Husainy v. Gutwein LLP

Filing 20

OPINION AND ORDER: The Court GRANTS IN PART and DENIES IN PART Defendant's Motion to Dismiss 12 . As to Plaintiff's claims for declaratory judgment, an FCDPA violation based on the disclosure of his social security number, and negligenc e, Defendant's Motion 12 is GRANTED and those claims are DISMISSED WITHOUT PREJUDICE. As to Plaintiff's remaining claims, Defendant's Motion 12 requesting dismissal is DENIED, and Defendant's alternate request for a more definite statement as to Plaintiff's remaining FCDPA claims is also DENIED. Signed by Judge Theresa L Springmann on 8/27/2020. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
SYED UMAR HUSAINY,
Plaintiff,
v.

CAUSE NO.: 4:18-CV-28-TLS-APR

GUTWEIN LLP,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss [ECF No. 12]. For the
reasons set forth below, Defendant’s motion is granted in part and denied in part.
BACKGROUND
This case arises from a number of Indiana State-Court actions in which Defendant
Gutwein, LLP, a law firm, represented Granite Management LLC in seeking to recover allegedly
unpaid debts from Plaintiff. Compl. ¶¶ 21, 28, ECF No. 1. On April 27, 2018, Plaintiff filed a
Complaint [ECF No. 1] “seeking declaratory relief under the Declaratory Judgment Act, 28
U.S.C. §§ 2201-2202, actual damages, statutory damages, attorneys’ fees, and costs, for
violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p, (“FDCPA”) and
negligence.” Id. ¶ 2. Plaintiff’s claims arise from Defendant’s actions in representing Granite
Management LLC’s attempted collection of debt from Plaintiff in Indiana state court
proceedings. On June 18, 2018, Defendant filed the instant Motion to Dismiss [ECF No. 12], and
the motion became ripe after Plaintiff filed a Response [ECF No. 15] and Defendant filed a
Reply [ECF No. 17]. On May 1, 2019, this matter was reassigned to the undersigned [ECF No.
18].

STANDARD OF REVIEW
A motion to dismiss brought under Rule 12(b)(6) “challenges the viability of a complaint
by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A.
Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). The complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
The Court presumes that all well-pleaded factual allegations are true, views these well-pleaded
allegations in the light most favorable to the plaintiff, and accepts as true all reasonable
inferences that may be drawn from the allegations. Reynolds v. CB Sports Bar, Inc., 623 F.3d
1143, 1146 (7th Cir. 2010). Surviving a Rule 12(b)(6) motion “requires more than labels and
conclusions . . . . Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although the court
must accept as true all well-pleaded facts and draw all permissible inferences in the Plaintiff’s
favor, it need not accept as true “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). Legal conclusions can provide a complaint’s framework, but unless
well-pleaded factual allegations move the claims from conceivable to plausible, they are
insufficient to state a claim. Id. at 680. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). A complaint must
“give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.”
Twombly 550 U.S. at 555. “The movant bears the burden of proving that the complaint fails to
state a claim for relief.” Five Star Airport All., Inc. v. Milwaukee Cty., 939 F. Supp. 2d 936, 938
(E.D. Wis. 2013) (citing Yeksigian v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990)).
ANALYSIS
Defendant makes several arguments for dismissal of Plaintiff’s Complaint, each of which
the Court will address in turn.
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A. Declaratory Judgment
First, Defendant seeks dismissal of Plaintiff’s request for a declaratory judgment that
Defendant has violated the Fair Debt Collection Practices Act (FDCPA). Compl. at 7. Defendant
argues that such a declaratory judgment is unavailable relief under the FDCPA. Def.’s Mem. in
Supp. of Mot. to Dismiss at 2, ECF No. 13. The Court agrees.
The FDCPA explicitly allows for financial recovery by an individual for violations
against a debt collector in a private action. 15 U.S.C. § 1692k (titled “Civil Liability”). The
FDCPA, however, is missing any provision explicitly allowing for a declaratory judgment in a
private action. See 15 U.S.C. §§ 1692–1692p. Accordingly, the Seventh Circuit Court of Appeals
has explicitly stated that “all private actions under the Fair Debt Collection Practices Act are for
damages.” Crawford v. Equifax Payment Servs., Inc., 201 F.3d 877, 882 (7th Cir. 2000).
Plaintiff cites numerous cases from other circuits that have allowed for private
declaratory judgment actions under the FDCPA. See Mem. in Opp. to Def.’s Mot. to Dismiss at
13–14, ECF No. 15. But the courts in these cases were not bound by Crawford as this Court is,
and so they are not relevant to this analysis. Plaintiff also cites district court decisions from this
circuit involving private declaratory judgment actions under the FDCPA. See id. (citing
Borcherding-Dittloff v. Transworld Sys., Inc., 185 F.R.D. 558 (W.D. Wis. 1999); Young v. Meyer
& Njus, P.A., 183 F.R.D. 231 (N.D. Ill. 1998); Gammon v. GC Servs. Ltd. P’ship, 162 F.R.D.
313 (N.D. Ill. 1995)). But these opinions were released prior to Crawford, and so again are not
relevant to this Court’s analysis. Accordingly, the Court grants Defendant’s motion to dismiss
Plaintiff’s request for a declaratory judgment.
B. Disclosure of Social Security Number
Next, the Complaint alleges that Defendant violated the FDCPA by including Plaintiff’s
unredacted social security number in filings in state court lawsuits that should have been
redacted. Compl. ¶¶ 43, 44. Defendant argues that this type of disclosure cannot constitute a

