Gearman v. J. Mark Heldenbrand, PC et al

Filing 22

ORDER granting in part and denying in part 14 Motion to Dismiss.Signed by Senior Judge David S. Doty on 9/9/2015.(DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 15-2039(DSD/FLN)
Patricia J. Gearman,
Plaintiff,
ORDER

v.
J. Mark Heldenbrand, PC
and Shawn Williams,
Defendant.

Thomas J. Lyons, Esq., Lyons Law Firm, P.A., 367 Commerce
Court, Vadnais, Heights, MN 55127, attorneys for plaintiff.
Andrew D. Parker, Esq. and Mark J. Kiperstin, Esq., Parker
Rosen, LLC, 123 North Third Street, Suite 888, Minneapolis, MN
55401, attorneys for defendants.
This matter is before the court upon the motion to dismiss by
defendants J. Mark Heldenbrand, PC and Shawn Williams.

Based on a

review of the file, record, and proceedings herein, and for the
following reasons, the court grants the motion in part and denies
the motion in part.

BACKGROUND
This debt-collection dispute arises out of an attempt by
defendants to collect a consumer debt owed by plaintiff Patricia J.
Gearman to Anytime Fitness.

Heldenbrand is a law firm that offers

debt collection services and Williams is a debt collector who works
for Heldenbrand.
Gearman became delinquent on her payments and Anytime Fitness
referred her account to Heldenbrand for collection.

Am. Compl.

¶ 10. Between December 9, 2014, and February 16, 2015, Heldenbrand
discussed payment options with Gearman via telephone at least four
times.

Id. ¶¶ 12-17.

Heldenbrand also sent a letter to Gearman’s

residence on January 23, 2015.

Id. ¶ 15.

Two relevant events occurred on February 16, 2015.
morning, Heldenbrand1 called and spoke to Gearman.

That

Id. ¶ 17.

Despite this communication - and the four prior conversations
between

Heldenbrand

and

Gearman

-

Williams

called

Gearman’s

landlord, Galen Watje, at 1:47 p.m. on February 16, 2015.
¶ 18.

Id.

Williams left the following voicemail message on Watje’s

answering machine: “This is an important message ... from the Law
Office of J. Mark Heldenbrand. Please return the call to 877-2648498, extension 102.”

Id.

Heldenbrand then spoke with Gearman

twice on February 19, 2015, but did not mention Williams’ attempt
to

communicate

with

Gearman’s

landlord

or

that

Heldenbrand

indicated to the landlord that it was having trouble contacting
her.

Id. ¶ 19.
On February 24, 2014, Watje returned Williams’ telephone call.

Id. ¶ 20.

Watje was initially greeted with a pre-recorded message

from Heldenbrand’s office, which disclosed that Watje was calling
a

law

office

collection.

1

and

that

the

office’s

Id. ¶ 21; Parker Aff. Ex. 1.

It is unclear whether
Heldenbrand made the call.

Williams
2

business

included

debt

When Watje connected to

or

someone

else

from

Williams, Williams stated that Heldenbrand was “trying to get in
touch with a Patty Gearman.”

Parker Aff. Ex. 1.

Williams noted

that Watje “came up as an associate” of Gearman because she was
Watje’s tenant.

Am. Compl. ¶ 22; Parker Aff. Ex. 1.

stated, “We are trying to get a hold of her.
Gearman has any idea what is going on here.
reach her.
1.

Williams then

I don’t think Ms.

We have been trying to

Do you know how to reach Ms. Gearman?”

Parker Aff. Ex.

Williams confirmed Gearman’s address with Watje and asked him

to “pass on the message so we can at least notify her what is going
on.”

Later that day, Watje sent a text message to Gearman

informing her that Williams “had been calling us to get a hold of
you.”

Am. Comp. ¶ 26.

Gearman filed this suit on April 17, 2015.

She filed an

amended complaint on June 11, 2015, alleging that defendants’
voicemail to and subsequent telephone conversation with Watje
violated

the

Fair

Debt

Collection

Practices

Act

(FDCPA)

and

constituted invasion of privacy under Minnesota law. Defendants now
move to dismiss.

