Garland v. Orlans PC et al
Filing
50
ORDER Granting Defendants' Motion to Dismiss 7 , Denying Plaintiff's Motion to Strike 11 30 , Denying as Moot Plaintiff's Motion to Certify Class 31 , Awarding Costs to Plaintiff, and Dismissing Plaintiff's Cause of Action.. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FREDDIE GARLAND,
Individually and on behalf
of all others similarly situated,
Plaintiffs,
CASE NO. 18-11561
HON. DENISE PAGE HOOD
v.
ORLANS PC, LINDA ORLANS,
and ALISON ORLANS,
Defendants.
/
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [#7],
DENYING PLAINTIFF’S MOTIONS TO STRIKE [#11, #30],
DENYING AS MOOT PLAINTIFF’S MOTION TO
CERTIFY CLASS [#31], AWARDING COSTS TO
PLAINTIFF, AND DISMISSING
PLAINTIFF’S CAUSE OF ACTION
I.
INTRODUCTION
On May 17, 2018, Plaintiff filed this proposed class action lawsuit, alleging that
Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
(“FDCPA”), and the Regulation of Collection Practices Act, M.C.L. § 445.251 et seq.
(“RCPA”), when Defendant Orlans PC mailed one or more similar letters to Plaintiff
and others. On July 18, 2018, Defendants filed a Motion to Dismiss pursuant to Rules
12(b)(1) and 12(b)(6). ECF No. 7. Plaintiff then filed a Motion to Strike the Motion
to Dismiss. ECF No. 11. The Motion to Dismiss and the Motion to Strike the Motion
to Dismiss were fully briefed.1
On November 21, 2018, the Court entered an order holding the case in abeyance
pending the U.S. Supreme Court’s decision in Obduskey v. McCarthy & Holthus LLP,
No. 17-1307, 138 S.Ct. 2710 (June 28, 2018). On March 20, 2019, the U.S. Supreme
Court rendered its decision in Obduskey. See Obduskey v. McCarthy & Holthus LLP,
139 S.Ct. 1029 (2019) (hereinafter, “Obduskey”).
The Court then ordered
supplemental briefing regarding the Motion to Dismiss – expressly limited to the
effect of the Obduskey ruling on the case, and the parties filed supplemental briefs.
In addition, Plaintiff filed a Motion to Strike Defendants’ Supplemental Brief, ECF
No. 30, and the Motion to Strike Defendants’ Supplemental Brief has been fully
briefed.
The parties have since submitted numerous other filings:
A.
Plaintiff’s Citation of Supplemental Authority in Opposition to
Defendants’ Motion to Dismiss [ECF No. 39];
B.
Plaintiff’s Second Citation of Supplemental Authority in Opposition to
Defendants’ Motion to Dismiss [ECF No. 40];
1
Plaintiff also filed a Motion to Certify Class [ECF No. 31]. As the Court
grants Defendants’ Motion to Dismiss, the Motion to Certify Class is denied as
moot.
2
C.
Defendants’ Further Citation of New, Supplemental, Authority in
Support of Defendants’ Motion to Dismiss under Rules 12(b)(1) and
12(b)(6) [ECF No. 41];
D.
Defendants’ Citation of Additional New Supplemental Authority in
Support of Defendants’ Motion to Dismiss under Rules 12(b)(1) and
12(b)(6) [ECF No. 43]
E.
Plaintiff’s Third Citation of Supplemental Authority in Opposition to
Defendants’ Motion to Dismiss [ECF No. 44];
F.
Defendants’ Citation of New Sixth Circuit Authority in Support of
Defendants’ Motion to Dismiss under Rules 12(b)(1) and 12(b)(6) [ECF
No. 45]; and
G.
Plaintiff’s Second Supplemental Brief in Opposition to Defendants’
Motion to Dismiss. [ECF No. 49]
The Court has reviewed and considered each of those filings, though some
argument(s) and cases set forth in those documents are not expressly addressed in this
Order. For the reasons stated below, the Court grants Defendants’ Motion to Dismiss
with respect to the FDCPA claim, dismisses Plaintiff’s FDCPA claim with prejudice,
and dismisses Plaintiff’s RCPA claim without prejudice.
