Buchholz v. Meyer Njus Tanick, PA

Filing 18

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GUSTAV J. BUCHHOLZ,
Plaintiff,
v.

Case No. 1:18-CV-607

MEYER NJUS TANICK, PA,

HON. GORDON J. QUIST

Defendant.
______________________________/
OPINION
The motion before the Court requests that the Court determine if Plaintiff, Gustav J.
Buchholz, has standing to sue Defendant, Meyer Njus Tanick, PA, based on allegations that
Defendant violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq.
Presently before the Court is Defendant’s motion to dismiss (ECF No. 13) for lack of subjectmatter jurisdiction or failure to state a claim for which relief can be granted. Fed. R. Civ. P.
12(b)(1), (6). For the reasons stated below, the Court will grant Defendant’s motion to dismiss.
I.

Background

On May 9, 2018, Plaintiff received two collection letters from Defendant, attempting to
collect payment of two separate outstanding consumer debts that Plaintiff allegedly owed to
Synchrony Bank. The letters were on Defendant’s law firm letterhead and were signed by Kara
L. Harms, an attorney working in Defendant’s Michigan office. Plaintiff claims that the letters
were “automated” as demonstrated by the nearly identical wording in the letters, the electronic
signature of the attorney, and a barcode at the bottom of each letter. Plaintiff asserts that Defendant
violated the FDCPA by sending letters “represent[ing] that it was sent by Ms. Harms after she had

engaged in a meaningful review of Plaintiff’s account prior to sending the letter[s].” (ECF No. 12
at PageID.48.) According to Plaintiff, “[a]s a result of Defendant’s misrepresentations regarding
the extent to which an attorney reviewed the collection letters prior to sending them to Plaintiff,
[he] felt an undue sense of anxiety that he would be subjected to legal action if prompt payment
was not made,” and consequently “conferred with his counsel regarding the nature of Defendant’s
collection letters.” (Id. at PageID.51.)
II.

Legal Standards

Defendant disputes that Plaintiff has standing to bring his claims. “Whether a party has
standing is an issue of the court’s subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1).” Lyshe v. Levy, 854 F.3d 855, 857 (6th Cir. 2017) “To satisfy the ‘irreducible
constitutional minimum of standing,’ the plaintiff must establish that: (1) he has suffered an injury
in fact that is (a) concrete and particularized and (b) actual or imminent rather than conjectural or
hypothetical; (2) that there is a causal connection between the injury and the defendant’s alleged
wrongdoing; and (3) that the injury can likely be redressed.” Id. (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136 (1992)). At the pleading stage of the case, Plaintiff
must “‘clearly . . . allege facts demonstrating’ each element” of standing. Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016) (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S. Ct. 2197, 2215
(1975)).
When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must
determine whether the complaint contains “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

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556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). Although the plausibility standard is not
equivalent to a “‘probability requirement,’ . . . it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S. Ct. at 1965). A
complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice
of what . . . the claim is and the grounds upon which it rests.’” Twombly, 550 U.S. at 555, 127 S.
Ct. at 1959 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103 (1957)).
III.

Discussion

Defendant argues that Plaintiff has not alleged a concrete injury “that is fairly traceable to
the challenged conduct of the defendant.” Spokeo, 136 S. Ct. at 1547. Plaintiff cannot “allege a
bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact
requirement of Article III.” Id. at 1549. “Article III standing requires a concrete injury even in
the context of a statutory violation.” Id.
In this case, Plaintiff alleges that Defendant violated the FDCPA by misrepresenting that
an attorney had reviewed the case and that he was injured in the form of an “undue sense of
anxiety.” However, Plaintiff does not claim that the letters misrepresented the money Plaintiff
owed on the two different accounts. Plaintiff fails to state how his sense of anxiety was anything
other than the anxiety he would feel in facing debt collection. Thus, his purported injury is not
causally linked to the challenged actions of Defendant, and he lacks standing to bring his claims.
See Cheslek v. Asset Acceptance Capital Corp., No. 1:16-CV-1183, 2017 WL 7370983, at *3
(W.D. Mich. Dec. 22, 2017) (granting the defendant’s motion to dismiss for lack of standing after
finding that “any stress or expenses [Plaintiff] incurred would have been the result of having to
defend a lawsuit that was properly filed to collect the $3,468.71 debt that Plaintiff failed to pay”).

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Moreover, Plaintiff has not demonstrated that Defendant violated the FDCPA. Although
Plaintiff states in his First Amended Complaint that the first letter he received “represented that it
was sent by Ms. Harms after she had engaged in meaningful review of Plaintiff’s account prior to
sending the letter” (ECF No. 12 at PageID.48), the letter made no representation regarding a
review, much less a “meaningful review.” The letter, attached as Exhibit A to Defendant’s motion
to dismiss (ECF No. 14-2 at PageID.68), simply states that the law firm had been retained to collect
the debt, and as such, the letter was from a debt collector. The letter even specifically states that
if Plaintiff disputed the debt or any portion thereof, “this firm will obtain verification of the debt
or obtain a copy of a judgment and mail you a copy of such verification or judgment.” The FDCPA
prohibits “any false, deceptive, or misleading representation or means in connection with the
collection of any debt.” 15 U.S.C. § 1692e. The goal of the FDCPA is it eliminate abusive debt
collection practices, not all debt collection practices. Lyshe, 854 F.3d at 859. Plaintiff has not
pled a concrete injury that is fairly traceable to Defendant and has not alleged how Defendant
engaged in any unlawful behavior. Therefore, Plaintiff’s claims will be dismissed.
A separate order of dismissal will be entered.

Dated: September 27, 2018

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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