DISCUSSION
I.

Standard of Review
To survive a motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”

3

Braden v. Wal–Mart Stores,

Inc., 588 F.3d 585, 594 (8th Cir. 2009) (internal quotation marks
omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A
claim has facial plausibility when the plaintiff [has pleaded]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)).

Although a complaint need not contain detailed

factual allegations, it must raise a right to relief above the
speculative level.

See Twombly, 550 U.S. at 555.

“[L]abels and

conclusions or a formulaic recitation of the elements of a cause of
action” are not sufficient to state a claim.

Iqbal, 556 U.S. at

678 (citation and internal quotation marks omitted).
The court does not consider matters outside of the pleadings
under Rule 12(b)(6).

Fed. R. Civ. P. 12(d).

The court, however,

may consider matters of public record and materials that do not
contradict the complaint or are “necessarily embraced by the
pleadings.”

Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079

(8th Cir. 1999).

Here, the court relies on the recordings of (1)

the voicemail left by Williams for Watje, and (2) the telephone
call by Watje to Williams.2

These materials are necessarily

embraced by the pleadings, and neither party objects to the Court’s
consideration of them in the context of this motion.

2

These materials are provided in the Affidavit of Andrew D.
Parker as Exhibit 1.
4

II.

FDCPA Claims
Gearman alleges that Williams’ voicemail to and subsequent

telephone call with Watje violated the following five sections of
the FDCPA: 15 U.S.C. §§ 1692b, 1692c(b), 1692d, 1692e, and 1692f.
A.

Sections 1692b and 1692c(b)

Gearman first argues that defendants violated §§ 1692b and
1692c(b).

Relevant to the parties’ dispute, § 1692b provides:
Any debt collector communicating with any
person other than the consumer for the purpose
of acquiring location information about the
consumer shall—
(1)

identify himself, state that he is
confirming
or
correcting
location
information concerning the consumer, and,
only if expressly requested, identify his
employer; [and]

(2)

not state that such consumer owes any
debt.

Section 1692c(b) states, “Except as provided in section 1692b of
this title ... a debt collector may not communicate, in connection
with the collection of any debt, with any person other than the
consumer.”

Gearman alleges that Williams’ voicemail to subsequent

phone call with Watje were communications in connection with the
collection of a debt.

Gearman further argues that defendants did

not satisfy the requirements of § 1692b because they did not
acquire “location information” and implied to Watje that Gearman
owed a debt.

Defendants respond that no “communication” withing

the meaning of the FDCPA occurred during the course of these phone

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calls because they neither conveyed any information about Gearman’s
debt nor stated that she owed a debt.
The

FDCPA

defines

The Court agrees.

“communication”

as

“the

conveying

of

information regarding a debt directly or indirectly to any person
through any medium.”

Id. § 1692a(2).

There is no allegation that

defendants stated that Gearman owed a debt of any kind.

First,

defendants’ pre-recorded greeting simply identified defendants as
debt collectors, a statement that was an attempt to comply with
§ 1692e(11).

It would be “absurd” to deem a required disclosure

under the FDCPA to be a violation of a different provision of the
FDCPA.

Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 399-400 (6th

Cir. 1998); see also Wade v. Reg’l Credit Ass’n, 87 F.3d 1098, 1100
(9th

Cir.

1996)

(finding

no

FDCPA

violation

based

on

“informational” disclaimer and noting that debt collector “would
have violated

the

Act

had

it

not included

this

statement”).

Second, merely identifying oneself as a debt collector does not
convey

information

regarding

a

debt.

See

Zortman

v.

J.C.

Christensen & Assocs., Inc., 870 F. Supp. 2d 694, 707-08 (D. Minn.
2012) (finding that a voicemail that identified the caller as a
“debt

collector”

but

“did

not

identify

a

debt”

was

not

a

“communication”); Zamos v. Asset Acceptance, LLC, 423 F. Supp. 2d
777, 782 (N.D. Ohio 2006) (“Plaintiff does not establish that
Defendant

Burditt’s

telephone

call

informing

the

landlord’s

representative of his identity [as a debt collector] and his

6

employer

violates

the

FDCPA.”).