II.
BACKGROUND
Plaintiff alleges two fair debt statutory claims, one under the FDCPA and one
under the RCPA. Each claim is based on form letters sent to Plaintiff and other
3
putative class members on Orlans PC letterhead. Plaintiff’s letter from Orlans PC was
dated May 18, 2017, and the first page of it is attached as Exhibit A to the complaint.
Plaintiff’s principal claim is that Defendants send out foreclosure notices appearing
to be from attorneys (or susceptible to that interpretation) that are instead processed
by non-attorney staff and mailed without meaningful attorney review. Plaintiff and
the class seek only statutory damages. ECF No. 1 at ¶¶ 21, 24.
Defendants are Michigan’s second-largest foreclosure law firm (Orlans PC) and
its two principal owners and executives (Linda Orlans and Alison Orlans). ECF No.
1 at ¶¶ 13-14, 17-21, 23-27, 83-89. The complaint alleges an RCPA subclass of
homeowners who were sent foreclosure letters by Defendants since April 17, 2011:
All persons to whom Orlans PC caused to be sent any version of the
Orlans PC Foreclosure Letter in connection with mortgages conveyed for
residential real property located in Michigan, dated on or after April 17,
2011, which was not returned as undelivered by the U.S. Post Office,
through the date that the Court issues an order certifying any class
requiring notice in this matter, and through the date of entry of final
judgment as to any class for which notice is not required under Federal
Rule of Civil Procedure 23.
ECF No. 1 at ¶ 94 (emphasis added).
The complaint uses the descriptive term “Orlans PC Foreclosure Letter” to
categorize Plaintiff’s foreclosure letter from Orlans PC along with those sent to tens
of thousands of other homeowners. As listed in the complaint, these letters:
4
a.
[Were] on firm letterhead;
b.
Displayed Linda Orlans’ and Alison Orlans’ surname;
c.
Identified Orlans PC’s client as the creditor or servicing agent;
d.
Indicated that Orlans PC was a law firm retained to foreclose the
debtor’s mortgage;
e.
Did not disclaim that [they were] from an attorney;
f.
[Were] (with rare exception) unsigned by an individual Orlans PC
lawyer; and
g.
Contained the typographic text “Orlans Associates, P.C.” or “Orlans
Associates PC” or “Orlans PC” at the end of the letter in the signature
block.
ECF No. 1 at ¶ 41. See also Id. at ¶ 51 (emphasis added) (“The Garland Foreclosure
Letter is a form letter, in that it was generated based on a standard form letter used by
Orlans PC to initiate correspondence with homeowners whose mortgages Orlans PC
had been retained to foreclose. This form letter (as distinct from Exhibits A and B,
which comprise an instance of it) is referred to herein as the “Orlans PC Foreclosure
Letter”.”); ¶ 52 (describing the Garland Foreclosure Letter as an “example”); ¶ 54(e)
(Orlans PC Foreclosure Letters “[h]a[ve] contained other boilerplate text specified by
the client”).
The complaint alleges that “[i]n Michigan, the vast majority of Orlans PC’s
foreclosures have been pursuant to Michigan’s foreclosure by advertisement statute,
M.C.L. § 600.3201, et seq.” ECF No. 1 at ¶ 40. Defendants in the Motion do not
challenge this allegation or offer any contrary evidence. The complaint further alleges
5
that “in each foreclosure by advertisement proceeding in Michigan handled by Orlans
PC since at least 2011, Orlans PC has sent a letter to the debtor/mortgagor in
substantial conformity with Exhibits A and B” to the complaint.” ECF No. 1 at ¶ 41.
III.
ANALYSIS
A.
Motion to Dismiss
1.
FDCPA Claim
As recognized in Obduskey:
The FDCPA’s definitional section, 15 U.S.C. § 1692a, defines a “debt”
as:
“any obligation or alleged obligation of a consumer to pay
money arising out of a transaction in which the money,
property, insurance, or services which are the subject of the
transaction are primarily for personal, family, or household
purposes.” § 1692a(5) (emphasis added).
The Act then sets out the definition of the term “debt collector.” §
1692a(6). The first sentence of the relevant paragraph, which we shall
call the primary definition, says that the term “debt collector”:
“means any person ... 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 asserted to be owed or due another.” Ibid.
