Radcliffe v. Russell G. Winick & Associates, P.C.

Filing 24

Memorandum Opinion and order signed by the Honorable Robert W. Gettleman on 6/9/23015. Motion 17 to Dismiss is granted. Status hearing date of 7/9/2015 is stricken. Civil case terminated. Mailed notice (gds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THURLOW RADCLIFFE,
Plaintiff,
v.
RUSSEL G. WINICK & ASSOCIATES, P.C.,
Defendant.

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No. 14 C 8633
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
Plaintiff Thurlow Radcliffe has sued defendant Russel G. Winick & Associates, P.C.
alleging a violation of the venue provision of the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. §1692 (1977), based on defendant having brought suit against plaintiff in the wrong
municipal district in the Circuit Court of Cook County, Illinois (the “Circuit Court”). Defendant
filed an amended answer, which included the FDCPA statute of limitations as an affirmative
defense. Plaintiff then filed an amended complaint alleging that the FDCPA violation occurred
when defendant filed an application for wage garnishment against plaintiff’s employer.
Defendant has now moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a
claim upon which relief can be granted. For the reasons discussed below, the court grants the
motion to dismiss.
BACKGROUND
Defendant filed a collection action against plaintiff on June 20, 2013, in the Circuit Court
seeking to recover $9,735.14 on behalf of its client (the “collection action”). Final judgment
against plaintiff in the collection action was entered on October 29, 2013. On January 2, 2014,
defendant filed an application for wage garnishment against plaintiff’s employer.

Plaintiff initiated the instant action on October 31, 2014, originally alleging that
defendant violated the venue provision of the FDCPA, 15 U.S.C. §1692i(a)(2), when it filed the
collection action in a court other than the court in the judicial district in which the plaintiff
resides. Cook County is divided into six municipal districts. The Daley Center Courthouse,
where the collection action was filed, is located in the first municipal district and is 31 miles
from the plaintiff’s home. The Markham Courthouse, located in the sixth municipal district
where plaintiff resides, is 13 miles from plaintiff’s home. Plaintiff alleges that defendant
violated the FDCPA when it engaged in forum-shopping by filing the action in a remote
courthouse, thus discouraging plaintiff from defending the action, and again by filing the
application for wage garnishment.
DISCUSSION
Defendant has moved to dismiss for failure to state a claim under Fed. R. Civ. P.
12(b)(6). When ruling on a motion to dismiss for failure to state a claim, the court accepts the
complaint’s well-pleaded factual allegations as true and draws all reasonable inferences in the
plaintiff’s favor. Sprint Spectrum L.P. v. City of Carmel, Indiana, 361 F.3d 998, 1001 (7th Cir.
2004). The pleading must describe the claim in sufficient detail to give the defendant fair notice
of what the claim is and the grounds on which the claim rests. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). The allegations must plausibly suggest that the plaintiff has a right to
relief, raising the possibility above the “speculative level.” Id.
This standard demands that a complaint allege more than legal conclusions or
“[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when

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the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
The complaint alleges that defendant violated the venue provision of the FDCPA when it
filed the collection action in the first municipal district instead of the sixth municipal district.
The venue provision of the FDCPA provides that, “Any debt collector who brings any legal
action on a debt against any consumer shall...bring such action only in the judicial district or
similar legal entity…in which such consumer resides at the commencement of the action.” 15
U.S.C. § 1692i(a)(2). 1
Defendant argues that to the extent that plaintiff’s claim is based on the initial filing of
the collection action, the complaint is time barred. The FDCPA has a one-year statute of
limitations. 15 U.S.C. §1692k(d). The collection action was filed on June 20, 2013. The instant
action was filed on October 31, 2014, beyond the limitations period. Plaintiff does not dispute
this. Instead, plaintiff argues that the application for wage garnishment filed by defendant in the
collection action on January 2, 2014, constitutes a “separate legal action on a debt,” thus
initiating a new statute of limitations. In response, defendant argues that a wage garnishment is
simply a post-judgment enforcement proceeding against an employer, not a consumer, and does
not start a new limitations period.
The court agrees with defendant. A similar issue was addressed in Hill v. Freedman
Anselmo Lindberg, LLC, 2015 WL 2000828 (N.D. Ill 2015), in which the plaintiff argued that
the filing of a citation to discover assets was a new “separate legal action on a debt” triggering a

