Maxwell v. St. Francis Health Center, Inc. et al

Filing 52

MEMORANDUM AND ORDER granting in part and denying in part 26 , 29 & 33 Motions to Dismiss. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 9/13/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

STEPHANIE J. MAXWELL,
Plaintiff,
vs.

Case No. 17-4014-SAC-KGS

ST. FRANCIS HEALTH CENTER, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff,

Stephanie

servicemember.
Hollins

and

J.

Maxwell,

is

a

military

She has brought this action against H. Kent

his

law

firm,

H.

Kent

Hollins

PA

(“the

Hollins

defendants”).

Plaintiff is also suing St. Francis Health Center

and

of

the

City

defendants

in

two

Topeka
debt

who

were

collection

represented
actions

by

the

against

Hollins

plaintiff

which were filed in 2009 when plaintiff’s name was Palmisano.
Plaintiff alleges defendants violated federal and state law in
the debt collection efforts.
defendants’

motions

to

This case is before the court upon

dismiss

pursuant

to

FED.R.CIV.P.

12(b)(6).
I.

Rule 12(b)(6) standards
Upon a Rule 12(b)(6) motion, the court accepts plaintiff’s

well-pleaded factual allegations as true and determines whether
plaintiff has provided enough facts to state a claim to relief

1

that

is

plausible

on

its

face.

George

v.

Urban

Settlement

Services, 833 F.3d 1242, 1247 (10th Cir. 2016)(interior quotation
omitted).
pled

“[A] claim is facially plausible if the plaintiff has

‘factual

reasonable

content

inference

that

misconduct alleged.’”
1096,

1104

(10th

that

allows

the

the

defendant

court
is

to

draw

the

for

the

liable

Id. (quoting Hogan v. Winder, 762 F.3d

Cir.

2014)).

The

court

may

consider:

documents incorporated by reference in the complaint; documents
referred to in and central to the complaint, when there is no
dispute as to authenticity; and matters of which a court may
take judicial notice.
Cir. 2010).

Gee v. Pacheco, 627 F.3d 1178, 1186 (10th

The court's function is not to weigh potential

evidence that the parties might present at trial.

See Proctor &

Gamble Co. v. Haugen, 222 F.3d 1262, 1278–79 (10th Cir. 2000).
II. Allegations in the complaint and documents referenced in the
complaint
The

following

allegations

are

taken

primarily

from

the

first amended complaint and almost identical affidavits filed by
defendant H. Kent Hollins in the state court debt collection
cases.
the

The court treats the affidavits as documents central to

complaint

as

to

which

there

is

no

dispute

as

to

authenticity.1

1

The affidavits are referred to in plaintiff’s first amended complaint (at ¶
57) and they are attached as exhibits to the Hollins defendants’ motion to
dismiss (Doc. Nos. 27-3 and 27-4).

2

Plaintiff alleges that she enlisted in the United States
Air Force on April 9, 2009, reported to active duty on April 14,
2009, and has been on active duty continuously from that date
through the date this action was filed.

On April 24, 2009, St.

Francis and the City of Topeka, through the Hollins defendants,
each

filed

a

debt

collection

lawsuit

against

plaintiff

in

Shawnee County District Court.
From December 28, 2009 through April 21, 2015, the Hollins
defendants ran several searches on the Defense Manpower Data
Center

(DMDC)

website

to

active military duty.
name

“Stephanie

whether

plaintiff

was

on

The searches were conducted under the

Palmisano”

social security number.

determine

(plaintiff’s

maiden

name)

and

her

Through 2011, the searches showed that

plaintiff was on active military duty.

This caused the Hollins

defendants to ask the court to stay the debt collection cases
against plaintiff.

According to the Hollins affidavits, which

are supported by exhibits showing the search results, in 2012
and 2013 some searches showed that plaintiff was on active duty
and some showed that plaintiff was not on active duty.2
On

July

16,

2014,

a

DMDC

Palmisano was not on active duty.

search

that

Stephanie

The Hollins defendants then

requested and received an alias summons.
2

showed

On January 13, 2015,

Paragraph 56 of the amended complaint indicates that all of the searches
done in 2012 and 2013 showed that plaintiff was not on active duty.
The
difference between paragraph 56 and the Hollins affidavits is not important
to the court’s decision here.

3

plaintiff called the Hollins law firm and left a message.
firm representative returned her call.
plaintiff

did

not

indicate

that

A law

During the conversation,

her

name

had

changed.

She

stated that she was employed by the military.
The

Hollins

defendants

attempted

to

serve

plaintiff

by

certified mail on January 15, 2015 at an address in Oklahoma.
The return indicated that it was “signed by other” and the green
card

showed

Maxwell.”

that
The

it

was

Hollins

signed

by

defendants

the

addressee

conducted

“Stephanie

two

other

DMDC

searches on February 16, 2015 and March 6, 2015.

These showed

that Stephanie Palmisano was not on active duty.

The Hollins

defendants did not search under the name Stephanie Maxwell until
after default judgment was entered and they received a letter
from plaintiff’s attorney.
The Shawnee County District Court entered default judgment
against plaintiff on February 24, 2015 in favor of defendant
City of Topeka and on March 6, 2015 in favor of defendant St.
Francis.
proper

The applications for default judgment alleged that

service

had

been

effected

and,

through

an

affidavit

signed by defendant Hollins, that plaintiff was not on active
military duty.

