Freeland v. Unterberg and Associates PC et al

Filing 34

OPINION AND ORDER granting 29 Motion for More Definite Statement and granting 32 Rule 12(f) Motion to Strike 31 Statement. The court STRIKES Freelands document entitled More Definite Statement. The third and final amended complaint shall be filed within 21 days of this Order. Signed by Magistrate Judge Andrew P Rodovich. cc:pltf (kjp)

PATRICIA FREELAND,
Plaintiff,
v.
MICHAEL J. KULAK,
Defendant.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
)
)
)
)2:13-cv-90
)
)
)
OPINION AND ORDER

This matter is before the court on the Motion for a More Definite Statement [DE 29] filed
on January 13, 2014, and the Motion to Strike Plaintiff’s Motion for a More Definite Statement
[DE 32] filed on March 10, 2014. For the following reasons, the motions are GRANTED.
Background
The pro se plaintiff, Patricia Freeland, filed her original complaint on March 8, 2013,
and amended it on March 29, 2013. She identified three causes of action. First, she stated that
the defendant, Michael Kulak, violated the FDCPA, 15 U.S.C. §§ 1692e and 1692f by providing
false and misleading information by mailing a letter on December 14, 2011. Freeland alleged
that Kulak failed to prove the existence of the debt or that he was the bona fide holder of the debt
instrument. She further complained that Kulak used false, deceptive, and misleading
representations in connection with the collection of the debt. Freeland stated that her second
cause of action was under the FDCPA, explaining that the balance due and account paid in full
overshadowed the consumer warning on the document. Finally, Freeland alleged negligence,
stating that Kulak misled her to believe that she was under an obligation to forfeit her personal
property and that Kulak made the demands without authority.
On June 18, 2013, Kulak moved for a more definite statement. The court granted the

1

Kulak’s motion in part and denied it in part. The court explained that Freeland sufficiently set
forth a violation of 15 U.S.C. § 1692g because she alleged facts to show that Kulak was a debt
collector who violated several provisions of the FDCPA by making a demand for a debt, failing
to respond to her debt validation letter, and failing to provide verification of the debt or the name
and address of the original creditor as required by the FDCPA.
Freeland also alleged that Kulak violated the FDCPA by mailing a letter dated December
14, 2011, that contained false and misleading information and asked for a lump sum of money
and that Kulak used false, deceptive, and misleading representations in connection with the
collection of debt. The court noted that allegations of fraud must be stated with particularity and
because Freeland did not identify the threats Kulak made or when the threats were made, she
failed to satisfy the pleading requirements.
The court also found that Freeland’s negligence claim was not sufficiently pled because it
could not discern the factual basis of Freeland’s claim. In her complaint, Freeland alleged a
series of deliberate events. The court directed Freeland to clarify the factual basis of her
negligence claim if she wished to advance this claim.
The court further advised Freeland that Federal Rule of Civil Procedure 10(b) required
that the plaintiff organize her complaint “in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.” The court directed Freeland to comply with this rule
in her amended complaint.
On December 26, 2013, Freeland filed her amended complaint. Kulak again moves for a
more definite statement. Following Kulak’s motion, Freeland filed a document entitled More
Definite Statement. Kulak moves to strike this document.

2

Discussion
Freeland’s Second Amended Complaint is the mirror image of her Amended Complaint,
except for the certificate of service, signature, and verification pages. Freeland also changed one
heading from “Statement of Claim” to “Factual Accusation”, but she followed it with the same
excerpts from the UCC and did not change the content to include factual allegations. The
change in heading alone does not convert Freeland’s recitations of the law to factual pleadings.
Rather, Freeland’s second amended complaint has the same shortcomings as the previous one.
As the court explained in its November 13, 2013 Opinion and Order, Freeland has not identified
the threats Kulak made or when the threats occurred to support her claim of fraud. Similarly,
Freeland alleged only deliberate acts and did not set forth any facts that could form the basis of
her negligence claim. Because Freeland did not provide a further factual basis for her claims,
she again has failed to sufficiently plead her claims of negligence and fraud under the FDCPA.
For these reasons, Kulak’s motion is GRANTED.
After Kulak filed his second motion for a more definite statement, and after the deadline
set by the court for Freeland to file her amended complaint, Freeland filed a document entitled
“More Definite Statement.” The document appears to be Freeland’s third amended complaint
rather than a response to Kulak’s motion.
Federal Rule of Civil Procedure 15(a) states that a party may amend its pleading once as
a matter of course within 21 days of serving it or 21days after service of a responsive pleading,
whichever is earlier. Otherwise, pleadings only may be amended “with the opposing party’s
written consent or the court’s leave.” Kulak did not consent to the amended pleading and
Freeland did not seek leave of court. Although the court recognizes that pro se litigants face

3

special challenges that litigants represented by counsel do not, pro se litigants are not excused
from following procedural rules simply because the “rules of procedure are based on the
assumption that litigation is normally conducted by lawyers.” Lee v. Wal-Mart Stores, 1994
WL 899240, * 1 (N.D. Ind. Apr. 12, 1994). The Lee court explains,
[the court] ha[s] never suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who proceed without counsel.
As we have noted before, “in the long run, experience teaches that strict adherence to
the procedural requirements specified by the legislature is the best guarantee of
evenhanded administration of the law.”

Lee, 1994 WL 899240 at *1 (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.
Ct. 2486, 2497, 65 L.Ed.2d 532 (1980)).
Freeland did not comply with Rule 15(a) because she failed either to obtain
Kulak’s consent or to seek leave of court to file her third amended complaint. If her
document entitled “More Definite Statement” corrected her previous shortcomings, the
court might let it stand, but it does not. For this reason, the court STRIKES Freeland’s
document entitled More Definite Statement [DE 31]. Freeland must file an amended
complaint that corrects her shortcomings as the court explained thoroughly in its preceding
Opinion and Order, or she will risk not being able to proceed on these claims. Freeland is
further DIRECTED to comply with Rule 10(b) and to organize her complaint into
numbered paragraphs, each containing a single idea. The third and final amended
complaint shall be filed within 21 days of this Order.
ENTERED this 16th day of April, 2014
/s/ Andrew P. Rodovich
United States Magistrate Judge

4