Ross v. O'Hara
Filing
89
OPINION AND ORDER: The Plaintiff's Complaint is DISMISSED without prejudice for lack of subject matter jurisdiction. The Court also DENIES as moot the following motions: Plaintiff's Motion for Partial Summary Judgment 71 ; Defendant 39;s Motion for Summary Judgment 76 ; Defendant's Motion to Strike Affidavit of Chase Haller 77 ; Defendant's Motion to Strike Affidavit of John Brengle 78 ; and Plaintiff's Motion to Exclude Defendants Evidence and Strike Bona Fide Error Defense 83 . Signed by Judge Theresa L Springmann on 3/30/2022. (shk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ANGELA ELVITA ROSS,
Plaintiff,
v.
CAUSE NO.: 2:18-CV-118-TLS
JONATHAN R. O’HARA,
Defendant.
OPINION AND ORDER
This matter is before the Court on various motions: (1) Plaintiff’s Motion for Partial
Summary Judgment [ECF No. 71]; (2) Defendant’s Motion for Summary Judgment [ECF No.
76]; (3) Defendant’s Motion to Strike Affidavit of Chase Haller [ECF No. 77]; (4) Defendant’s
Motion to Strike Affidavit of John Brengle [ECF No. 78]; and (5) Plaintiff’s Motion to Exclude
Defendant’s Evidence and Strike Bona Fide Error Defense [ECF No. 83]. However, because the
Plaintiff has failed to establish standing, the Court dismisses this case and denies the remaining
motions as moot.
FACTUAL BACKGROUND
In 1998, Walmart obtained a default judgment against the Plaintiff in Gary City Court
related to an insufficient funds check the Plaintiff wrote in 1997. Def. Ex. B, ¶¶ 2–4, ECF No.
18-1; see Def. Ex. 1, ECF No. 76-1; Def. Ex. 4, ECF No. 76-4. Between 1998 and 2005, several
motions for proceedings supplemental were filed, but service on the Plaintiff was not obtained.
Def. Ex. B, ¶ 5. The Defendant eventually discovered that the Plaintiff lived in Jacksonville,
Florida, so he filed another proceedings supplemental motion in October 2005 to have the
Plaintiff appear for an examination as to assets. Id. at ¶ 6; see Def. Ex. 5, ECF No. 76-5. The
Plaintiff failed to appear, and, as a result, a contempt citation was issued for her to appear in
December 2005. Def. Ex. B, ¶ 7; see Def. Ex. 6, ECF No. 76-6. When she failed to appear again,
a bench warrant body attachment was issued for her arrest. Def. Ex. B, ¶ 8; see Def. Ex. 7, ECF
No. 76-7; Def. Ex. 8, ECF No. 76-8. Based on the Plaintiff’s search of public records, it appears
that no judgments were entered against her in Florida. Pl. Ex. D, ¶¶ 6–7, ECF No. 70-2.
More than a decade later, the Defendant determined through an internet skip tracing
program that the Plaintiff had moved to a different address in Jacksonville. Def. Ex. B, ¶¶ 11–12.
That program also indicated that Angela Ross had the same social security number as “Brianna
Ross Williams,” id. at ¶ 14; however, the Plaintiff explained that “Briana” is her daughter, not an
alias, Pl. Ex. E, ¶¶ 6–7, ECF No. 70-2. After the Defendant uncovered this information about the
Plaintiff’s move, he filed a new motion with the Gary City Court to reissue the warrant as he was
unsure whether the original warrant had expired. Def. Ex. B ¶ 15; see Def. Ex. 9, ECF No. 76-9;
Def. Ex. 10, ECF No. 76-10.
On March 23, 2017, the Defendant sent a letter to “Angela E. Ross Aka Briana Elise
Ross-Williams” and addressed it to the Plaintiff’s residence in Jacksonville. Compl. Ex. 1, ECF
No. 1-1; see Pl. Ex. E, ¶ 4. The subject of the letter is “Walmart Stores, Inc. # 1618 vs. Angela E.