The affidavit read in part as follows:

I, H. Kent Hollins, of lawful age, and being first
duly sworn, on oath state that I am the plaintiff or
petitioner, in the above entitled case, and I make
this affidavit pursuant to the provisions of the
Service members Civil Relief Act of 2003; that I have
4

caused a careful investigation to be made to ascertain
whether or not the above named defendant or respondent
is in the active service of the Army of the United
States, the United States Navy, the United States
Marine Corps, the United States Coast Guard, the
United States Air Force, the National Guard or of any
Public Health Service detailed by proper authority for
duty with the military; and, that as a result of said
investigation, I hereby state that the defendant or
respondent is not in any of the above-named branches
of the military service nor has the defendant or
respondent received notice of induction or notice to
report for active service.
Doc. No. 27-1, p. 5 and Doc. No. 27-2, p. 5.3

Plaintiff alleges

that it was false to represent in the affidavit that there had
been a careful investigation and that it was false to represent
that plaintiff was not in active military service.
The Hollins defendants received a demand letter referencing
“Stephanie J. Maxwell (Palmisano)” from plaintiff’s counsel in
April

2015.

The

letter

asked

to

set

aside

the

default

judgments.

The Hollins defendants conducted another DMDC search

using

name

the

number.
duty.

Stephanie

Palmisano

and

her

social

security

This search showed that plaintiff was not on active
The same day defendants did a DMDC search for Stephanie

Maxwell

and

her

social

security

number

which

showed

that

plaintiff was on active duty.
On July 9, 2015, plaintiff moved to set aside the default
judgments.

On May 10, 2016, the Shawnee County District Court

granted the motion to set aside the default judgments on the
3

The same language was used in four prior affidavits as found in Doc. No. 271, pp. 1-4 and Doc. No. 27-2, pp. 1-4.

5

grounds

that

defendants

had

not

obtained

proper

service

on

plaintiff.
Plaintiff does not allege that the Hollins defendants were
the employees of defendants St. Francis or the City of Topeka.
Plaintiff

does

allege

that

the

Hollins

defendants

were

the

agents of St. Francis and the City of Topeka.
III. The Hollins defendants’ motion to dismiss shall be granted
in part and denied in part.
A. Count One – the Servicemembers
(“SCRA”), 50 U.S.C. § 3901 et seq.

Civil

Relief

Act

Plaintiff alleges that defendants are liable for damages
under that part of the SCRA which penalizes the filing of a
false

affidavit

regarding

whether

a

defendant

is

in

active

military service prior to entering judgment. The SCRA at 50
U.S.C.

§

3931(a)&(b)

requires

that

in

any

civil

action

or

proceeding in which the defendant does not make an appearance,
the

court,

before

entering

judgment

for

the

plaintiff

shall

require the plaintiff to file with the court an affidavit:
(A) stating whether or not the defendant is in
military service and showing necessary facts to
support the affidavit; or (B) if the plaintiff is
unable to determine whether or not the defendant is in
military service, stating that the plaintiff is unable
to determine whether or not the defendant is in
military service.
Subsection (c) further provides a possible criminal penalty for
making

or

using

(emphasis added).

an

affidavit

“knowing

it

to

be

false.”

A civil cause of action is authorized under
6

50

U.S.C.

§

4042

for

appropriate

relief,

including

monetary

damages, to any person aggrieved by a violation the SCRA.
Defendants

assert

that

plaintiff

has

not

alleged

facts

describing a plausible claim that the Hollins defendants filed
affidavits which were knowingly false.
“knowing.”

The SCRA does not define

The court is guided by its ordinary meaning.

U.S. v. Dobbs, 629 F.3d 1199, 1203-04 (10th Cir. 2011).
court

asks

plausible

here

claim

whether
that

plaintiff’s

defendants

allegations

submitted

an

See

So, the
state

affidavit

a
in

possession of knowledge, intelligence or understanding that it
was, or may be, false.
ed. 2017).

See Oxford English Dictionary (online

In addition, the court follows the approach other

courts have taken in construing a comparable statute, 18 U.S.C.
§ 1001.4

Courts have determined that reckless disregard of the

truth is sufficient to sustain a criminal conviction for the
violation of § 1001.

U.S. v. London, 66 F.3d 1227, 1241-42 (1st

Cir. 1995); U.S. v. Puente, 982 F.2d 156, 159 (5th Cir. 1993);
U.S. v. Gottlieb, 493 F.2d 987, 994 (2nd Cir. 1974)(person may be
convicted for recklessly stating he was in the National Guard,
when

he

didn’t

know

whether

or

not

he

was

in

the

National

Guard); see also, U.S. v. Strandlof, 667 F.3d 1146, 1165 (10th
Cir.

2012)(one

can

be

prosecuted

4

under

§

1001

without

Section 1001 in general makes it a crime to “knowingly and willfully” make
any “materially false, fictitious or fraudulent statement or representation”
in any matter within the jurisdiction of the executive, legislative or
judicial branches of the United States Government.

7

intentionally

lying)

abrograted

on

other

grounds,

U.S.

v.

Alvarez, 567 U.S. 709 (2012).
According to the complaint and other documents referenced
in

the

complaint,

the

Hollins

defendants

had

knowledge

that

Stephanie Palmisano was on active military duty for about three
years starting in April 2009.
DMDC

searches

may

be

There were indications that the

producing

inconsistent

results.

The

Hollins defendants also knew that she telephoned in January 2015
and told them she was employed by the military.

A couple of

days later a “Stephanie Maxwell” signed for a piece of certified
mail sent to Stephanie Palmisano.

This did not cause defendants

to do a DMDC search for the name Stephanie Maxwell.