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violation of the FDCPA, citing cases addressing § 1692d and/or § 1692f. See Def.’s Mem. in
Supp. of Mot. to Dismiss at 4 (collecting cases).
Plaintiff argues that the disclosure of his social security number is a violation under
§ 1692e, and that, in addition to the disclosure, he seeks recovery under § 1692e because
Defendant “falsely represented that if it filed any documents considered confidential [containing
Plaintiff’s social security number] under Indiana Administrative Rule 9, it set the document to
confidential.” Mem. in Opp. to Def.’s Mot. to Dismiss at 7. Plaintiff notes that Defendant’s cited
cases only address violations under § 1692d or § 1692f. Id. Plaintiff argues that those cases are
inapposite because he seeks to recover under § 1692e, titled “False or misleading
representations,” and not § 1692d, titled “Harassment or abuse.” Id. (“None of the cases cited by
Defendant are on point, as they all are claims under Section 1692d or 1692f of the FDCPA;
Plaintiff’s claim regarding improper disclosure of his social security number relates to
Defendant’s false and misleading representation in connection with the attempt to collect the
debt, Section 1692e, which relates to the use of any false, deceptive, or misleading representation
or means in connection with the collection of any debt.”).
Defendant is correct insofar as the disclosure of Plaintiff’s social security number in
public documents filed in state court proceedings is not actionable under § 1692d. Feltman v.
Blatt, Hasenmiller, Leibsker & Moore, LLC, No. 06 C 2379, 2008 WL 5211024, at *5 (N.D. Ill.
Dec. 11, 2008) (finding that submitting a document containing a party’s social security number
as an exhibit in a lawsuit is not a violation of § 1692d). Under that statute, “[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.” 15 U.S.C. § 1692d (emphasis added).
The Court agrees with the reasoning in Feltman, where the opinion concluded:
[W]e have not found a case applying § 1692d to the type of behavior at issue here.
However, courts have held that threatening to file suit and filing a time-barred suit
to collect a debt does not constitute conduct, the natural consequence of which is
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to harass, abuse, or oppress. If threats to file a lawsuit and actually filing a timebarred lawsuit do not constitute harassing conduct under § 1692d, we do not think
that filing an exhibit in a lawsuit is conduct, the natural consequence of which is
to harass, abuse or oppress.
Feltman, 2008 WL 5211024, at *5 (citations to collected cases omitted).
Accepting Plaintiff’s argument that he means to proceed under § 1692e, he cannot
recover for the public disclosure of his social security number under that statute either. Under
§ 1692e, “[a] debt collector may not use any false, deceptive, or misleading representation or
means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Plaintiff has not
alleged that there was anything “false, deceptive, or misleading” about the actual disclosure of
his social security number—only that Defendant misrepresented to the state court that documents
containing Plaintiff’s social security number were confidentially filed when they were in fact not.
Therefore, the alleged disclosure of Plaintiff’s social security number cannot constitute a
violation of § 1692e.
However, the alleged representation by Defendant to Indiana state courts about whether it
set as confidential documents containing Plaintiff’s social security number is another matter. The
Court is troubled by the lack of argument or authority on this point presented by either party.
Plaintiff has presented no authority where a court has ruled that such an alleged
misrepresentation constitutes a violation of § 1692e, and the nature of the non-exclusive list of
examples of violations contained within that section seem to preclude such a violation. See, e.g.,
15 U.S.C. § 1692e (“(1) The false representation or implication that the debt collector is vouched
for, bonded by, or affiliated with the United States or any State . . . (2) The false representation
of-- (A) the character, amount, or legal status of any debt; . . . .”). On the other side, Defendant
has not presented any authority that such a representation is not a violation of § 1692e, and
Defendant’s reply brief did not specifically address Plaintiff’s citation to § 1692e. See Def.’s
Reply in Support of Def.’s Mot. to Dismiss at 3, ECF No. 17 (“This is a confusing allegation in
itself. How this is it happened [sic] violates the FDCPA is totally unclear.”).