Ross Aka Briana Elise Ross-Williams, 45HO3-9805-CP-1743,” and it provides:
Please find enclosed a copy of a motion and order I have filed with the Court. This
motion and order was issued because you failed to appear at a hearing on contempt
filed by the Court. This matter is now very serious and you could be arrested at any
time. You basically have 2 options right now. If you pay the amount due mentioned
above, I will file a motion to have the bench warrant-body attachment recalled and
that will be the end of the case. If you are unable to pay the full amount, then you
will need to talk to me about a plan of repayment. You will be required to put an
adequate amount down to have the bench warrant-body attachment recalled and
make payment arrangements on this rest owed. Please contact my office
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IMMEDIATELY when you receive this letter to discuss with us what you intend
to do. Make your payment payable to “Jonathan R. O’Hara, Trustee”.
Compl. Ex. 1. At the top of the letter, the total amount due was listed as $1,040.00. Id.
In an affidavit dated March 22, 2020,1 the Plaintiff describes how the letter harmed her.
See Pl. Ex. I, ECF No. 71-2. The Plaintiff states that she was confused after reading the letter and
was scared that she could be arrested at any time. Id. at ¶ 1. She believed her only options were
to pay, call the Defendant, or be arrested; but she was afraid that if she called, she could be
arrested sooner. Id. at ¶¶ 3–4. Because of her fear of arrest, the Plaintiff states that she “was too
scared to visit [her] family in Illinois and chose not to go on a trip [she] had previously planned.”
Id. at ¶ 5. She also explains that this letter caused her to be “short” with her family members, that
she struggled to do normal activities, including cooking and caring for her family like she used
to, and that she was “too scared to go into public.” Id. at ¶¶ 8–10. Lastly, the Plaintiff states that,
had she been informed of other options, “such as writing to the court or setting aside the
judgment,” she would have pursued those options or, at the very least, traveled to Illinois to see
her daughter. Id. at ¶ 11.
PROCEDURAL BACKGROUND
The Plaintiff filed her Complaint [ECF No. 1] on March 22, 2018, alleging that the
Defendant’s letter violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et
seq. Specifically, she claims that the Defendant engaged in behavior the natural consequence of
1
In the Table of Contents for her exhibits, the Plaintiff’s Exhibit I is identified as “Angela Ross Affidavit
of 03/21/21.” See Table of Contents, ECF No. 71-1. The Court notes the discrepancy with the dates
because the Court previously said the Plaintiff needs to submit an affidavit or other evidence
demonstrating a concrete injury, see Mar. 3, 2021 Op. & Order 3, ECF No. 68, and this Affidavit, even
though it is dated March 22, 2020, was not submitted with her original motion for summary judgment
filed on May 8, 2020, see Pl. Exs. A–I, ECF No. 50-2.
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which was to harass, oppress, or abuse her in violation of § 1692d,2 and that the letter made
several false or misleading representations in violation of § 1692e. Compl. ¶¶ 14–17, ECF No. 1.
In a previous round of summary judgment briefing, the Plaintiff filed a Motion for
Summary Judgment [ECF No. 49], seeking judgment on her § 1692e claim, while the Defendant
filed a Motion to Reconsider [ECF No. 56] his original Motion for Summary Judgment. The
Court, however, denied these motions without prejudice so that the parties could brief standing in
light of recent Seventh Circuit opinions addressing standing in the context of FDCPA cases. See
Mar. 3, 2021 Op. & Order 2–4, ECF No. 68. The Court also granted the parties leave to refile
their motions for summary judgment. Id. at 4.
Thereafter, the Plaintiff filed her Motion for Partial Summary Judgment [ECF No. 71] on
April 2, 2021, and the Defendant filed his Cross-Motion for Summary Judgment on April 30,
2021 [ECF No. 76]. The parties also traded motions to strike in connection with their motions for
summary judgment. See ECF Nos. 77, 78, 83. These motions are currently pending as is the
standing issue that the Court raised in its previous opinion.
ANALYSIS
Federal courts are only permitted to decide legal questions that occur in the context of an
actual case or controversy. Alvarez v. Smith, 558 U.S. 87, 92 (2009) (citing U.S. Const., Art. III,
§ 2). Part of this principle is the concept of standing, which requires that “(1) the plaintiff
suffered a concrete and particularized injury in fact; (2) the injury is fairly traceable to the
2
Although the Complaint cites § 1692(g), see Compl. ¶ 14, ECF No. 1, the Court presumes this was a
mistake because the quotation she includes comes from § 1692d, see 15 U.S.C. § 1692d (“A debt
collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse
any person in connection with the collection of a debt.”). Similarly, the Plaintiff appears to state in her
motion for summary judgment that the Defendant’s letter violates 15 U.S.C. § 1692g, see Pl. Br. 2, ECF
No. 72, but she has not alleged any facts or raised any issues related to the notice provisions under that
section.