The third sentence, however, provides what we shall call the limitedpurpose definition:
6
“For the purpose of section 1692f(6) [the] term [debt
collector] also includes any person ... in any business the
principal purpose of which is the enforcement of security
interests.” Ibid.
The subsection to which the limited-purpose definition refers, §
1692f(6), prohibits a “debt collector” from:
Taking or threatening to take any nonjudicial action to
effect dispossession or disablement of property if—
(A) there is no present right to possession of the property .
..;
(B) there is no present intention to take possession of the
property; or
(C) the property is exempt by law from such dispossession
or disablement.
Obduskey, 139 S. Ct. at 1035-36.
In Obduskey, the Supreme Court granted a petition for certiorari “[i]n light of
different views among the Circuits about the application of the FDCPA to nonjudicial
foreclosure proceedings.” Obduskey, 139 S.Ct. 1035 (citing, among other cases,
Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 461 (6th Cir. 2013)). The Supreme
Court concluded that the defendant (McCarthy & Holthus LLP), a law firm that
engaged in security interest enforcements (specifically, through nonjudicial
foreclosure proceedings) is not a “debt collector” under the main provision of the
FDCPA (§ 1692a(6)), as the defendant was subject only to the prohibitions contained
7
in § 1692f(6). Obduskey, 139 S.Ct. at 1035.
In holding that the McCarthy law firm was not a “debt collector” under Section
1692a(6), the Supreme Court identified three reasons:
1.
The text of the FDCPA, in particular, the language in Section 1692f(6).
The court stated:
First, and most decisive, is the text of the Act itself. As a preliminary
matter, we concede that if the FDCPA contained only the primary
definition, a business engaged in nonjudicial foreclosure proceedings
would qualify as a debt collector for all purposes.
*****
The Act does not, however, contain only the primary definition. And the
limited-purpose definition poses a serious, indeed an insurmountable,
obstacle to subjecting McCarthy to the main coverage of the Act. It says
that “[f]or the purpose of section 1692f(6)” a debt collector “also
includes” a business, like McCarthy, “the principal purpose of which is
the enforcement of security interests.” § 1692a(6) (emphasis added).
This phrase, particularly the word “also,” strongly suggests that one who
does no more than enforce security interests does not fall within the
scope of the general definition. Otherwise why add this sentence at all?
It is logically, but not practically, possible that Congress simply wanted
to emphasize that the definition of “debt collector” includes those
engaged in the enforcement of security interests. But why then would
Congress have used the word “also”? And if security-interest enforcers
are covered by the primary definition, why would Congress have needed
to say anything special about § 1692f(6)? 1036-37
Obduskey, 139 S.Ct. at 1036-37.
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2.
Congress may have desired to treat security-interest enforcement
differently in order to avoid conflicts with nonjudicial foreclosure schemes, such as
Colorado’s. The Court reasoned:
Second, we think Congress may well have chosen to treat
security-interest enforcement differently from ordinary debt collection
in order to avoid conflicts with state nonjudicial foreclosure schemes. .
. . But it is also possible, in light of the language it employed, that
Congress wanted to avoid the risk of such conflicts altogether.
Obduskey, 139 S.Ct. at 1037.
3. The history of the FDCPA:
Third, for those of us who use legislative history to help interpret
statutes, the history of the FDCPA supports our reading. When drafting
the bill, Congress considered a version that would have subjected
security-interest enforcers to the full coverage of the Act. That version
defined a debt collector as “any person who engages in any business the
principal purpose of which is the collection of any debt or enforcement
of security interests.” S. 918, 95th Cong., 1st Sess., § 803(f) (1977)
(emphasis added). A different version of the bill, however, would have
totally excluded from the Act’s coverage “any person who enforces or
attempts to enforce a security interest in real or personal property.” S.
1130, 95th Cong., 1st Sess., § 802(8)(E) (1977). Given these conflicting
proposals, the Act’s present language has all the earmarks of a
compromise: The prohibitions contained in § 1692f(6) will cover
security-interest enforcers, while the other “debt collector” provisions of
the Act will not.
Obduskey, 139 S.Ct. at 1037-38.