The Hollins

defendants were also aware that the DMDC website cautioned that
further steps should be taken to check on the military status of
persons if they had evidence that the person was on active duty
for the active duty status date.5

5

Given these alleged facts the

The website states:
The DoD strongly supports the enforcement of the Servicemembers
Civil
Relief
Act
(50
U.S.C.
App.
§
501
et
seq.
as
amended)(SCRA)(formerly known as the Soldiers’ and Sailors’ Civil
Relief Act of 1940).
DMDC has issued hundreds of thousands of
“does not possess any information indicating that the individual
is currently on active duty” responses, and has experienced only
a small error rate.
In the event the individual referenced
above, or any family member, friend, or representative asserts in
any manner that the individual was on active duty for the active
duty status date, or is otherwise entitled to the protections of
the SCRA, you are strongly encouraged to obtain further
verification of the person’s status by contacting that person’s
Service via the “defenselink.mil” [website address]. If you have
evidence the person was on active duty for the active duty status
date and you fail to obtain this additional Service verification,

8

court believes plaintiff has stated a plausible claim that the
Hollins defendants submitted a knowing false affidavit stating
that

plaintiff

was

not

on

active

duty

and

that

they

had

conducted a careful investigation as to her active duty status.6
B. Count Two – the Kansas Consumer Protection Act (“KCPA”),
K.S.A. 50-623 et seq.
In

Count

Two

of

the

first

amended

complaint,

plaintiff

alleges that defendants violated the KCPA because they committed
deceptive or unconscionable acts.

There is no dispute that the

KCPA

activities

applies

creditor

or

agencies.

to
his

debt

collection

agent,

including

engaged

independent

debt

in

by

a

collection

See State ex rel. Miller v. Midwest Service Bureau of

Topeka, Inc., 623 P.2d 1343, 1345 (Kan. 1981).

The court’s

analysis here is guided in part by the KCPA provision stating
that

it

is

to

be

construed

liberally

in

order

to

protect

consumers from suppliers who commit deceptive and unconscionable
practices.

K.S.A. 60-623.

punitive provisions of the SCRA may be invoked against you. See
50 U.S.C. App. § 521(c).
Doc. No. 27-4, p. 12.
6
Plaintiff suggests that a less demanding standard for liability should be
applied for a civil action alleging a SCRA violation.
Because the court
finds that a cause of action has been described if a “knowing standard” is
applied, the court does not reach plaintiff’s argument for a different
standard here.

9

1. Deceptive acts
Plaintiff’s KCPA claims are not clearly stated in the first
amended complaint.7
in

regard

to

The court relies upon the argumentation made

the

motions

to

dismiss

to

help

delineate

the

claims. It appears to the court that plaintiff intends to claim
that

defendants

violated

K.S.A.

50-626(b)(2)

and

(3)

which

prohibit defendants from the following practices “in connection
with a consumer transaction: . . .
oral

or

innuendo
willful

written
or

ambiguity

failure

concealment,

representation,

to

as

to

state

suppression

a
or

a

(2) the willful use, in any
of

exaggeration,

material

material
omission

fact;

falsehood,

[and]

(3)

fact,

or

of

material

a

the

the

willful
fact.”

Although, in ¶ 108 of the first amended complaint, plaintiff
asserts that defendants also filed inadequate service returns
and engaged in “sewer serving” individual consumers, it appears
that

plaintiff

is

relying

upon

the

alleged

filing

of

false

affidavits as the actual basis of her KCPA claim.8
In the Hollins defendants’ motion to dismiss, they claim
that the first amended complaint does not allege any deceptive
acts or practices that violate those sections of the KCPA in
7

Plaintiff appears to admit as much in her response to the Hollins
defendants’ motion to dismiss. Doc. No. 38, p. 11.
8
The first amended complaint also references 50-626(b)(1) and (b)(8). Doc.
No. 18, ¶ 103.
Subsection (b)(1) concerns representations made regarding
property, services or rebates, discounts or other benefits tied to a consumer
transaction.
Subsection (b)(8) concerns false statements that a consumer
transaction involves consumer rights, remedies or obligations.
These
provisions do not appear relevant to plaintiff’s alleged facts.

10

spite of the obligation to plead the claim with particularity.
Defendants also claim that plaintiff alleges no facts showing
that

the

Hollins

defendants

willfully

violated

the

KCPA

as

required for a violation of subsection (b)(3).
The

court

disagrees.

The

described with particularity.

alleged

false

affidavits

are

These affidavits are alleged to

contain falsehoods or the omission of material facts.

Those

facts are material to the enforcement of a consumer transaction
which, according to Miller, is in the ambit of the KCPA.9
the

affidavits

may

have

been

directed

at

a

While

state

court,

plaintiff has alleged facts describing harm from the affidavits.
This is sufficient for plaintiff to bring a KCPA claim since the
statute

does

not

plainly

require

that

the

falsehood

or

concealment be directed at a consumer.
Finally,

although

this

is

a

close

question,

the

court

rejects the Hollins defendants’ argument that plaintiff has not
alleged facts showing willfulness.
(3)

require

“willful”

misconduct.

Sections 50-626(b)(2) and
A

“willful”

performed with the intent to harm the consumer.
Mills,

LLC,

221

P.3d

1130,

1139

(Kan.

2009).

act

is

one

Unruh v. Purina
The

Hollins

defendants cite Tufts v. Newmar Corp., 53 F.Supp.2d 1171 (D.Kan.
9

The Hollins defendants contend, in their initial brief but not in their
reply brief, that plaintiff does not allege the violation of a duty to
disclose a material fact. We reject this argument. The Hollins defendants
had a duty to file truthful affidavits in support of their applications for
default judgment and to proceed truthfully in the enforcement of a consumer
transaction.

