Stire v. Watson et al
Filing
40
ORDER AND REASONS defendants' motion 28 to dismiss is granted in part and denied in part. Stire's federal claims against the defendants are dismissed with prejudice, but the Court maintains supplemental jurisdiction over Stire's state law claims. Further, First Financial's motion 30 is granted.. Signed by Chief Judge Sarah S. Vance on 7/30/13. (jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TIFFANY STIRE
CIVIL ACTION
VERSUS
NO: 12-2982
JASON WATSON, ET AL.
SECTION: “R”
ORDER AND REASONS
Defendants Marina Cove Condominium Association ("Marina
Cove") and Debbie Rutherford move to dismiss plaintiff's
complaint.1 Defendant First Financial Insurance Company moves to
join the other defendants' motion to dismiss.2 For the following
reasons, defendants' motion to dismiss is granted in part and
denied in part. Stire's federal claims against the defendants are
dismissed, but the Court maintains supplemental jurisdiction over
Stire's state law claims. Further, First Financial's motion is
granted.
I.
BACKGROUND
Tiffany Stire and her husband owned a condominium at Marina
Cove Condominiums in Slidell, Louisiana.3 Stire was behind on her
condominium fees, and Debbie Rutherford, Marina Cove's president,
informed Stire that she could not use the common area facilities
1
R. Doc. 28.
2
R. Doc. 30.
3
R. Doc. 1 at 3.
such as the pool.4 Stire apparently ignored these restrictions,
and Rutherford called the St. Tammany Parish Sheriff's office.5
Deputy Sheriff Jason Watson came to the scene and arrested
Stire.6 Stire alleges that Watson pushed her down the stairs and
caused her various injuries.7
Stire attempts to state five claims. First, she sues Marina
Cove and Rutherford for conspiring with defendants Deputy Sheriff
Watson and Sheriff Jack Strain to deprive her of her
constitutional rights under 42 U.S.C. § 1983. Second, she claims
that Rutherford and Marina Cove conspired with Watson and Strain
to collect fees in violation of state and federal law. Third, she
sues Watson and Strain under 42 U.S.C § 1983 for executing an
unconstitutional arrest. Fourth, she sues Watson and Strain for
other constitutional violations under 42 U.S.C. § 1983. Fifth,
she sues Rutherford and Marina Cove for violating the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692-1692p.8 Peppered
throughout these claims are various mentions of possible state
law actions for assault, battery, negligence, and false arrest
against all defendants.
4
Id. at 4.
5
Id.
6
Id. at 5.
7
Id.
8
Id. at 16.
2
Defendants Rutherford and Marina Cove move to dismiss
Stire's federal claims against them for failure to state a claim,
and dismiss Stire's state law claims against them for lack of
subject matter jurisdiction.9 Marina Cove's insurer moves to join
the other defendants' motion to dismiss.10
II.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts “to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. A court
must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Gines v. D.R.
Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007)). But the Court is not bound to accept as true legal
conclusions couched as factual allegations. Iqbal, 556 U.S. at
678.
A legally sufficient complaint must establish more than a
“sheer possibility” that plaintiff's claim is true. Id. It need
9
10
R. Doc. 28.
R. Doc. 30.
3
not contain detailed factual allegations, but it must go beyond
labels, legal conclusions, or formulaic recitations of the
elements of a cause of action. Id. In other words, the face of
the complaint must contain enough factual matter to raise a
reasonable expectation that discovery will reveal evidence of
each element of the plaintiff's claim. Lormand v. U.S. Unwired,
Inc., 565 F.3d 228, 257 (5th Cir. 2009). If there are
insufficient factual allegations to raise a right to relief above
the speculative level, or if it is apparent from the face of the
complaint that there is an insuperable bar to relief, the claim
must be dismissed. Twombly, 550 U.S. at 555; Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th
Cir. 2007).
III. DISCUSSION
Stire brings federal claims against Rutherford and Marina
Cove for violations of § 1983 and for violations of the Fair Debt
Collection Practices Act. Stire does not adequately plead either
of these claims.
A.