The Obduskey court concluded:
In our view, the last sentence does (with its § 1692f(6) exception) place
9
those whose “principal purpose ... is the enforcement of security
interests” outside the scope of the primary “debt collector” definition, §
1692a(6), where the business is engaged in no more than the kind of
security-interest enforcement at issue here—nonjudicial foreclosure
proceedings.
Obduskey, 139 S.Ct. at 1033. See also Obduskey, 139 S.Ct. at 1038 (“but for §
1692f(6), those who engage in only nonjudicial foreclosure proceedings are not debt
collectors within the meaning of the Act.”)
In light of Obduskey, Defendants argue that the FDCPA does not regulate a
person such as Orlans PC, which is “engaged in nonjudicial foreclosures, except to the
limited extent provided in § 1692f(6) (which [are] not applicable here).” ECF No. 37,
PgID 2125.
Plaintiff contends that the instant case is different from Obduskey because the
foreclosure letter sent by Defendants did not implement any of the requirements of
Michigan’s nonjudicial foreclosure statute, whereas the defendant in Obduskey
allegedly only sent letters required by Colorado’s nonjudicial foreclosure statute.
Plaintiff believes Obduskey inapplicable to this case and urges the Court to continue
to apply Glazer. Under Plaintiff’s theory, Defendants would be debt collectors
pursuant to § 1692a(6) because the letter was sent “in connection with” the collection
of a debt. ECF No. 35, PgID 2063. The Court does not find that argument persuasive.
On its face, Obduskey abrogated Glazer with respect to the issue of whether the
10
FDCPA applies to nonjudicial foreclosure proceedings. See Obduskey, 139 S.Ct. at
1035-38 (majority opinion); 139 S.Ct. at 1040-41 (Sotomayor, J. concurring). In
Obduskey, the plaintiff argued that the defendant “engaged in more than securityinterest enforcement by sending notices that an ordinary homeowner would
understand as an attempt to collect a debt backed up by the threat of foreclosure.” Id.
at 1039 (emphasis in original). The Supreme Court noted this but stated that, “Indeed,
every nonjudicial foreclosure scheme of which we are aware involves notices to the
homeowner,” and the court thought that the FDCPA’s “(partial) exclusion of ‘the
enforcement of security interests’ must also exclude the legal means required to do
so.” Obduskey, 139 S.Ct. at 1039.
In this case, the Obduskey court’s language is significant because Plaintiff’s
Complaint alleges that:
a.
“Orlans PC is in the business of foreclosing on homes, and a large
portion of its business derives from its foreclosure practice;” [¶25]
b.
“On information and belief, the vast majority of non-commercial
residential property foreclosures conducted by Orlans PC in Michigan
and other states have been pursuant to non-judicial foreclosure statutes.”
[¶39]
c.
“In Michigan, the vast majority of Orlans PC’s foreclosures have been
pursuant to Michigan’s foreclosure by advertisement statute;” [¶40]
d.
On or about May 18, 2017, Defendants sent Plaintiff a letter stating that
they had been retained by Wells Fargo to foreclose on Plaintiff’s home.
[¶¶41-55]
11
ECF No. 1.
Although Plaintiff argues that Orlans PC is a debt collector subject to §
1692a(6), Plaintiff does not dispute that the letter and his FDCPA claim are based
upon a nonjudicial mortgage foreclosure or that Orlans PC’s primary business is
nonjudicial foreclosures. Even in its motion in opposition to the Motion to Dismiss,
Plaintiff argued that his “principal claim is that defendants sent out foreclosure notices
appearing to be from attorneys (or susceptible of that interpretation) that are instead
processed by non-attorney staff and mailed without meaningful attorney review. . . .
Defendants are Michigan’s second-largest foreclosure law firm and its two principal
owners and executives.”ECF No. 15, PgID 988 (citing ECF No. 1 at ¶¶ 13-14, 17-21,
23-27, 83-89).