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It appears to this Court that, accepting Plaintiff’s allegation as true that Defendant made
false statements about the confidential status of documents containing Plaintiff’s social security
number, that conduct would potentially fit under the broad umbrella of § 1692e of using “any
false, deceptive, or misleading representation or means in connection with the collection of any
debt.” Accordingly, if false statements to a state court about filing a social security number under
seal in fact constitute a violation of § 1692e, then Plaintiff has stated a claim. Because Defendant
has the burden of establishing that Plaintiff is not entitled to recovery at the 12(b)(6) stage, see
Five Star Airport All., Inc., 939 F. Supp. 2d at 938, the Court concludes that Defendant has not
met its burden and the motion to dismiss must be denied as to the potential claim regarding false
statements about the confidential status of documents filed in state court.
C. Negligence
The Complaint also states a supplemental claim for negligence against Defendant for the
disclosure of Plaintiff’s social security number. Compl. ¶¶ 67–73. State law supplemental claims
in federal court are governed by the substantive state law where the federal district court sits. See
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (citing Erie R. Co. v. Tompkins,
304 U.S. 64 (1938)). To demonstrate a claim of negligence under Indiana law, Plaintiff must
allege: (1) a duty owed to him by Defendant, (2) breach of that duty by Defendant, and (3) injury
proximately caused by Defendant’s breach of duty. DeSimone v. Noonan, No. 1:09-CV-1421,
2012 WL 3027998, at *3 (S.D. Ind. July 24, 2012) (citing Kroger Co. v. Plonski, 930 N.E.2d 1, 6
(Ind. 2010)).
Defendant argues that this cause of action must fail because it owed no duty to Plaintiff
and that is an essential element of a negligence claim. Def.’s Mem. in Supp. of Mot. to Dismiss
at 4–5. Plaintiff first attempts to rebut this by arguing that, while duty is a question of law, the
Court should not rule on it here because “[s]ometimes . . . the existence of a duty depends upon
underlying facts that require resolution by the trier of fact.” Mem. in Opp. to Def.’s Mot. to
Dismiss at 11. But Plaintiff has not identified any facts, whether potentially disputed or
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otherwise, that would preclude this Court ruling on Defendant’s duty to Plaintiff as a matter of
law. Accordingly, this argument fails.
Plaintiff also argues that Defendant owed him a duty by virtue of the obligations imparted
by the Indiana Administrative Rules and Indiana Rules of Professional Conduct. Id. at 12. But
according to the Indiana Supreme Court: “civil liability in damages may not be predicated on a
claimed violation of a specific professional conduct rule relating to fiduciary duties.” Liggett v.
Young, 877 N.E.2d 178, 183 (Ind. 2007). And further, “[a]bsent fraud, collusion, malicious or
tortious conduct on the part of an attorney, the rule is . . . well established that no liability to third
parties arises from the attorney’s conduct as an attorney for another.” Meier v. Pearlman, 401
N.E.2d 31, 40 (Ind. 1980). The Court therefore concludes that, accepting the allegations in the
Complaint as true, Plaintiff cannot establish a claim for negligence against Defendant for
disclosing his social security number in Indiana state court proceedings based on alleged
violations of the Indiana Administrative Rules or Indiana Rules of Professional Conduct. Thus,
Plaintiff has failed to properly allege that Defendant owed him a duty, and his negligence claim
must be dismissed.
D. Remaining claims under the FDCPA
Defendant also argues, “Beyond the declaratory claim and the claim for disclosure of the
social security number, no other allegations are sufficient to state a claim. The remainder are
legal conclusions and threadbare recitals of the elements of the cause of action and with no
specific facts.” Def.’s Mem. in Supp. of Mot. to Dismiss at 4. Defendants suggests that
documents would be helpful to determine the basis of the claims, but Defendant offers no further
specific argument, law, or analysis in support. Id. Plaintiff argues in response that the Complaint
does allege facts that give rise to claims under the FDCPA and cites paragraphs 40, 41, 48–50,
55–57, 61, and 66 of the Complaint as specific examples. Mem. in Opp. to Def.’s Mot. to
Dismiss at 5–6.