11

1999)

for

the

“willful”
from

a

proposition

violation

third

when

party,

in

that

this

cannot

be

merely

they

they

relied

upon

case

the

DMDC.

liable

for

a

information

Unlike

Tufts,

however, there are facts alleged in the complaint which provided
the Hollins defendants plausible grounds to question the DMDC
information

and

the

care

taken

to

investigate

plaintiff’s

military status.

This is sufficient at the pleading stage to

plausibly

a

allege

willful

deceptive

act

and

practice

in

acts

or

practices

in

violation of the KCPA.
2. Unconscionable acts
The

KCPA

prohibits

unconscionable

connection with a consumer transaction.

K.S.A. 50-627(a).

This

is a question for the court which should consider such factors
of which the supplier knew or had reason to know, such as, but
not limited to:

whether the supplier took advantage of the

inability of the consumer to protect his interests because of a
physical
understand

infirmity,
or

similar

ignorance,
factor;

illiteracy
whether

the

or
price

inability

to

charged

was

grossly excessive; whether the consumer received a benefit from
the transaction; whether the consumer was likely able to make
full payment; whether the transaction was excessively one-sided;
whether a misleading statement of opinion was made upon which
the consumer was likely to rely; and whether implied warranties
were excluded or modified.

K.S.A. 50-627(b).
12

The court finds that the misconduct alleged by plaintiff
does not sink to the level of an unconscionable act or practice.
It

is

not

interests

alleged
because

understanding.

that
of

plaintiff

some

was

infirmity

unable
or

to

protect

impediment

to

her
her

Plaintiff was able to speak over the phone with

the Hollins defendants prior to the entry of default judgment
regarding

the

debt

collection

litigation.

She

contacted

an

attorney to represent her after the entry of default judgment.
And, she was able to set aside the default judgments that were
granted

against

her.

The

court

finds

that

cases

alleged improper service of process are analogous.
cases,

default

judgment

was

dependent

upon

involving
In those

the

false

representation to the court that proper service of process had
occurred.

Here, the entries of default judgment were dependent

upon the allegedly false representation that plaintiff was not
on active military duty and that a careful investigation had
been

made

default
service,
that

of

plaintiff’s

judgments
courts

service

were

have

was

military

obtained

found

properly

that

status.

on
the

obtained

the

In
basis

cases
of

where

improper

incorrect

representation

did

amount

not

to

an

unconscionable act which violated federal or state law.
One such case is Briscoe v. Cohen, McNeile & Pappas, P.C.,
2014 WL 4954600 (D.Kan. 10/1/2014).

In Briscoe, it was alleged

that the defendant law firm/debt collector applied for default
13

judgment on the basis of an incorrect representation that proper
service had been effected, when there was evidence that the
defendant should have known that service had been attempted at
the wrong address.

After surveying several cases, including

another case from this district (Dillon v. Riffel-Kuhlmann, 574
F.Supp.2d

1221

(D.Kan.

2008)),

Judge

Crabtree

concluded

that

this conduct was not unconscionable for the purposes of the
Federal
1692f,

Debt
or

Collection

the

KCPA.

Practices
We

reach

Act
the

(FDCPA),
same

15

result

U.S.C.

here

§

where

plaintiff contends that the Hollins defendants represented that
plaintiff was not on active military duty when there was reason
to believe otherwise.

See also, Thurow v. Professional Finance

Co.,

2864936

Inc.,

observes

2017

it

ineffective

WL

is

aware

service

of

*5-6

no

amounts

(D.Colo.

legal

to

a

7/5/2017)(court

authority

deceptive

holding

or

that

unconscionable

debt collection practice in violation of the FDCPA); but see
Owings

v.

Hunt

9/3/2010)(false

&

Henriques,

representation

2010
that

WL

3489342

debtor

*5-6

was

not

(S.D.Cal.
in

the

military service can form the basis for a FDCPA violation).10
Plaintiff contends that her allegations are analogous to
those in Via Christi Regional Medical Center, Inc. v. Reed, 314
P.3d 852, 869 (Kan. 2013) where the court held that there was a

10

The court in Owings remarked (at *6) that the defendants did not argue that
the declaration was not false, misleading or unfair for the purposes of the
FDCPA.

14

fact issue as to whether a hospital, with superior bargaining
power over a former patient, engaged in unconscionable conduct
in violation of the KCPA when it attempted to enforce a lien
based

upon

a

charges.
however.

bill

This

which

case

contained

is

overcharges

distinguishable

and

from

duplicate

Via

Christi,

The falsehoods alleged in this case are much more

easily understood, disputed and resolved than those involving
the hospital billing practices in Via Christi which allegedly
were “so confusing as to be intentionally misleading.”

314 P.3d

at 523.
C. Count Three – Fair Debt
(“FDCPA”) 15 U.S.C. § 1692 et seq.

Collection

Practices

Act

In Count Three of the first amended complaint, plaintiff
alleges

that

the

Hollins

sections of the FDCPA:
and § 1692f.11
claiming

that

defendants

violated

the

§ 1692e(2)(a); § 1692e(5);

following

§ 1692e(10);

It appears that plaintiff is also generally
the

Hollins

defendants

have

used

a

“false,

deceptive or misleading representation or means in connection
with

the

sentence

collection”
of

§

of

1692e.

a

debt,

as

Plaintiff’s

prohibited
response

in

to

the

the

first

Hollins

defendants’ motion to dismiss appears to limit plaintiff’s claim
to

the

defendants’

alleged

failure

to

properly

investigate

plaintiff’s military status before submitting a false affidavit
11

Plaintiff does not name the City of Topeka or St. Francis as defendants in
Count Three.