Plaintiff contends that the Obduskey court limited its holding to those
“foreclosure law firm[s] whose communications relate solely to implementing a
nonjudicial foreclosure under state law.” ECF No. 35, PgID 2067 (citing Obduskey,
139 S.Ct. at 1037 (emphasis in Plaintiff’s brief) (“the debt-collector-related
prohibitions of the FDCPA . . . do not apply to those who, like McCarthy, are
engaged in no more than security interest enforcement.”) and 1038 (“These
considerations convince us that, but for § 1692f(6), those who engage in only
nonjudicial foreclosure proceedings are not debt collectors within the meaning of the”
12
FDCPA.).
Plaintiff claims that, as Obduskey does not apply, Defendants are “debt
collectors” under a 1999 Sixth Circuit case because Orlans PC “collects debts as a
matter of course for its clients or for some clients, or collects debts as a substantial,
but not principal, part of [its] general practice.” Schroyer v. Frankel, 197 F.3d 1170,
1176 (6th Cir. 1999). Plaintiff relies on Grden v. Leikin Ingber & Winters PC, 643
F.3d 169, 173 (6th Cir. 2011) (following Gburek v. Litton Loan Serv. LP, 614 F.3d
380, 385 (7th Cir. 2010), in arguing that the communication by Orlans PC only
needed to be “in connection with” the collection of a debt to come within § 1692e, as
Orlans PC “regularly collects debts.”). ECF No. 35, PgID 2075. The Court finds that
Plaintiff’s arguments appear to be inconsistent with his allegations set forth in the
Amended Complaint that Orlans PC’s business focuses on nonjudicial foreclosures.
Plaintiff next argues that, although the Obduskey court recognized that the law
firm in that case was pursuing nonjudicial foreclosures and, as such, did not come
within the definition of “debt collector” pursuant to §1692a(6), the Obduskey court
continued,
This is not to suggest that pursuing nonjudicial foreclosure is a license
to engage in abusive debt collection practices like repetitive nighttime
phone calls; enforcing a security interest does not grant an actor blanket
immunity from the Act. But given that we here confront only steps
required by state law, we need not consider what other conduct (related
to, but not required for, enforcement of a security interest) might
13
transform a security-interest enforcer into a debt collector subject to the
main coverage of the Act.
Obduskey, 139 S.Ct. at 1039-40 (emphasis added).
Plaintiff argues that, unlike the letter sent in Obduskey, the letter sent by Orlans
PC is not required under the Michigan nonjudicial foreclosure statutes. Plaintiff
contends that, because the letter sent by Orlans PC was not mandated by Michigan
statute, false, deceptive, and/or misleading representations in the letter would not
“avoid conflicts with state nonjudicial foreclosure schemes.” ECF No. 35, PgID 2073.
Since the hearing, Plaintiff has supplied the Court with cites to three cases that have
held Obduskey governs only those situations where the challenged actions by the law
firm were required under the applicable state law. See Sevela v. Kozeny & McCubbin,
L.C., 2019 U.S. Dist. LEXIS 80890, at **9-10 (D. Neb. May 2, 2019); Cooke v.
Carrington Mortg. Servs., 2019 U.S. Dist. LEXIS 120248, at **6-7 (D. Md. July 18,
2019); Gagnon v. Hal P. Gazaway & Assocs., L.L.C., 2019 U.S. Dist. LEXIS 159684,
at **5-6 (D. Alaska Sept. 19, 2019). Plaintiff asserts that the purpose of the Orlans
PC Foreclosure Letter was not to implement foreclosure, so it does not satisfy any of
the three rationales given by the Obduskey court. Plaintiff argues that is especially
true because Orlans PC was not attempting to enforce a security interest when sending
the letter to mitigate losses of their client.
Plaintiff’s arguments are inconsistent with the language of § 1692a(6), which
14
states: “[f]or the purpose of section 1692f(6) of this title, such term also includes any
person who uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the enforcement of security interests.”
(emphasis added). This language indicates that enforcement of security interests need
not be the only business of a party that is involved in the nonjudicial foreclosures, but
instead simply a business of the party (as is the case with Orlans PC).
When discussing § 1692f(6), the Obduskey court seemed to align with that
conclusion when it stated: “we believe that the statute exempts entities engaged in no
more than the ‘enforcement of security interests’ from the lion’s share of its
prohibitions.” Id. at 1040. See also Bates v. Green Farms Condo. Assoc., 2019 WL
4073395, at *3 (E.D. Mich. Aug. 29, 2019) (affirmed Bates v. Green Farms Condo.