Third,

Williams

properly

identified himself and simply confirmed Gearman’s address during
his telephone call with Watje.

Williams notably did not disclose

Gearman’s debt in his conversation with Watje.

See Horkey v.

J.V.D.B. & Assocs., Inc., 179 F. Supp. 2d 861, 868 (N.D. Ill. 2002)
(holding that a debt collector’s call to a third party does not
constitute a § 1692c(b) violation when the conversation is “limited
to

inquiring

as

to

Plaintiff’s

whereabouts”).

Under

these

circumstances, Williams’ voicemail to and telephone call with Watje
did not constitute “communications” within the meaning of the
FDCPA.

As a result, dismissal of the §§ 1692b and 1692c(b) claims

is warranted.
B.

Section 1692d

Gearman next argues that defendants violated § 1692d, which
prohibits a debt collector from engaging “in any conduct the
natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt.”

The statute

provides a nonexhaustive list of proscribed conduct:
(1)
(2)
(3)
(4
(5)
(6)

The use or threat ... of violence or other criminal
means....
The use of obscene or profane language or language the
natural consequence of which is to abuse the hearer....
The publication of a list of consumers who allegedly
refuse to pay debts....
The advertisement for sale of any debt to coerce payment
of the debt.
Causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with
intent to annoy, abuse, or harass....
[T]he placement of telephone calls without meaningful
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disclosure of the caller's identity.
Id. Gearman does not argue that any of the above sections apply to
the telephone calls at issue.

Rather, Gearman argues that “the

natural consequence of the totality of Defendants’ conduct in this
matter was to harass, oppress, and abuse Plaintiff.”
Mem. at 23.

Pl.’s Opp’n

However, § 1692d “prohibits only oppressive and

outrageous conduct.”

Beattie v. D.M. Collections, Inc., 754 F.

Supp. 383, 394 (D. Del. 1991). The relaying of contact information
through a telephone call is neither oppressive nor outrageous. See
Durthaler v. Accounts Receivable Mgmt., Inc., 854 F. Supp. 2d 485,
492 (S.D. Ohio 2012) (finding thirty phone calls to plaintiff and
two to plaintiff’s roommate did not violate § 1692d).

Defendants’

minimal actions, whether considered individually or collectively,
do not rise to the level of “oppressive” or “outrageous” conduct
required under § 1692d, and dismissal of this claim is warranted as
a matter of law.
C.

Section 1692e

Gearman next alleges that defendants violated § 1692e by
stating that Watje was an “associate” of Gearman and implying that
he was tied to her outstanding debt obligation.

Section 1692e

prohibits a debt collector from using “any false, deceptive, or
misleading

representation

collection of any debt.”

or

means

in

connection

with

the

Relevant here, a debt collector may not

use “any false representation or deceptive means to . . . obtain

8

information concerning a consumer.”

Id. § 1692e(10).

Violations

of this provision must be grounded in material misrepresentations
to constitute a viable claim.

Warren v. Sessoms & Rogers, P.A.,

676 F.3d 365, 374 (4th Cir. 2012); Hahn v. Triumph P’ships, L.L.C.,
557 F.3d 755, 758 (7th Cir. 2009).
Here, Williams did not make a material misrepresentation or
deceive Watje when he referred to Watje as an “associate” of
Gearman. Any possible negative inferences that could be drawn from
his use of this term were immediately dispelled when Williams
explained that he used the term to describe Watje’s landlord-tenant
relationship with Gearman.

As a result, Gearman’s § 1692e claim

based on defendants’ use of the word “associate” is unfounded.
Defendants did misrepresent their ability to contact Gearman,
however.

Heldenbrand had numerous contacts with Gearman, both by

letter and by telephone, before Williams contacted Watje again on
February 16, 2015.

Williams’ statements to Watje nevertheless

indicated to the contrary.
to get a hold of her.
is going on here.

See Parker Aff. Ex. 1 (“We are trying

I don’t think Ms. Gearman has any idea what

We have been trying to reach her.

how to reach Ms. Gearman?”).

Do you know

Williams made this misrepresentation

despite the fact that someone from Heldenbrand3 had spoken with
Gearman that very morning.