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challenged conduct; and (3) the injury is likely to be redressed by a favorable judicial decision.”
Spuhler v. State Collection Serv., Inc., 983 F.3d 282, 285 (7th Cir. 2020) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992)). The burden is on the party invoking a federal court’s
jurisdiction to establish these elements. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). Since
this case is at the summary judgment stage, a plaintiff “must ‘set forth by affidavit or other
evidence specific facts’ demonstrating” the standing requirements. Spuhler, 983 F.3d at 284
(quoting Lujan, 504 U.S. at 561).
As noted in the Court’s previous opinion, the Seventh Circuit issued a number of
decisions that address standing for FDCPA plaintiffs, specifically as it relates to the “injury in
fact” requirement. See, e.g., Larkin v. Fin. Sys. of Green Bay, Inc., 982 F.3d 1060, 1064 (7th Cir.
2020) (“Many disputes about standing turn on the ‘injury in fact’ requirement, and these two
cases fall within that category.”). “To establish injury in fact, a plaintiff must show that he or she
suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 578 U.S. at 339 (quoting Lujan,
504 U.S. at 560). An injury is particularized when it has a personal and individual effect on the
plaintiff, and it is concrete when it is a real, non-abstract injury. Id. at 339–40. With that said,
intangible harms may be concrete injuries, but courts consider the relationship between the
intangible harm and harms that traditionally form the basis for suits under American or English
law. Id. at 340–41.
Following Spokeo, the Seventh Circuit held that a bare procedural violation of the
FDCPA is insufficient to create a concrete harm for standing purposes. Casillas v. Madison Ave.
Assocs., Inc., 926 F.3d 329, 339 (7th Cir. 2019). The court then extended this understanding to
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the substantive provisions of the FDCPA, which are applicable here.3 See Larkin, 982 F.3d at
1066 (“An FDCPA plaintiff must allege a concrete injury regardless of whether the alleged
statutory violation is characterized as procedural or substantive.” (citing Thole v. U.S. Bank N.A.,
140 S. Ct. 1615, 1621 (2020))). Thus, a plaintiff cannot simply rely on a FDCPA violation to
prove standing but must instead show “that the statutory violation harmed [her] ‘or presented an
appreciable risk of harm to the underlying concrete interest that Congress sought to protect.’” Id.
(quoting Casillas, 926 F.3d at 333).
In light of this understanding, the Seventh Circuit has rejected a number of injuries
common among FDCPA plaintiffs. This includes anxiety, embarrassment, stress, annoyance,
intimidation, infuriation, and disgust. See Wadsworth v. Kross, Lieberman & Stone, Inc., 12
F.4th 665, 668 (7th Cir. 2021) (citing Pennell v. Glob. Tr. Mgmt., 990 F.3d 1041, 1045 (7th Cir.
2021); Gunn v. Thrasher, Buschmann & Voelkel, P.C., 982 F.3d 1069, 1071 (7th Cir. 2020)).
These types of injuries are “quintessential abstract harms” that do not confer standing on their
own. Id. Similarly, a plaintiff’s confusion does not amount to an injury unless she acted, “to her
detriment, on that confusion.” Brunett v. Convergent Outsourcing, Inc., 982 F.3d 1067, 1068
(7th Cir. 2020). This might include, for example, confusion that “leads her to pay something she
does not owe, or to pay a debt with interest running at a low rate when the money could have
been used to pay a debt with interest running at a higher rate.” Id. But, generally speaking, the
plaintiff must show that the letter “led her to change her course of action or put her in harm’s
way.” Pennell, 990 F.3d at 1045.
3
The Plaintiff asserts claims under the substantive provisions of the FDCPA by alleging violations of 15
U.S.C. §§ 1692d and 1692e, which, respectively, prohibit “harassment or abuse” and “false, deceptive, or
misleading representations” in connection with debt collection. See Larkin, 982 F.3d at 1065–66.