Assoc., — F.3d — , 2020 WL 2111314 (6th Cir. May 4, 2020) (“Overall, the
complaint makes clear that the FDCPA claim against the Law Firm was based upon
the Law Firm’s initiation of nonjudicial foreclosure proceedings and ultimately a third
party’s purchase of plaintiffs' condominium unit at the foreclosure sale. See Complaint
at ¶¶ 11–15. Under Obduskey, this activity does not give rise to a FDCPA claim.”).
As the majority and Justice Sotomayor noted, Congress can amend the FDCPA if
persons pursuing nonjudicial foreclosure proceedings should be included in the
definition of “debt collector” at § 1692a(6). Obduskey, 139 S.Ct. at 1038, 1040
15
(majority opinion) and 1041 (Sotomayor, J., concurring).
For the reasons set forth above, the Court grants Defendants’ Motion to Dismiss
with respect to the FDCPA claim, with prejudice.
2.
RCPA Claim
As the Court has concluded that there is no viable FDCPA claim before the
Court, the Court no longer has federal subject matter jurisdiction over this matter.
Although the Court has the discretion to exercise supplemental jurisdiction over
Plaintiff’s RCPA claim, the Court finds: (a) that the RCPA claim is rooted in
Michigan law; and (b) more importantly, the issue of whether the RCPA applies to a
non-judicial foreclosure has not been litigated in or decided by Michigan courts. For
that reason, in the absence of federal subject matter jurisdiction, the Court: (1)
concludes that a determination of the RCPA’s applicability to nonjudicial foreclosures
would best be litigated in Michigan state courts; and (2) dismisses Plaintiff’s RCPA’s
claim without prejudice.
B.
Motion to Strike the Motion to Dismiss
The Motion to Dismiss filed by Defendants contains language regarding
Plaintiff’s criminal history, and some that criminal history is detailed. Before filing
his response brief, Plaintiff filed a Motion to Strike the Motion to Dismiss, asking the
16
Court to: (1) strike the Motion to Dismiss in its entirety; and (2) require Defendants
to file, within five days of entry of the order, a corrected or amended motion and
supporting brief that omits the first sentence of the “Introduction” section, the first
paragraph of the “Facts” section, and footnote 1. Plaintiff argues that the language he
seeks to omit is not relevant to this cause of action and constitutes nothing more than
a gratuitous attack against him.
Defendants assert that the Court is entitled to know Plaintiff’s background,
including his felony conviction and incarceration. Defendants further state that
Plaintiff raised – and the Court noted – Plaintiff’s incarceration in a previous action
Plaintiff filed against Defendant. Defendants suggest that the felony conviction is
relevant to the issues before the Court, including Plaintiff’s credibility, and would be
admissible pursuant to Federal Rule of Evidence 609. Defendants believe that
Plaintiff’s felony conviction for possession with intent to distribute cocaine is relevant
because he makes “conclusory and speculative allegations of subject matter
jurisdiction” that should not be presumed to be truthful.
The Court finds that Plaintiff justifiably brought the Motion to Strike the
Motion to Dismiss. The statements of Defendants regarding Plaintiff’s criminal
history have no bearing on the issue raised in the Motion to Dismiss or this action,
which is solely about whether Defendants (specifically, Orlans PC) engaged in
17
wrongful conduct when sending the letter at issue to Plaintiff. Nothing about that
letter pertains to Plaintiff’s conduct or credibility. As the statements included in the
Motion to Dismiss have no bearing on the issues raised in the Motion to Dismiss (or
Plaintiff’s claims), it is hard to fathom why such statements were included other than
to seek to prejudice the Court by identifying the “badness” or “bad acts” of Plaintiff.
For that reason, the Court finds that Defendants’ inclusion of such statements in its
Motion to Dismiss, at a minimum, contravenes the Eastern District of Michigan
Civility Principles (see, e.g., Lawyer’s Commitment of Professional Civility (“A
lawyer shall abstain from disrespectful, disruptive and/or abusive behavior, and will
at all times act with dignity, decency and courtesy”)), as well as civility and decency
as a whole.