Williams’ deceit - whether knowing and

intentional or not - caused Watje to send a text message to Gearman
3

As noted, it is unclear at this time whether Williams or
another Heldenbrand employee spoke with Gearman.
9

informing her that he had been contacted by debt collectors trying
to reach her.
alleged

facts

Under these circumstances, Gearman has sufficiently
supporting

a

§

1692e

claim

based

on

the

misrepresentation regarding defendants’ ability to contact Gearman.
Defendants’ motion to dismiss this aspect of the § 1692d claim is
therefore denied.
D.

Section 1692f

Gearman next argues that defendants violated § 1692f, which
provides

that

a

“debt

collector

may

not

use

unfair

or

unconscionable means to collect or attempt to collect any debt.”
Section 1692f lists several examples of proscribed unfair and
unconscionable practices.

See id. § 1692f(1)-(8) (providing non-

exhaustive list of conduct including collecting more money than
expressly authorized, accepting or soliciting postdated checks,
threatening criminal prosecution, causing consumer to incur collect
call or telegram charges, threatening unauthorized nonjudicial
action, and communicating by postcard).
The alleged conduct in the present matter - one telephone
message and a returned phone call - is far less severe than the
above enumerated examples.

See, e.g., Bryant v. Bonded Account

Serv./Check Recovery, Inc., 208 F.R.D. 251, 258 (D. Minn. 2000)
(denying a debt collector’s motion to dismiss a § 1692f claim that
was based on the debt collector’s letter implying that the consumer
might be denied emergency medical assistance due to the consumer’s

10

debt).

Moreover,

inappropriate
communications.

case

vehicle

law
to

establishes
bring

a

that

claim

§
for

1692f

is

an

third-party

Hoover v. Monarch Recovery Mgmt., Inc., 888 F.

Supp. 2d 589, 600-02 (E.D. Pa. 2012) (noting the absence of “any
authority demonstrating that communicating information to third
parties constitutes a violation of § 1692f” and “[t]hat Congress did
not include third party disclosure in § 1692f, yet did include it
in § 1692c(b), generally means that Congress intended for third
party disclosure not to constitute a violation of § 1692f”).

As a

result, the court finds that, as a matter of law, these allegations
do not rise to the level of “unfair” or “unconscionable,” and
dismissal of the § 1692f claim is warranted.
III. State Law Claim for Intrusion Upon Seclusion
Finally, Gearman argues that defendants violated Minnesota
state common law by invading her privacy due to intrusion upon
seclusion.

“The specific tort of intrusion upon seclusion occurs

when one intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns
... if the intrusion would be highly offensive to a reasonable
person.”

Bauer v. Ford Motor Credit Co., 149 F. Supp. 2d 1106,

1108-09 (D. Minn. 2001); see also Lake v. Wal–Mart Stores, Inc., 582
N.W.2d 231, 233 (Minn. 1998).
Defendants’ actions do not rise to the level described in Bauer
and are not “highly offensive.”

Watje sent Gearman a single text

11

message based on the two phone calls between Watje and defendants.
These communications do not constitute highly offensive intrusions
as a matter of law.

See Bauer, 149 F. Supp. 2d at 1109 (quoting

Restatement (Second) of Torts § 652B cmt. d (1977)) (“[T]here is no
liability for knocking at the plaintiff’s door, or calling him to
the telephone on one occasion or even two or three, to demand
payment of a debt. It is only when the telephone calls are repeated
with such persistence and frequency as to amount to a course of
hounding the plaintiff, that becomes a substantial burden to his
existence, that his privacy is invaded.”).

Dismissal of the claim

for intrusion upon seclusion is therefore warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

The motion to dismiss [ECF No. 14] is granted as to

Gearman’s claims under 15 U.S.C. §§ 1692b, 1692c(b), 1692d, 1692f,
and for intrusion upon seclusion; and
2.

The motion to dismiss the claim under 15 U.S.C. § 1692e is

granted in part and denied in part as set forth above.

Dated:

September 9, 2015
s/David S. Doty
David S. Doty, Judge
United States District Court

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