15

to secure a default judgment.

Doc. No. 38, p. 17.

The FDCPA,

like the KCPA, should be liberally construed in favor of the
Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir.

consumer.
2002).
The

Hollins

defendants

argue

in

general

that

the

court

should not recognize a cause of action under the FDCPA for what
also may be a cause of action under the SCRA.
9.

We reject this contention.

Doc. No. 50, p.

“Redundancies across statutes

are not unusual events in drafting, and so long as there is no
‘positive repugnancy’ between two laws, a court must give effect
to both.”

Connecticut National Bank v. Germain, 503 U.S. 249,

253 (1992).
1. § 1692e(2)(a)
This section prohibits a debt collector from making a false
representation of the character, amount or legal status of any
debt.

The

plausibly

court

does

describe

not

such

believe

a

false

plaintiff’s

allegations

representation

by

the

defendants.
2. § 1692e(5)
This

section

prohibits

a

debt

collector

from

making

a

threat to take any action that cannot legally be taken or that
is

not

intended

to

be

taken.

The

court

does

not

plaintiff’s allegations plausibly describe a threat.
alleges

that

filing

a

motion

for

16

default

judgment

believe

Plaintiff
upon

an

allegedly false affidavit describing a “careful investigation”
of plaintiff’s military status is a threat to take action that
cannot legally be taken.

A “threat” under this section of the

FDCPA has been interpreted to be language that legal action is
“authorized,

likely

and

imminent.”

Bentley

v.

Collection Bureau, 6 F.3d 60, 62 (2nd Cir. 1993).

Great

Lakes

The motion for

default judgment in this case is a legal action itself, and is
not a statement that legal action is authorized, likely and
imminent.
1215,

See Kalebaugh v. Berman & Rabin, P.A., 43 F.Supp.3d

1228-29

(D.Kan.

Associates,

LLC,

Delawder

Platinum

v.

2014

2014);
WL

Bunce

5849252

Financial

v.
*5

services

Portfolio
(D.Kan.
Corp.,

Recovery

11/12/2014);
443

F.Supp.2d

942, 948 (S.D.Ohio 2005).
This interpretation of § 1692e(5) has been characterized as
the minority view.

E.g., Bradshaw v. Hilco Receivables, LLC,

765 F.Supp.2d 719, 730 (D.Md. 2011).
significant, however.

The split among courts is

See, e.g., Vanhuss v. Kohn Law Firm S.C.,

127 F.Supp.3d 980, 987-88 (W.D.Wis. 2015)(reviewing cases).
court

chooses

to

follow

the

Kansas

precedent

here.

The

It

consistent with the unambiguous language of the statute.

is
We

also note that this approach in this case does not bar plaintiff
from proceeding with a FDCPA claim under § 1692e(10) or the
general

proscription

against

false,

deceptive,

or

misleading

misrepresentations contained in the first sentence of § 1692e.
17

3. § 1692e(10)
This section prohibits a debt collector from using a false
representation

or

collect any debt.
regards

to

deceptive

means

to

collect

or

attempt

to

The court finds for the reasons discussed in

plaintiff’s

claim

under

the

KCPA,

K.S.A.

50-

626(2)&(3), that plaintiff has stated a claim for relief against
the

Hollins

1692e(10).

defendants

under

the

similar

provisions

of

§

See Toohey v. Portfolio Recovery Associates, LLC,

2016 WL 4473016 *9 (S.D.N.Y. 8/22/2016)(recognizing claim under
§

1692e

where

deceptive
judgment).

and

plaintiff

alleged

misleading

debt

affidavit

collector
in

filed

support

false,

of

default

The court acknowledges that this result differs from

the result in Briscoe.

In Briscoe, the court emphasized that

the plaintiff did not allege that the defendant actually knew
that

service

had

not

certified otherwise.
Hollins

defendants

plaintiff’s

been

accomplished

when

the

defendant

Here, plaintiff makes allegations that the
certified

military

service

that
was

a

careful

made

knowing or reckless misrepresentation.

and

investigation
that

this

was

of
a

The court believes this

is a significant distinction.12
The Hollins defendants further argue in a footnote to their
opening

brief

that

statements

made

12

to

the

court

and

not

to

The court further notes that most of the FDCPA cases discussed in support
of the result in Briscoe do not involve § 1692e claims and that the court
remarked (at *9) that the plaintiff had not supplied the court with contrary
authority in support of the plaintiff’s FDCPA claims.

18

plaintiff are not actionable under § 1692e.
n.9.

Doc. No. 27, p.19

Plaintiff cites a footnote in the Briscoe decision as

authority.

That

footnote,

in

turn,

alludes

to

O’Rourke

v.

Palisade Acquisition XVI, LLC, 635 F.3d 938 (7th Cir. 2011) but
only remarks that it would provide additional authority to deny
the § 1692e claim in Briscoe if the Tenth Circuit were to adopt
the holding.

To this court’s knowledge, the Tenth Circuit has

not expressly adopted the O’Rourke holding.

Moreover, the Tenth

Circuit has observed that the FDCPA applies to the litigating
activities of lawyers which may include (as other courts have
held) the service of a complaint upon a debtor to facilitate
debt

collection

documents.13

efforts

or

statements

in

written

discovery

James v. Wadas, 724 F.3d 1312, 1316 (10th Cir.