Stire Fails To State a § 1983 Claim
Title 42, United States Code, Section 1983 provides a cause
of action for plaintiffs whose federal rights are violated under
the color of state law. 42 U.S.C. § 1983; Doe v. Dallas Indep.
Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). To establish
liability in a Section 1983 action, the plaintiff must prove “(1)
4
a deprivation of a right secured by federal law (2) that occurred
under color of state law, and (3) was caused by a state actor.”
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004).
Stire does not dispute that Rutherford and Marina Cove are
private actors. Nevertheless, a private citizen may be held
liable under Section 1983 when "the challenged conduct [is]
'fairly attributable to the State.'" Glotfelty v. Karas, No.
12–30532, 2013 WL 600253, at *3 (5th Cir. Feb. 15, 2013) (quoting
Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999)). A
plaintiff must show:
(1) that the deprivation was caused by the exercise of
some right or privilege created by the state or by a rule
of conduct imposed by the state, or by a person for whom
the state is responsible, and (2) that the party charged
with the deprivation may fairly be said to be a state
actor.
Id. "A plaintiff can make such a showing by demonstrating that
the private citizen was a willful participant in joint activity
with the State or its agents," id., or by demonstrating “that the
citizen conspired with or acted in concert with state actors.”
Id. at *4 ((quoting Mylett v. Jeane, 879 F.2d 1272, 1275 (5th
Cir. 1989)) (internal quotation marks omitted); see also Tebo v.
Tebo, 550 F.3d 492, 496 (5th Cir. 2008).
Stire's Section 1983 claims allege that Rutherford and
Marina Cove "conspired and jointly acted" with Deputy Watson and
5
Sheriff Strain to collect fees in violation of federal law11 and
violate her Fifth and Fourteenth Amendment rights.12
To state that Marina Cove and Rutherford willfully
participated or conspired with the State, Stire “must allege: (1)
an agreement between the private and public defendants to commit
an illegal act and (2) a deprivation of constitutional rights.”
Glotfelty, No. 12–30532, 2013 WL 600253, at *4 (quoting Priester
v. Lowndes Cnty., 354 F.3d 414, 420 (5th Cir. 2004)) (internal
quotation marks omitted). Stire must “allege specific facts to
show an agreement.” Tebo, 550 F.3d at 496; Priester, 354 F.3d at
420. The Fifth Circuit has expanded on the state actor doctrine
in the context of unlawful arrests. Specifically, Stire must
allege “the existence of a ‘preconceived plan’ for the
authorities to arrest the person without investigation, ‘merely
because he was designated for arrest by the private party.’"
Glotfelty, 2013 WL 600253, at *4 (quoting Sims v. Jefferson Downs
Racing Ass'n, Inc., 778 F.2d 1068, 1079 (5th Cir. 1985)).
Stire fails to allege the requisite agreement between Marina
Cove, Rutherford, and Watson or Strain. Nor does Stire allege
that there was a “preconceived plan” for Watson to arrest Stire,
"merely because [Rutherford] designated [Stire] for arrest."
Glotfelty, 2013 WL 600253, at *5. She alleges that Rutherford
11
R. Doc. 1 at 9-10.
12
Id. at 9, 11.
6
"contacted the St. Tammany Parish Sheriff's office . . . and made
false claims" about Stire,13 "requested the illegal arrest,"14 and
that Rutherford "personally directed" the arrest and "supervised
with glee."15 Stire also asserts that the defendants "jointly
conspired to arrest petitioner,"16 "acted together with
deliberate indifference and callous disregard of Plaintiff's
rights,"17 and "conspired and jointly acted to falsely arrest
[Stire] to collect condominium fees."18 These assertions are
legal conclusions unsupported by facts and do not plausibly
suggest an agreement between the defendants to violate Stire's
rights.
In fact, Stire alleges that Rutherford "made false claims"
to Watson that Stire was trespassing and disturbing the peace,
and "procured" him to arrest Stire.19 That Rutherford allegedly
lied to Watson, is inconsistent with an agreement between
defendants to deprive Stire of her rights through an unlawful
arrest or to collect a debt in violation of federal law. See
13
Id. at 4.