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See Suesz v. Med-1 Solutions, LLC, 757 F.3d 636, 638 (7th Cir. 2014) (“[T]he correct
interpretation of ‘judicial district or similar legal entity’ in §1962i is the smallest geographic area
that is relevant for determining venue in the court system in which the case is filed.”)
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new limitations period. The court disagreed, concluding that the citation was a “supplemental
proceeding” in the collection action and that only the filing of the case itself is the violation that
initiates the running of the statute. Id. at * 3. In reaching its decision, the Hill court distinguished
Blakemore v. Pekay, 895 F.Supp. 972 (N.D.Ill 1995), stating that, “Blakemore is a single outlier
in a wave of district court opinions that hold only the filing of a collection case initiates the
running of the statute of limitations,” and that “subsequent filings within the collection case do
not constitute a continuing violation of the FDCPA so as to reset the statute of limitations.” Id.
The Hill court held post-judgment enforcement proceedings do not initiate the FDCPA statute of
limitations. Id.2
This court agrees with Hill that supplemental proceedings in the same collection case do
not initiate a new statute of limitations period. To conclude otherwise would render the statute
of limitations meaningless. “The course of litigation is not, in itself, a ‘continuing violation’ of
the FCDPA.” Parker v. Pressler & Pressler, LLP, 650 F.Supp.2d 326, 338 (D.N.J. 2009). Thus,
this court concludes that the filing of a wage garnishment application is within the course of the
collection litigation and does not constitute a new legal action.
Plaintiff argues that Hill’s holding should be limited to citations to discover assets, and
that an application for a wage garnishment, unlike a citation to discover assets, does constitute a
“separate legal action on a debt.” See Blakemore, 895 F.Supp. at 982-83. But even if plaintiff is
correct (and he is not), as Judge Blakey recently noted in Etro v. Blitt and Gaines, P.C., 2015
WL 1281521 (N.D. Ill March 18, 2015), courts in this district have held that applications for

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See also, Smith v. Solomon & Solomon, P.C., 714 F.3d 73 (1st Cir. 2013)(venue
provision in the FDCPA does not control post judgment proceedings).
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wage deductions are actions against the employer, not the debtor. “Because the summons is
issued against an employer, courts in this circuit – including two courts from this district – have
found that the Illinois wage deduction and garnishment schemes are not “legal action[s] against
any consumer under the Fair Debt Collections Practices Act.” Id. at * 2 (and cases cited therein).
Plaintiff argues that under §5/12-805 of the Illinois Code of Civil Procedure, wage
garnishment proceedings are brought against both the employer and the judgment debtor. 735
ILCS 5/12-805. Etro rejected this same argument, and this court does as well. Section 5/12-805
does not expressly state that wage garnishment proceedings are brought jointly against the
employer and debtor, and what it does state refutes that notion. 735 ILCS 5/12-805. Section
5/12-805(a) requires written interrogatories to be answered by the employer, and requires the
clerk to issue service against the employer in an effort to command “the employer to appear in
court.” Id. Also, the “Wage Deduction Notice” provided in §5/12-805 reads, “The court shall be
asked to issue a wage deduction summons against the employer….” Id. (emphasis added).
Plaintiff cites Adkins v. Weltman, Weinberg & Reis Co, 2012 WL 604249 (S.D. Ohio
Feb. 24, 2012), in an attempt to establish that garnishment actions are against both the consumer
and the employer, arguing that the Ohio statute governing wage garnishment proceedings
interpreted in Adkins is substantially similar to the Illinois statute, and thus the Illinois statute
should also be interpreted as against both the consumer and the employer. As Etro noted,
however, “[u]nlike Illinois law, Ohio law defines garnishment proceedings as being ‘against the
judgment debtor’ and not the garnishee.” Etro, 2015 WL 1281521, at * 3 (N.D. Ill.). Thus, this
court concludes, as did Etro, that Illinois wage garnishment actions are against the employer, and
not the judgment debtor. Id. at * 2.

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CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss for failure to state a claim is
granted.

ENTER:

June 9, 2015

__________________________________________
Robert W. Gettleman
United States District Judge

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