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Turning to this case, the Plaintiff submitted a new affidavit with her renewed motion for
summary judgment that describes various injuries. She describes generally how the letter
affected her emotionally, including being “short” with her family, confused by the letter, scared
of being arrested and going in public, scared for her daughter, and unable to “function to do
normal stuff” like taking care of family members. See Pl. Ex. I, ¶¶ 1, 4, 6, 8–10. She also
explains that because she thought she could be arrested, she “was too scared to visit [her] family
in Illinois and chose not to go on a trip [she] had previously planned.” Id. at ¶ 5. Finally, she
claims that, had the letter informed her of other options, “such as writing to the court or setting
aside the judgment, [she] would have pursued those options. At the very least, [she] would have
taken [her] daughter to college or visited her had [she] known [she] could not be arrested in
Illinois.” Id. at ¶ 11.
For starters, many of the Plaintiff’s purported harms consist of emotional injuries—i.e.,
stress, fear, and anxiety. While these types of injuries are insufficient to create standing on their
own, see Wadsworth, 12 F.4th at 668, the Plaintiff provides some additional information like
being “short” with her parents and being unable to function as normal. However, when a plaintiff
proceeds on purely emotional harms, courts typically require more specific evidence, such as
physical manifestations or a medical diagnosis. See Pennell, 990 F.3d at 1045; see also Kasten v.
LVNV Funding, LLC, No. 19-CV-428, 2021 WL 1102163, at *6 (E.D. Wis. Mar. 23, 2021)
(explaining that “a plaintiff whose own testimony is the only proof of emotional damages ‘must
explain the circumstances of [her] injury in reasonable detail; [she] cannot rely on mere
conclusory statements’” (quoting Denius v. Dunlap, 330 F.3d 919, 929 (7th Cir. 2003))). Here,
the Plaintiff’s affidavit continues to describe her injuries in largely abstract terms and provides
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no comparable evidence to show a concrete emotional injury. She has therefore failed to carry
her burden at summary judgment to set forth specific facts regarding these injuries.
The next injury the Plaintiff describes is her choice not to take a planned trip to visit
family in Illinois because she feared being arrested based on the statements in the Defendant’s
letter. The Plaintiff argues this creates standing because she relied on the letter’s statements to
her detriment. Pl. Br. 14–15, ECF No. 76. Not only does this injury lack specifics about the trip
and the resulting harm, but it also does not assert a cognizable injury under the current FDCPA
standing cases.
When describing the types of detrimental acts that might confer standing, the Seventh
Circuit focuses primarily on actions related to a plaintiff’s debt management. See, e.g., Markakos
v. Medicredit, Inc., 997 F.3d 778, 780 (7th Cir. 2021) (“For example, an FDCPA violation might
cause harm if it leads a plaintiff to pay extra money, affects a plaintiff’s credit, or otherwise
alters a plaintiff’s response to a debt.”); Spuhler, 983 F.3d at 286 (explaining that the misleading
statement “must have detrimentally affected the debtors’ handling of their debts”). District courts
in the Seventh Circuit have similarly acknowledged this understanding when describing potential
acts that might create standing. See, e.g., Tataru v. RGS Fin., Inc., No. 18-cv-6106, 2021 WL
1614517, at *2 (N.D. Ill. Apr. 26, 2021) (“This most recent line of precedents makes clear that
an FDCPA plaintiff must show that the statutory violation caused them to take some detrimental
step and mishandle their debt.”); Rodriguez v. Beyer & Assocs. LLC, No. 19-C-1677, 2021 WL
179596, at *4 (E.D. Wis. Jan. 19, 2021). This does not mean that non-debt management injuries
can never suffice for standing purposes; however, the cases suggest that the Plaintiff’s harm of
cancelling a trip is disconnected from the concrete interests underlying the FDCPA. As the
Spuhler court explained, the “FDCPA envisions that debtors will use accurate, non-misleading
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information in choosing how to respond to collection attempts and how to manage and repay
their debts.” Spuhler, 983 F.3d at 286. The Plaintiff has not tied her cancelled family trip to
either the purposes of the FDCPA generally or the specific provisions applicable to the
Defendant’s statements.