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The Seventh Circuit has said that Iqbal requires that plaintiffs must provide “some
specific facts to ground [their] legal claims.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
Further, “in considering the plaintiff’s factual allegations, courts should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id.
While courts are bound to accept factual assertions as true, “legal conclusions and conclusory
allegations merely reciting the elements of the claim are not entitled to this presumption of
truth.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). The Court agrees that
Plaintiff has raised a dizzying number of claims in the Complaint, some of which appear to be no
more than legal conclusions with no supporting facts. Plaintiff has cited the following paragraphs
as providing the factual basis for the remaining claims in the Complaint:
40. Gutwein attempted to collect doc prep fees from Mr. Husainy through a lawsuit in
Tippecanoe County, State of Indiana, Cause No. 79D06-1701-SC-000324.
41. Gutwein attempted to collect doc prep fees from Mr. Husainy through a lawsuit in
Tippecanoe County, State of Indiana, Cause No. 79D06-1706-PL-000080.
...
48. Gutwein, through its representation of Granite Management LLC, sued Mr. Husainy
through Cause No.79D06-1701-SC-000324 and 79D06-1706-PL-000080 in Tippecanoe
County Superior Court VI.
49. Gutwein attempted to collect a debt that Plaintiff did not owe.
50. Gutwein falsely represented the character, amount, or legal status of a debt.
...
55. Gutwein attempted to collect an amount of money from Mr. Husainy that is not expressly
authorized by an agreement creating the debt.
56. Gutwein attempted to collect money for “doc prep fees” through a lawsuit arising out of a
landlord tenant relationship.
57. Gutwein attempted to collect money from Plaintiff that is not permitted by law.
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...
61. Mr. Husainy incorporates herein by reference all of the foregoing paragraphs in full
herein.
...
66. Gutwein falsely represented the amount of debt Mr. Husainy owed Granite.
Compl. ¶¶ 40, 41, 48–50, 55–57, 61, 66.
When read together, these quoted paragraphs raise allegations sufficient to survive
Defendant’s threadbare argument in favor of dismissal. For example, while paragraphs 49 and 50
merely state the elements of violations of 15 U.S.C. §§ 1692e, 1692f, paragraphs 40 and 41
reference specific debt collection actions. Compl. ¶¶ 40–41, 49–50. Together, this gives rise to
the reasonable inference that the debt collection actions provide the factual basis for the statutory
violations alleged in paragraphs 49 and 50. See Iqbal, 556 U.S. at 678. Also, paragraph 56
references an attempt to collect money for “doc prep fees,” and paragraph 55 alleges that an
attempt to collect an amount of money that is “not expressly authorized by an agreement creating
the debt. See 15 U.S.C. § 1692f (1) (stating that it is a violation of this section for a debt collector
to collect “any amount (including any interest, fee, charge, or expense incidental to the principal
obligation) unless such amount is expressly authorized by the agreement creating the debt or
permitted by law”). The Court therefore concludes that Defendant has not met its burden of
establishing that Plaintiff cannot recover on these remaining claims, and the Court denies the
motion as to the remaining claims.
E. Motion for a More Definite Statement