14
Id. at 6.
15
Id. at 4.
16
Id. at 7.
17
Id. at 9.
18
Id. at 9-10.
19
Id. at 4.
7
Priester, 354 F.3d at 420 (holding that plaintiff failed to state
a Section 1983 conspiracy claim against private actor when the
complaint "does not allege an agreement" or allege "specific
facts to show an agreement").
Stire relies on Morris v. Dillard Department Stores, Inc.
for the proposition that a private actor can be found acting in
concert with state authorities if she is the sole source of
information on which a police officer relies for an arrest
without making an independent investigation. 277 F.3d 743, 748-49
(5th Cir. 2001). As explained in Singleton v. St. Charles Parish
Sheriff's Department, the test outlined in Morris "is designed to
determine if 'the police pursuant to a preconceived plan, would
arrest any person merely because he was designated for arrest by
the store." 306 F. App'x 195, 199 (5th Cir. 2009) (per curiam).
Stire makes no factual allegations suggesting that Watson
and Rutherford acted in accordance with a preconceived plan.
Indeed, Stire alleges that at the scene of the arrest "Watson
reacted to the remark about calling his supervisor, 'You
threatened my job, you resisted arrest.'"20 These facts suggest
that Watson was reacting to Stire's behavior when deciding to
arrest her for resisting arrest, based on his "first-hand" and
"independent observation." Id. Stire fails to allege essential
20
R. Doc. 1 at 5. This statement attributed to Watson also
contradicts Stire's allegation later in the complaint that she
was not informed of the grounds for her arrest. Id. at 10.
8
elements of her claims, and her allegations of conspiracy amount
to nothing more than naked assertions. See, e.g., Twombly, 550
U.S. at 556-57; Priester, 354 F.3d at 420. Accordingly, Stire
fails to advance a plausible claim that Rutherford or Marina Cove
acted under color of state law to sustain her Section 1983 claims
against them.
B.
Stire Fails To State a Claim Under the Fair Debt Collection
Practices Act
Congress enacted the Fair Debt Collection Practices Act
(“FDCPA”) “to eliminate abusive debt collection practices by debt
collectors, to ensure that those debt collectors who refrain from
using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect
consumers against debt collection abuses.” 15 U.S.C. § 1692(e);
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). The FDCPA
provides: “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; Gonzalez, 577 F.3d at
603. For the purposes of the FDCPA, the term “debt collector” is
defined as:
any person who uses any instrumentality of interstate
commerce or the mails in any business the principal
purpose of which is the collection of any debts, or
who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted
to be owed or due another.
15 U.S.C. § 1692a(6).
9
Stire alleges that Rutherford "directed and was the
procuring cause of the false charges being filed solely to
illegally collect a debt."21 She asserts that Rutherford "[gave]
false statements to have [Stire] arrested and maliciously
prosecuted."22 She alleges that Rutherford "sen[t] out demand
letters seeing [sic] to collect a debt on her employers [sic] law
firm letterhead to Plaintiff without having the debt collection
claims reviewed by an attorney, but sent the legal demand
herself, who is a paralegal, and not an attorney."23 Stire also
alleges that Rutherford "falsely threatened an injunction suit
and legal action."24
Importantly, Stire alleges that all the while, Rutherford
acted "as the President of the Marina Cove Condominium
Association"25 to "collect a debt to the Defendant Marina Cove
Condominium Association."26 Under § 1692a(6)(A), a "debt
collector does not include “any officer or employee of a creditor
who, in the name of the creditor, collect[s] debts for such
creditor.” Because Rutherford attempted to collect a debt owed to
21
R. Doc. 1 at 6.
22
Id. at 14.
23
Id.
24
Id.
25
Id.
26
Id. at 6.
10
Marina Cove in her capacity as its president, the provisions of
the FDCPA are not applicable. See HSBC Bank Nev., N.A. v.