2013).
4. § 1692f
The court shall follow the reasoning and case authority
discussed in the court’s holding as to the unconscionable acts
provisions of the KCPA and find that plaintiff has not stated a
cause of action for the violation of § 1692f.
that

the

examples

of

“unfair

or

The court notes

unconscionable”

conduct

set

forth in § 1692f are not the same as the examples described in
the KCPA, K.S.A. 50-627.

The court further acknowledges that

13

The court in Toohey, 2016 WL 4473016 at *8 n.11 noted that the Eighth and
Eleventh Circuits have not followed O’Rourke. See also, Kaymark v. Bank of
America, N.A., 783 F.3d 168, 177 (3rd Cir. 2015)(“communication cannot be
uniquely exempted from the FDCPA because it is a formal pleading”).

19

the

examples

of

“unfair

nonexclusive list.

or

unconscionable”

conduct

are

a

But, the court does not read plaintiff’s

allegations as falling within the examples listed in the federal
statute or as properly characterized as unfair or unconscionable
for the purposes of that statute.
Moreover,

the

court

has

already

held

that

plaintiff’s

allegations state a plausible claim under § 1692e.

Several

courts have held that a viable claim under § 1692f must allege
conduct that is not addressed by other provisions of the FDCPA
if it the alleged misconduct is not within the listed provisions
of § 1692f. E.g., Baye v. Midland Credit Management, Inc., 2017
WL 3425438 *5 (E.D.La. 8/9/2017); Winberry v. United Collection
Bureau, Inc., 697 F.Supp.2d 1279, 1292-93 (M.D.Ala. 2010); Baker
v. Allstate Fin. Servs., Inc., 554 F.Supp.2d 945, 953 (D.Minn.
2008); Foti v. NCO Financial Systems, Inc., 424 F.Supp.2d 643,
667 (S.D.N.Y. 2006).
D. Count Four - wrongful garnishment
In Count Four of the first amended complaint, plaintiff
alleges that defendant City of Topeka and the Hollins defendants
instituted garnishment proceedings against plaintiff without a
good-faith belief that the judgment upon which those proceedings

20

were based was valid.14

Plaintiff claims that the defendants are

liable for wrongful garnishment.
The Hollins defendants and the defendant City of Topeka
contend that the wrongful garnishment claim should be dismissed.
In its brief in support of its motion to dismiss, the defendant
City of Topeka cites the following provisions in the limited
actions chapter of the Kansas statutes:
Whenever
a
party
has
commenced
postjudgment
proceedings for the enforcement of a judgment, and
such judgment is subsequently set aside, reversed on
appeal or otherwise nullified, such party shall not be
liable for damages as a result of such postjudgment
proceedings, unless it can be proven that the judgment
upon
which
such
proceedings
were
based
was
fraudulently obtained.
K.S.A. 61-3302(e).
in

their

reply

The Hollins defendants cite these provisions

brief.

Plaintiff

has

not

responded

to

this

argument in her response brief to the City of Topeka’s motion to
dismiss.
response

Nor has she asked for leave to make a surreply in
to

the

Hollins

defendants’

citation

to

K.S.A.

61-

3302(e) in their reply brief.
It appears to the court that K.S.A. 61-3302(e) applies to
the facts alleged in this case and bars plaintiff’s claim for
damages for wrongful garnishment.

14

The judgment upon which the garnishment order was issued was later found to
be void because of improper service of process.

21

E. Count Six - common law conversion
Plaintiff

makes

a

common

law

conversion

claim

against

defendants City of Topeka and the Hollins defendants in Count
Six

of

the

first

amended

complaint.

The

argumentation

is

similar to that raised against the wrongful garnishment claim.
The

court

shall

make

the

same

holding

that

plaintiff’s

conversion claim is barred under the provisions of K.S.A. 613302(e).
F.

Count Seven - invasion of privacy

In Count Seven plaintiff alleges a claim for “invasion of
privacy/intrusion

upon

seclusion.”

Plaintiff

alleges

quite

generally that “[d]efendants intruded, physically or otherwise,
upon Plaintiff’s solitude, seclusion, and/or private affairs or
concerns.”

Doc. No. 18, ¶ 149.

Defendants argue that plaintiff

has not alleged facts to support such a claim and the court
agrees.
In Moore v. R.Z. Sims Chevrolet-Subaru, Inc., 738 P.2d 852,
856-57 (Kan. 1987), the Kansas Supreme Court stated that to
prevail upon the claim plaintiff is making, “it is necessary to
establish two factors:
intentional

interference

[f]irst, something in the nature of an
in

the

solitude

or

seclusion

of

a

person’s physical being, or prying into his private affairs or
concerns,

and

second,

that

the

offensive to a reasonable person.”
22

intrusion

would

be

highly

See also Hutchison v. United

States, 2017 WL 2264447 *10 (D.Kan. 5/23/2017)(applying factors
stated in Moore).
As opposed to prying too much, here the crux of the facts
alleged by plaintiff is that the Hollins defendants did not do
enough to investigate plaintiff’s military status and changes of
name

or

address

before

proceeding

to

ask

a

state

default judgment in two debt collection actions.

court

for

The complaint

alleges very little contact between plaintiff and defendants.
These

allegations

do

not

describe

a

plausible

claim

that

plaintiff’s private affairs have been intruded upon in a highly
offensive manner.

Nor do the conclusory factual claims made in

¶ 149 and other paragraphs of Count Seven adequately allege an
invasion of privacy claim.
G. Count Eight - Outrage
In Count Eight of the first amended complaint, plaintiff
asserts a claim of outrage against all defendants.

