiss Smolinski’s complaint on two alternative grounds:
that this court lacks subject-matter jurisdiction because Smolinski’s complaint was
mooted by his rejection of Defendants’ offer of judgment; or, if the court finds that the
offer of judgment did not moot the case because it did not cover actual damages, that
Smolinski’s complaint failed to state a claim for which relief could be granted because
the complaint did not plead those damages with specificity. Smolinski’s response to
Defendants’ motion included an affidavit that postdates and was not attached to the
complaint. (Pl.’s Resp. in Opp’n to Defs.’ Mot. to Dismiss, Ex. A (“Affidavit”), ECF No.
27.) The affidavit explains that the actual damages alleged in the complaint are damages
for emotional distress allegedly caused by Defendants’ phone call. (Id.)
II. LEGAL STANDARD
When deciding a motion to dismiss under Rule 12, the court must accept all facts
pleaded in the complaint as true, and must draw all reasonable inferences in the plaintiff’s
favor. INEOS Polymers, Inc. v. BASF Catalysts, 553 F.3d 491, 497 (7th Cir. 2009).
Pursuant to Rule 12(b)(1), the court must dismiss a complaint if it finds that it has no
subject-matter jurisdiction over the case. Where the plaintiff no longer has a personal
stake in the case, the court has no subject-matter jurisdiction, because the case is moot.
See Holstein v. City of Chi., 29 F.3d 1145, 1147 (7th Cir. 1994).
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The court must also dismiss a complaint, pursuant to Rule 12(b)(6), if it finds that
the complaint fails to state a claim for which relief can be granted. In general, “the
complaint need only contain a ‘short and plain statement of the claim showing that the
pleader is entitled to relief,’” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773,
776 (7th Cir. 2007) (quoting Rule 8(a)), and provide sufficient facts to put the defendant
on notice “of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957))
(internal quotation mark omitted) (ellipses in Twombly). To survive a motion to dismiss
under Rule 12(b)(6), the complaint need not present particularized facts, but “demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).1
III. ANALYSIS
Defendants first argue that Smolinski’s complaint must be dismissed for lack of
subject-matter jurisdiction, on the grounds that Smolinski’s rejection of their offer of
judgment mooted the case. In Holstein, the Seventh Circuit held that once a defendant
offers to satisfy a plaintiff’s entire demand for relief, there is no longer any controversy;
therefore, a plaintiff moots his own case if he rejects such an offer. See 29 F.3d at 1147
(citing Monsanto v. Rand Co., 926 F.2d 596, 598 (7th Cir. 1991)). Defendants claim that
their offer of $1,001 plus attorney’s fees would make Smolinski whole. But Smolinski’s
complaint alleges that he was damaged by Defendants’ conduct and requests actual
damages in an amount to be determined at trial. (Pl.’s Compl. ¶¶ 17, 30.) Defendants’
offer does not include or even purport to include such damages, which means that it does
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When explicating the pleading standard for a Rule 12(b)(6) motion, both Smolinski and
Defendants cite only cases that predate Twombly and Iqbal, and are therefore inapposite.
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not satisfy Smolinski’s entire demand for relief and therefore cannot moot Smolinski’s
claims. See Warren v. Sessoms & Rogers, P.A., 676 F.3d 365, 372-73 (4th Cir. 2012)
(holding an FDCPA defendant’s offer of $250 or an “amount to be determined by the
Court” did not moot the plaintiff’s claim because it might not cover the alleged actual
damages and was impermissibly conditional); Queen v. Nationwide Credit, Inc., 2010
WL 4006676, at *2-3 (N.D. Ill. 2010) (denying a Rule 12(b)(1) motion in an FDCPA
action because the defendant’s offer impermissibly limited the attorney’s fees that the
plaintiffs could collect); Sibersky v. Borah, Goldstein, Altschuler & Schwartz, P.C., 242
F. Supp. 2d. 273, 278-79 (S.D.N.Y. 2006) (holding a defendant’s offer did not moot an
FDCPA action because it did not cover the alleged actual damages); Ortega v. Collectors
Training Inst. of Ill., Inc., 2011 WL 241948, at *4 (S.D. Fla. 2011) (holding a defendant’s
$1,001 offer did not moot an FDCPA action because it did not cover the plaintiff’s
generally alleged actual damages).
Because Defendants’ offer of judgment did not
satisfy Smolinski’s entire demand for relief, the court finds that the claim is not moot,
and denies Defendants’ motion to dismiss for lack of subject-matter jurisdiction.
Defendants next contend that Smolinski’s complaint must be dismissed for failure
to state a claim, because it does not allege actual damages with sufficient specificity. As
a general rule, a court may not look outside the “four corners” of the complaint when
deciding a motion to dismiss. See Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th Cir.