Furthermore, the Plaintiff has not shown any relationship between the harm of choosing
not to go on a trip and “a harm that has traditionally been regarded as providing a basis for a
lawsuit in English or American courts.” Spokeo, 578 U.S. at 340–41; see also Gadelhak v. AT&T
Servs., Inc., 950 F.3d 458, 463 (7th Cir. 2020) (explaining how unwanted text messages that
violate a provision of the Telephone Consumer Protection Act “pose the same kind of harm that
common law courts recognize”). She briefly mentions in her Complaint that she “believed that
the letter inhibited her willingness to freely travel, . . . a loss to her protected liberty interest,” see
Compl. ¶ 11, but she does not raise this argument in her summary judgment brief.4 The Plaintiff
also failed to analogize her injury with any historical comparison at common law. See
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021) (stating that “reputational harms,
disclosure of private information, and intrusion upon seclusion” are examples of traditional
harms). The Plaintiff’s failure to address these issues is further complicated by the lack of
specific facts showing the harm she suffered as a result of not going on her trip. Therefore, the
Court concludes that the Plaintiff’s choice to cancel her trip does not amount to a concrete injury.
4
Although violations of constitutional rights can help establish a concrete injury, see TransUnion LLC v.
Ramirez, 141 S. Ct. 2190, 2208 (2021) (explaining that injuries with a close relationship to traditional
harms “include harms specified by the Constitution itself”), it is not clear that the Plaintiff’s liberty
interest in freely traveling would create standing in this case. The right to travel has three components,
including “the right of a citizen of one state to enter and leave another state.” Chavez v. Ill. State Police,
251 F.3d 612, 648 (7th Cir. 2001) (citing Saenz v. Roe, 526 U.S. 489, 500 (1999)). However, the
Plaintiff’s concerns about arrest derive from a legitimate arrest warrant, and restrictions on the right to
travel are permissible when there are grounds for arrest supported by probable cause. Cf. Jones v. Helms,
452 U.S. 412, 419 (1981) (describing limits on the right to travel when there is probable cause that may
justify an arrest).
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The Plaintiff finally argues that she was injured because, had the letter informed her of
other options, “such as writing to the court or setting aside the judgment,” she would have taken
those steps. Pl. Ex. I, ¶ 11. “The nonreceipt of information to which a plaintiff is entitled under a
statute may amount to a concrete injury, but only if it impairs the plaintiff’s ‘ability to use [that
information] for a substantive purpose that the statute envisioned.’” Bazile v. Fin. Sys. of Green
Bay, Inc., 983 F.3d 274, 280 (7th Cir. 2020) (quoting Robertson v. Allied Sols., LLC, 902 F.3d
690, 694 (7th Cir. 2018)). In Lavallee v. Med-1 Solutions, LLC, for example, the debt collector
did not tell the Plaintiff how to dispute her debt as was required by the FDCPA under 15 U.S.C.
§ 1692g(a). See 932 F.3d 1049, 1053 (7th Cir. 2019). This established a concrete injury because
it was “reasonable to infer that she would have exercised her statutory rights” of disputing the
debt, which would have halted a related collection lawsuit. Id. But here, the Plaintiff has not
identified a provision in the FDCPA that entitled her to receive the specific information about
writing to the state court or attempting to set aside the judgment. Nor has she explained how
taking those actions would be an exercise of her statutory rights under the FDCPA. Without any
clear basis in the statute for the information she seeks or the actions she would have taken, this
harm does not amount to a concrete injury.
Ultimately, the Plaintiff has not met her burden at summary judgment to provide
evidence of specific facts showing a concrete injury. She instead relied on injuries that have
already been rejected as insufficient for standing or described additional abstract harms that are
unconnected to the purpose of the FDCPA. Based on the recent developments in FDCPA cases,
the Court concludes that the Plaintiff has not identified a concrete injury and her case must be
dismissed. And since the Plaintiff lacks standing to bring her claims, the Court does not reach the
merits of the parties’ remaining motions.
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CONCLUSION
Based on the foregoing, the Plaintiff’s Complaint is DISMISSED without prejudice for
lack of subject matter jurisdiction. The Court also DENIES as moot the following motions:
Plaintiff’s Motion for Partial Summary Judgment [ECF No. 71]; Defendant’s Motion for
Summary Judgment [ECF No. 76]; Defendant’s Motion to Strike Affidavit of Chase Haller [ECF
No. 77]; Defendant’s Motion to Strike Affidavit of John Brengle [ECF No. 78]; and Plaintiff’s
Motion to Exclude Defendant’s Evidence and Strike Bona Fide Error Defense [ECF No. 83].
SO ORDERED on March 30, 2022.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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