Defendant’s Motion [ECF No. 12] asked for alternative relief in the form of a more
definite statement under Rule 12(e) if the Court did not dismiss Plaintiff’s Complaint. Under that
Rule, “[a] party may move for a more definite statement of a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare
a response. . . . The motion . . . must point out the defects complained of and the details desired.”
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Fed. R. Civ. P. 12(e). A motion for a more definite statement should be granted “only in cases
where the movant cannot reasonably be required to frame an answer or other responsive
pleading to the pleading in question.” Fed. R. Civ. P. 12(e) advisory committee’s note to 1946
amendment (emphasis added). “Motions for a more definite statement should not be used to gain
additional information, but, particularly in light of our liberal notice pleading requirement,
should be granted only when the pleading is so unintelligible that the movant cannot draft a
responsive pleading.” Kingsbury Int’l, Ltd. v. Trade The News, Inc., No. 08 C 3110, 2008 WL
4853615, at *2 (N.D. Ill. Oct. 28, 2008) (citations and internal quotation marks omitted); see also
U.S. for Use of Argyle Cut Stone Co., Inc. v. Paschen Contractors, Inc., 664 F. Supp. 298, 303
(N.D. Ill. 1987) (“Rule 12(e) motions are not substitutes for discovery.”).
Here, Defendant’s Motion [ECF No. 12] requested a more definite statement, but neither
the brief in support [ECF No. 13] nor the motion provides any argument explaining why or how
the claim is deficient under Rule 12(e) or cites any authority beyond the rule. Accordingly, the
request fails to meet the explicit requirement in Rule 12(e) that the motion must “must point out
the defects complained of and the details desired,” and must be denied. If that were not enough,
the request for alternative relief is also forfeited because of the lack of argument on the topic. See
Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir. 1990) (“A litigant who fails
to press a point by supporting it with pertinent authority, or by showing why it is sound despite a
lack of supporting authority or in the face of contrary authority, forfeits the point.” ); see also
Tucker v. Collagen Corp., No. 93 C 2375, 1994 WL 87367, at *5 n.2 (N.D. Ill. Mar. 16, 1994)
(“This court has neither the time nor the inclination to do the Defendants’ research for them.”). 1
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Defendant’s Motion to Dismiss [ECF No. 12]. As to Plaintiff’s claims for declaratory judgment,
1

Further, while the Court will not provide a full analysis of this matter without the benefit of adequate briefing and
argument, it is notable that Defendant failed to meet its burden under Rule 12(b)(6), and that motions under Rule
12(e) are generally disfavored, Moore v. Fid. Fin. Servs., Inc., 869 F. Supp. 557, 559 (N.D. Ill. 1994).

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an FCDPA violation based on the disclosure of his social security number, and negligence,
Defendant’s Motion [ECF No. 12] is GRANTED and those claims are DISMISSED WITHOUT
PREJUDICE. As to Plaintiff’s remaining claims, Defendant’s Motion [ECF No. 12] requesting
dismissal is DENIED, and Defendant’s alternate request for a more definite statement as to
Plaintiff’s remaining FCDPA claims is also DENIED.
SO ORDERED on August 27, 2020.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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