1989) (“[C]onsideration of a motion to dismiss is limited to the pleadings.”). But in
Hrubec v. National Railroad Passenger Corp., 981 F.2d 962 (7th Cir. 1992), the Seventh
Circuit held that a district court may take notice of affidavits attached to a plaintiff’s
response to a motion to dismiss, as long as the contents merely expand on allegations in
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the complaint, rather than introducing new allegations or lines of argument. Hrubec, 981
F.2d at 963-64; accord Flying J., Inc. v. City of New Haven, 549 F.3d 538, 542 n.1 (7th
Cir. 2008) (“[A]dditional facts can be presented as long as they are consistent with the
complaint.”); Help at Home, Inc., v. Med. Capital, L.L.C., 260 F.3d 748, 752-53 (7th Cir.
2001) (A plaintiff may add facts “by affidavit or brief in order to defeat a motion to
dismiss if the facts are consistent with the allegations of the complaint.”). The affidavit
attached to Smolinski’s response is a paradigmatic example of such an expansion. It
merely fleshes out the allegation of actual damages in the complaint, giving Defendants a
more detailed picture of the nature and scope of those damages. It does not put forth new
arguments or facts inconsistent with the complaint. The court therefore may and does
take notice of the affidavit attached to Smolinski’s response in deciding this motion.
Smolinski’s complaint alleges sufficient facts to put Defendants on notice “of
what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555
(quoting Conley, 355 U.S. at 47). It alleges actions that, if proven, would constitute a
violation of the FDCPA, and alleges that Smolinski suffered actual damages as a result of
that alleged violation. As expanded by the affidavit, it puts Defendants on notice that
those actual damages consist of emotional distress, anxiety, confusion, frustration, and
anger. (Affidavit ¶¶ 2-4.) These allegations plausibly suggest that Smolinski has a right
to the relief requested; no more is necessary at the pleadings stage. See Concentra Health
Servs., Inc., 496 F.3d at 776 (citing Twombly, 500 U.S. at 569).
However, even if the court could not consider Smolinski’s affidavit, it would still
not be appropriate to dismiss his complaint merely because his damages were alleged
generally. The emotional distress damages pled in Smolinski’s complaint are general
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damages that fall under the same Rule 8 notice pleading standard as the rest of the
complaint; they need not be pled with specificity to make out a plausible case that he is
entitled to relief, which is all that Twombly requires. See 500 U.S. at 569. Emotional
distress is not merely a “plausible” result of receiving a phone call threatening criminal
prosecution and jail time, it is the desired result—debt collectors make such threats with
the intent of frightening or browbeating the debtor into making payment.
It is true that, without the affidavit, Smolinski’s claim of actual damages is largely
conclusory. But “conclusory statements are not barred entirely from federal pleadings.”
Tamayo v. Blagojevich, 526 F.3d 1074, 1084-85 (7th Cir. 2008) (citing Twombly, 550
U.S. at 575-76). When a conclusory statement gives “the defendant sufficient notice to
enable him to begin to investigate and prepare a defense,” to require more would put the
plaintiff to his proof before such evidentiary rigor is proper.2 See id. (“It is difficult to
see what more [the plaintiff] could have alleged, without pleading evidence, to support
her claim.”). Smolinski is not required to plead his actual damages with specificity, and
therefore, even without his affidavit, the court would still deny Defendants’ motion.
IV. CONCLUSION
Defendant’s motion to dismiss Smolinski’s complaint for lack of subject-matter
jurisdiction, or, alternatively, for failure to state a claim is denied.
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Defendants note that the Seventh Circuit maintains “a strict standard for a finding of emotional
damage because they are so easy to manufacture.” (Defs.’ Mem. at 5, citing Sarver v. Experian Info.
Solutions, 390 F.3d 969, 971 (7th Cir. 2004) (internal quotation marks omitted).) But a motion to dismiss
deals with allegations, not findings, and plausibility, not proof. See In re Consol. Indus., 360 F.3d 712, 717
(7th Cir. 2004) (“Of course, a judge reviewing a motion to dismiss under Rule 12(b)(6) cannot engage in
fact-finding.”). In support, Defendants cite only summary judgment and final default judgment opinions
which discuss “proof” of emotional damages, but this is not a summary judgment motion, and the plaintiff
is not put to his proof at the pleadings stage. See (Defs.’ Mem. at 5-6); Bennett v. Schmidt, 153 F.3d 516,
519 (7th Cir. 1998) (“Litigants are entitled to discovery before being put to their proof, and treating the
allegations of the complaint as a party’s proof . . . defeats the function of Rule 8.”).
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ENTER:
/s/
JOAN B. GOTTSCHALL
United States District Judge
DATED: July 11, 2012
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