The Court is not persuaded that it should grant the relief sought by Plaintiff,
however, for several reasons. First, Plaintiff (and the Court) previously noted in
public documents that Plaintiff was incarcerated immediately prior to filing the first
cause of action, only months before filing this cause of action. Second, the statements
regarding Plaintiff’s criminal history are, in fact, accurate. Third, the Court is not –
and will not be – prejudiced against Plaintiff due to uncivil and unnecessary
statements made by another party in documents filed on the docket or made on the
record.
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Accordingly, the Court denies Plaintiff’s Motion to Strike the Motion to
Dismiss. The Court: (a) orders Defendants – and Defendants’ counsel – to cease filing
irrelevant and/or unnecessary statements regarding the character or history of Plaintiff;
and (b) advises Defendants and their counsel that any further irrelevant and/or
unnecessary statements may subject the author or speaker to being held in contempt
of court.
C.
Motion to Strike Portions of Supplemental Brief
On April 9, 2019, the Court entered a Stipulated Order Lifting Stay and
Establishing Supplemental Briefing Schedule, which stated, in part:
2.
Defendants shall file on April 24, 2019, a Supplemental
Brief in Support of their pending Motion to Dismiss to address the
impact on the motion of the Obduskey decision, which Supplement shall
be no more than 15 pages.
3.
Plaintiff shall file on May 15, 2019, his Supplemental
Response in Opposition to defendants’ Motion to Dismiss to address the
impact on the motion of the Obduskey decision, which Supplement shall
be no more than 18 pages.
4. Defendants shall file on May 29, 2019, their Supplemental
Reply Brief in support of their Motion to Dismiss to address the impact
on the motion of the Obduskey decision, which Reply shall be no more
than 5 pages.
ECF No. 28, PgID 1872.
In its Motion to Strike Portions of Supplemental Brief, Plaintiff argues that
“Defendants filed a supplemental brief containing extensive argument and an exhibit
19
that have nothing to do with the impact of the Obduskey decision on the pending
motion to dismiss.” ECF No. 30, 1930. Defendants respond that they needed to
address the subject matter jurisdiction of this cause of action if the FDCPA claim was
dismissed.
The Court finds that Defendants’ arguments exceeded the parameters of the
April 9, 2019 Stipulated Order. Obduskey did not address subject matter jurisdiction,
nor did it address supplemental jurisdiction. The parties had the opportunity to fully
address those issues when the Motion to Dismiss originally was briefed in 2018 – and
each party exercised that opportunity. The Court concludes, however, that there is no
need to strike Defendants’ Supplemental Brief and require them to refile the
appropriate portions. The Court has the capacity, and has exercised that capacity, to
consider only the arguments in Defendants’ Supplemental Brief (and Reply) that stem
from the Obduskey decision. The Court concludes that Plaintiff is entitled to an award
of fees for the preparation and filing of the Motion to Strike Portions of Defendants’
Supplemental Brief. Defendants did not object to the Plaintiff’s request for an award
of $1,000.00, an amount the Court finds reasonable and warranted. Accordingly, the
Court orders that Defendants pay Plaintiff $1,000.00 for having to file the Motion to
Strike Portions of Defendants’ Supplemental Brief.
IV.
CONCLUSION
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Accordingly, for the reasons set forth above, the Court:
1.
GRANTS Defendants’ Motion to Dismiss [ECF No. 7];
2.
DENIES Plaintiff’s Motion to Strike the Motion to Dismiss [ECF
No. 11];
3.
DENIES Plaintiff’s Motion to Strike Portions of Defendants’
Supplemental Brief [ECF No. 30];
4.
DENIES AS MOOT Plaintiff’s Motion to Certify Class [ECF No.
31];
5.
DISMISSES Plaintiff’s FDCPA claim with prejudice and
Plaintiff’s RCPA claim without prejudice;
6.
WARNS Defendants about filing bad faith arguments or failing to
comply with Court Orders; and
7.
AWARDS Plaintiff $1,000.00 for having to file the Motion to
Strike Portions of Defendants’ Supplemental Brief.
IT IS SO ORDERED.
Dated: May 19, 2020
s/Denise Page Hood
DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE
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