Zuniga et al v. Pierce and Associates, P.C. et al

Filing 41

MEMORANDUM Opinion and Order. Signed by the Honorable Milton I. Shadur on 5/5/2016:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LAURA ZUNIGA, et al.,
Plaintiffs,
v.
PIERCE AND ASSOCIATES, P.C., et al.,
Defendants.

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Case No. 16 C 1897

MEMORANDUM OPINION AND ORDER
Pierce and Associates, P.C. ("Pierce") is the one remaining defendant in what had
initially been a two-defendant action brought by Laura Zuniga and Juana Apzaith-Sanchez, on
behalf of plaintiffs and a class, that had sought to target defendants with multiple violations of
the Fair Debt Collection Practices Act (the "Act," 15 U.S.C. §§ 1692 et seq.). With Pierce's
Fed. R. Civ. P. ("Rule") 12(b)(6) motion to dismiss the Complaint having reached the
fully-briefed stage and therefore ripe for disposition, 1 on Monday of this week (May 2) Pierce's
counsel noticed up for presentment today (May 5) a motion for leave to add as supplemental
authority the opinion just issued by this Court's good friend and colleague Honorable Robert
Gettleman in Gierke v. Codilis and Assocs., P.C., Case No. 15 C 11618 in this District Court -an opinion issued on the selfsame May 2 date as the filing of Pierce's new motion. This Court
grants that motion (Dkt. No. 38) and, having done so, will use Judge Gettleman's opinion as the
springboard for determination of Pierce's Rule 12(b)(6) motion (Dkt. No. 21).
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1
In fact, this Court's able law clerk had essentially completed the preparation of a draft
opinion for this Court's review and editing -- a draft that would have arrived at the same
destination reached in this opinion.

As any lawyer who has had the occasion to be the winner or loser of a motion in one or
more cases on this Court's calendar over the years (or may perhaps have had occasion to
encounter any of this Court's written opinions in addressing a motion on the calendar of any of
its colleagues) may have noted, this Court's opinions are marked by a paucity (or far more
frequently a total dearth) of citations to other District Judges' opinions. That of course reflects
no lack of respect for such opinions or for the judges who have produced them -- instead it is
based on the firmly-established principle, regularly (and properly) taught by our Court of
Appeals, that District Court opinions are not precedential and have weight only to the extent that
a later court may find them persuasive.
Indeed, that same sense of the nonprecedential nature of District Judges' opinions
normally leads this Court to eschew citations even to its own earlier opinions unless they bear the
same relationship to a current problem that Judge Gettleman's opinion does in this case. In this
instance Judge Gettleman's thoroughly researched and impeccably analyzed Gierke opinion is, in
the words of the often misused aphorism, "the exception that proves the rule." 2 It is so much on
all fours with the present case that it might well have been written with this case in mind. To
repeat or retrace Judge Gettleman's analytical steps would be an act of supererogation -- a
needless trip.
Accordingly Pierce's Rule 12(b)(6) motion (Dkt. No. 21) is granted, and the Complaint is
dismissed. Because there is no way in which plaintiffs' meritless contentions can be refashioned
to state a viable claim for relief, this action is also dismissed -- and with prejudice.
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2
H.W. Fowler's Modern English Usage, which reached its fourth edition last year, but
whose second edition has been a valued reference source in this Court's library for fully a half
century, has decried the too-often-encountered oxymoronic misuse of that phrase. What is said
in the text is intended to employ the proper meaning of the phrase.
-2-

This Court had considered the possibility of taking some further action to discourage the
tendency of lawyers such as plaintiffs' counsel here to distort the commendable social goals
sought to be served by Congress' passage of the Act by instead invoking its provisions to
advance what appear to be legally near-frivolous claims. 3 But enough time and effort have
frankly been wasted on this case already, and it is time to go on to other matters that better justify
the expenditure of judicial (and litigators') time.

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Milton I. Shadur
Senior United States District Judge
Date: May 5, 2016

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3
In fairness this Court should make it clear that the law firm that represents plaintiffs
here have, in numerous other cases assigned to this Court's calendar over the years, served those
social goals and the goals of other consumer-oriented litigation well by presenting successful
meritorious claims and other claims that, even though ultimately unsuccessful, have readily
passed muster under the standards prescribed by Rule 11(b).
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