Murungi, No. 10-1527, 2010 WL 3170736, at *4 (E.D. La. Aug. 11,
2010) (dismissing FDCPA claim with prejudice where bank attempted
to collect what was owed to it in its capacity as a creditor).
Nowhere in Count V of her complaint does Stire allege that
Rutherford or Marina Cove qualify as debt collectors under the
FDCPA.27 Nevertheless, the term "debt collector" includes any
creditor who, while collecting his own debts, "uses any name
other than his own which would indicate that a third person is
collecting or attempting to collect such debts." 15 U.S.C. §
1692a(6). Stire argues that Rutherford was a debt collector
because she used a name other than her own, "which would indicate
that a third person is collecting or attempting to collect such
debts." Id. She alleges that Rutherford "sent out demand letters
seeing [sic] to collect a debt on her employers [sic] law firm
letterhead to Plaintiff without having the debt collection claims
reviewed by an attorney, but sent the legal demand herself, who
is a paralegal, and not an attorney."28
This Court reviews "any potential deception in the letter[s]
under an unsophisticated or least sophisticated consumer
standard." McMurray v. ProCollect, Inc., 68 F.3d 665, 669 (5th
27
Id. at 13-14.
28
Id.
11
Cir. 2012). This standard of review "assume[s] that the
plaintiff-debtor is neither shrewd nor experienced in dealing
with creditors." Id. When construing a demand letter to determine
whether it violates the FDCPA by misleading a debtor to believe
that a lawyer is involved, a court “analyze[s] whether the letter
is misleading as a whole.” Gonzalez, 577 F.3d at 607.
Stire attached the relevant communications to her complaint.
The Court may therefore consider these communications on a motion
to dismiss.29 Further, to the extent that Stire's complaint does
allege that defendants are "debt collectors," when "an allegation
is contradicted by the contents of an exhibit attached to the
pleading, then indeed the exhibit and not the allegation
controls." United States ex rel. Riley v. St. Luke's Episcopal
Hosp., 355 F.3d 370, 377 (5th Cir. 2004).
29
R. Docs. 1-7, 1-9. In considering a motion to dismiss for
failure to state a claim, the Court typically must limit itself
to the contents of the pleadings, including their attachments.
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th
Cir. 2000). Uncontested documents referred to in the pleadings
may be considered by the Court without converting the motion to
one for summary judgment, even when the documents are not
physically attached to the complaint. See Great Plains Trust Co.
v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th Cir.
2002) (finding that the district court properly considered
documents not attached to the complaint in ruling on a Rule 12(c)
motion). The Court also may consider documents attached to a
motion to dismiss without converting it to a summary judgment
motion if the documents are referred to in the complaint and are
central to the plaintiff’s claim. Causey v. Sewell CadillacChevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citation
omitted). Here, Stire attaches the communications that are the
basis for her claims to her complaint.
12
Stire relies on two communications to argue that defendants
were indicating that a third person was collecting or attempting
to collect her debts. First, Stire relies on Rutherford's letter
revoking Stire's access to the pool.30 This letter was sent on
Marina Cove letterhead, and Rutherford signed the letter as
president of Marina Cove.31 Plainly, this letter may not be a
basis for Stire's claims as it does not indicate that a third
party is collecting Stire's debts.
Second, Stire relies on a series of emails between
Rutherford and Stire's husband, Shane McClanahan.32 Rutherford
works as a legal secretary at a law firm, and Stire argues that
Rutherford was attempting to indicate that her law firm was
collecting the debt because Rutherford sent these emails from her
work email.
There are multiple problems with Stire's argument. First,
the emails were sent to McClanahan, not Stire. McClanahan is not
a party to this suit. Second, Rutherford signed an email in the
chain as "President, MCCA," and each email noted that her
position at the firm is "Legal Assistant/Secretary."33 Third, it
30
R. Doc. 1-7 at 1.
31
Id.