The court

concurs with defendants that the facts alleged by plaintiff do
not describe extreme and outrageous conduct.

“Conduct is not

extreme and outrageous unless a civilized society would regard
it as exceeding the bounds of decency or utterly intolerable.”
Caputo v. Professional Recovery Services, Inc., 261 F.Supp.2d
1249, 1265 (D.Kan. 2003)(discussing the elements of an outrage
claim).

Here, plaintiff alleges that there was a knowing or

recklessly false declaration that upon careful investigation it
23

was determined that plaintiff was not on active military duty.
It is further alleged that the false declaration was made in
support of an application for a default judgment in two debt
collection cases.

This does not demonstrate a plausible claim

of conduct which exceeds the bounds of decency or is utterly
intolerable.

See Nooruddin v. Comerica Inc., 2011 WL 5588806

(D.Kan. 11/16/2011)(false overdraft charges made without notice
or

explanation

misconduct);

do

not

Fletcher

v.

amount

to

extreme

Wesley

Medical

and

Center,

outrageous
585

F.Supp.

1260, 1262 (D.Kan. 1984)(firing an employee for a false reason
does not give rise to an outrage claim); In re Oliver, 2012 WL
1252955 *3-4 (Bankr.D.Kan. 4/13/2012)(numerous failures alleged
by mortgagor against mortgagee including misapplication of funds
and filing false pleadings with the court, do not amount to
outrageous conduct); Moore v. State Bank of Burden, 729 P.2d
1205,

1211

(Kan.

1986)(bank’s

erroneous

setoff

of

social

security funds against a legitimate debt owed to the bank is not
extreme or outrageous); Neufeldt v. L.R.Foy Construction Co.,
Inc., 693 P.2d 1194, 1198 (Kan. 1985)(false statement concerning
the prospect of arrest made to debtor’s wife regarding a bad
check does not support an outrage claim); W-V Enterprises, Inc.
v. Federal Sav. & Loan Ins. Corp., 673 P.2d 1112, 1122 (Kan.
1983)(fraudulent

and

deceptive

statements

made

by

financial

institution to contractor were not sufficient to support outrage
24

claim);

Kape

3655893

*12

Roofing

&

(Kan.App.

Gutters,

Inc.

v.

7/8/2016)(filing

a

Chebultz,

WL

affidavit

false

2016

to

support a mechanic’s lien, causing significant emotional upset
of which the defendant had no direct knowledge, does not give
rise to a claim of outrage).
IV. Defendants City of Topeka and St. Francis’
dismiss shall be granted in part and denied in part.

motions

to

A. Count Five – negligent supervision
Plaintiff

asserts

a

negligent

supervision

claim

against

defendants City of Topeka and St. Francis in Count Five of the
first amended complaint.

Plaintiff alleges that the City and

St. Francis failed to properly supervise the Hollins defendants
in

the

debt

collection

litigation.

“Negligent

supervision

includes not only the duty to supervise but also includes the
duty to control persons with whom the defendant has a special
relationship including the defendant’s employees or persons with
dangerous propensities.”
Co.,

961

referred

P.2d
to

1213,

Marquis v. State Farm Fire and Cas.

1223

Restatement

(Kan.

(Second)

1998).
of

Kansas

Torts

discussing the tort of negligent supervision.

§

414

have

(1965)

in

See Hauptman v.

WMC, Inc., 224 P.3d 1175, 1188 (Kan.App. 2010).
reads:

courts

Section 414

“One who entrusts work to an independent contractor, but

who retains the control of any part of the work, is subject to
liability

for

physical

harm

to

25

others

for

whose

safety

the

employer

owes

a

duty

to

exercise

reasonable

care,

which

is

caused by his failure to exercise his control with reasonable
care.”
The court finds that plaintiff has not alleged a plausible
claim of negligent supervision.
Topeka

and

St.

Francis,

As argued by defendants City of

plaintiff

has

not

alleged

facts

describing a special relationship from which a duty of control
and a duty of care may be inferred.
an employer/employee relationship.

Plaintiff does not allege
Nor does plaintiff allege

that defendants City of Topeka and St. Francis retained the
right to exercise detailed control over the work of the Hollins
defendants by virtue of contract.

Moreover, the Restatement

section speaks to a duty to exercise reasonable care to protect
against physical harm to others.

Cases from this district have

also emphasized this requirement.

See Chen v. Dillard Store

Services,

107933

Inc.,

1/8/2016)(dismissing

2016

WL

negligent

supervision

*11-12
claim

(D.Kan.
where

no

physical injury is alleged); Patton v. Entercom Kansas City,
LLC,

2014

WL

2557908

*10-12

(D.Kan.

6/6/2014)(same).

No

physical harm, only emotional injury, is alleged by plaintiff.
Thus, facts are not asserted which describe a claim of negligent
supervision.15

15

The defendant City of Topeka also alleges that plaintiff has not
sufficiently pleaded compliance with the notice requirements of K.S.A. 12105b(d) for bringing a tort claim against a municipality because plaintiff

26

B. Liability as to the other counts
The court has already given reasons to dismiss the common
law claims asserted by plaintiff in Counts Four, Six, Seven and
Eight, as well as certain claims under the KCPA and the FDCPA.
See

section

III

of

this

order.

The

issue

becomes

whether

plaintiff has sufficiently alleged grounds for liability upon
the statutory claims which the court has permitted to go forward
as to the Hollins defendants.
One of plaintiff’s theories is vicarious liability.