32
R. Doc. 1-9.
33
R. Doc. 1-9 at 4.
13
was McClanahan, not Rutherford who initiated this email chain.34
On May 21, 2012, McClanahan emailed Rutherford informing her of
his intention to pay his debts and asking Rutherford to email him
a statement so that he could submit it with payment of his
debts.35 On May 22, 2012, Rutherford responded and asserted that
she "scheduled a meeting with an attorney to file an injunction"
to enforce the pool restrictions.36 Then, on May 29, 2012,
Rutherford emailed McClanahan the ledger sheet he requested and
signed the email as president of Marina Cove.37
Even under the deferential unsophisticated consumer
standard, it is not plausible that Rutherford was attempting to
indicate that her law firm was collecting the debt. Unlike a
formal demand letter sent on a law firm's letterhead and signed
by an attorney, Rutherford sent an email explicitly stating that
she was a legal secretary and acting in her capacity as Marina
Cove president. See, e.g., Taylor v. Perrin, Landry, deLaunay &
Durand, 103 F.3d 1232, 1236-37 (5th Cir. 1997) (finding that
creditor acted as a debt collector when it engaged an attorney to
draft and sign a demand letter on, or using the law firm's
letterhead). Further, it was McClanahan, not Rutherford who
34
Id. at 2.
35
Id.
36
Id. at 1.
37
Id. at 3.
14
initiated the email chain, and it was McClanahan who requested
Rutherford to inform him of his outstanding debt by email.
Finally, Rutherford explained in the email that she scheduled a
meeting with an attorney, which is further proof that an attorney
was not involved at the time of the email chain.
All of these factors preclude even the most unsophisticated
consumer from interpreting Rutherford's replies as invoking a
third party to collect a debt. Stire has not plausibly stated a
claim that defendants are "debt collectors."
C.
State Law Claims
Although Stire's federal claims against Marina Cove and
Rutherford must be dismissed, she also states various claims
against these defendants under state law.38 Because the Court has
original jurisdiction over the § 1983 claims, it may exercise
supplemental jurisdiction over the state law claims if the
“claims . . . are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy.”
28 U.S.C. § 1367(a). Usually, this means that each
separate claim “must derive from a common nucleus of operative
fact[s and be] such that [a plaintiff] would ordinarily be
expected to try them in one judicial proceeding.” United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). At this point
38
Further, Stire has stated federal claims against Watson
and Strain.
15
in the litigation, the Court finds that the state law claims
against the defendants arise out of the same common nucleus of
operative facts as Stire's claims under Section 1983.
Accordingly, the Court will exercise supplemental jurisdiction
over Stire's state law claims. However, the Court can revisit its
decision to exercise supplemental jurisdiction over these claims
if it subsequently dismisses Stire's other federal claims. 28
U.S.C. § 1367(c).
D.
First Financial's Motion To Join Defendants Motion To
Dismiss
As Marina Cove's insurer, First Financial's liability is
derived from any claims against Marina Cove under Louisiana's
Direct Action Statute. The Louisiana Direct Action Statute, La.
Rev. Stat. § 22:1269, “does not create an independent cause of
action against the insurer, it merely grants a procedural right
of action against the insurer where the plaintiff has a
substantive cause of action against the insured.” New England
Ins. Co. v. Barnett, 465 F. App'x 302, 309 (5th Cir. 2012).
Because First Financial's liability is coextensive with Marina
Cove's, this Court also dismisses plaintiff's federal claims
against First Financial. See Zeno v. ADM Mill. Co., No. 06-4326,
2008 WL 4974876, at *2 (E.D. La. Nov. 20, 2008); see also Frank
v. Shell Oil Co., 828 F. Supp. 2d 835, 859 (E.D. La. 2011)
(applying court’s ruling on insured’s motion to dismiss to the
16
liability insurer). Accordingly, First Financial's motion to join
Marina Cove's motion to dismiss is granted.
IV. CONCLUSION
For the above stated reasons, For the following reasons,
defendants' motion to dismiss is granted in part and denied in
part. Stire's federal claims against the defendants are dismissed
with prejudice, but the Court maintains supplemental jurisdiction
over Stire's state law claims. Further, First Financial's motion
is granted.39
New Orleans, Louisiana, this ______ day of July, 2013.
30th
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
39
R. Docs. 28, 30.
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?