The

Supreme Court has stated that the Court assumes “when Congress
creates a tort action, it legislates against a legal background
of

ordinary

consequently
rules.”
shall

tort-related
intends

its

vicarious

liability

legislation

to

rules

incorporate

Meyer v. Holley, 537 U.S. 280, 285 (2003).

attempt

to

apply

those

rules

to

plaintiff’s

and
those

The court
statutory

claims.
As

mentioned

earlier,

plaintiff

alleges

in

the

first

amended complaint that the Hollins defendants were the agents of
defendants St. Francis and City of Topeka.
employee or an independent contractor.

An agent may be an

See McCarthy v. Recordex

Service, Inc., 80 F.3d 842, 853 (3rd Cir. 1996); First Nat. Bank
and Trust Co. v. Sidwell Corp., 678 P.2d 118, 124 (Kan. 1984).
Because

plaintiff

does

not

allege

an

employer/employee

has chosen to do so in footnote 1 of the first amended complaint.
finds that this is satisfactory, albeit not recommended.

27

The court

relationship or facts supporting such an allegation, the court
shall focus upon whether plaintiff has alleged facts which would
support a plausible claim of vicarious liability of a principal
for the acts of an independent contractor/attorney.
“Under Kansas law, the relation between an attorney and his
client has been held to be one of agency to which the general
rules of agency apply.”

Brinkley v. Farmers Elevator Mut. Ins.

Co., 485 F.2d 1283, 1286 (10th Cir. 1973) (citing Pearcy v. First
Nat. Bank in Wichita, 167 Kan. 696, 208 P.2d 217 (1949)).
principal

is

subject

to

liability

for

its

agent’s

“A

tortious

conduct only if the conduct ‘is within the scope of the agent’s
actual

authority

or

ratified

by

the

principal.’”

1-800

Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1251 (10th Cir.
2013)(quoting Restatement (Third) of Agency § 7.04 (2006)).

“An

agent acts with actual authority if it ‘reasonably believes, in
accordance

with

the

principal’s

manifestations

to

that the principal wishes the agent so to act.’”
Restatement (Third) of Agency § 2.01).

the

agent,

Id. (quoting

This requires proof not

only that an agent could reasonably believe that he had actual
authority

from

subjectively
principal.
cmt. e).

the

believed

principal
he

had

but

also

actual

that

authority

the
from

agent
the

Id. (citing Restatement (Third) of Agency § 2.02
Plaintiff does not allege facts in the complaint which

plausibly indicate that plaintiff reasonably believed defendant
28

City of Topeka or defendant St. Francis gave actual authority to
the Hollins defendants to make a false statement in support of
an application for default judgment.
such

an

argument

in

response

to

Plaintiff does not make
the

motion

to

dismiss.16

Instead, plaintiff argues ratification.
Ratification “is the affirmance of a prior act done by
another, whereby the act is given effect as if done by an agent
acting with actual authority.”
4.01(1).

Restatement (Third) of Agency, §

“A person ratifies an act by (a) manifesting assent

that the act shall affect the person’s legal relations, or (b)
conduct that justifies a reasonable assumption that the person
so consents.”

Id. at § 4.01(2).

“A person is not bound by a

ratification made without knowledge of material facts involved
in the original act when the person was unaware of such lack of
knowledge.”
agent's
repudiate

Id. at § 4.06.

unauthorized
the

act.

act,

”Upon acquiring knowledge of the
the

Otherwise,

ratified and affirmed it.”

it

principal
will

be

should
presumed

promptly
he

has

Adrian v. Elmer, 284 P.2d 599, 603

16

Nor does case law appear to support such a claim upon the type of facts
alleged in the complaint.
See, e.g., Computer Aid, Inc. v. Hewlett-Packard
Co., 56 F.Supp.2d 526, 538-39 (E.D.Pa. 1999)(client not responsible for
alleged defamatory statements of attorneys unless client authorized or
ratified the statements); Williams v. Burns, 463 F.Supp. 1278, 1284-86
(D.Colo. 1979)(client is not responsible for defamatory statement made by
non-house counsel retained for advice on a transaction); Yale New Haven Hosp.
v. Orlins, 1992 WL 110707 *1 (Sup.Ct.Conn. 5/11/1992)(client not liable for
FDCPA violations alleged against client’s attorneys); Chisler v. Randall, 259
P. 687, 689-90 (Kan. 1927)(client not responsible for unauthorized defamatory
communication made by his attorney).

29

(Kan.

1955);

see

also

BioCore,

Inc.

v.

Khosrowshani,

41

F.Supp.2d 1214, 1231 (D.Kan. 1999).
Here,
plaintiff

the
may

facts
prove

alleged
that

indicate

defendants

it

City

is

plausible

of

Topeka

that

and

St.

Francis were aware the Hollins defendants made false statements
in applications for default judgment on their behalf and did not
promptly repudiate these false statements.
shall

not

grant

those

parts

of

the

Therefore, the court

motions

to

dismiss

of

defendants City of Topeka and St. Francis which seek to dismiss
the statutory claims which the court did not dismiss against the
Hollins defendants.
V. Summary
The motion to dismiss of the Hollins defendants (Doc. No.
26) and the motions to dismiss of defendants St. Francis and the
City of Topeka (Doc. Nos. 29 & 33) are granted in part and
denied in part.

The court shall dismiss Counts Four through

Count Eight of the first amended complaint.
also

dismiss

plaintiff’s

claims

of

unfair

The court shall
and

unconscionable

acts under the KCPA and the FDCPA in Counts Two and Three.
IT IS SO ORDERED.
Dated this 13th day of September, 2017, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

30