Erickson v. Credit Bureau Services, Inc. et al

Filing 44

MEMORANDUM AND ORDER denying 42 Defendants' Motion to Clarify. Ordered by Chief Judge Joseph F. Bataillon. (SMS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM P. ERICKSON, on behalf of
himself and all others similarly situated,
Plaintiff,
v.
CREDIT BUREAU SERVICES, INC.,
and DANIEL A. MARTIN,
Defendants.

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8:11CV215

MEMORANDUM AND ORDER

This matter is before the court on the defendants’ motion for clarification of the
court’s November 1, 2011, Memorandum and Order denying defendants’ motion to
dismiss, Filing No. 42. This is a purported class action for damages and injunctive relief
for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
(hereinafter “FDCPA” or “Act”) and the Nebraska Consumer Protection Act (“NCPA”), Neb.
Rev. Stat. § 59-1601 et seq.
In their motion, the defendants seek clarification of the court’s finding that the
plaintiff’s complaint stated a plausible claim for relief. Specifically, defendants contend
that certain language in the order is “tantamount to a finding of the existence of a question
of fact that could arguably preclude summary judgment in favor of the Defendants at a later
date.” Filing No. 42, Motion at 3. The language at issue is the sentence that reads: “The
collection letters at issue are not merely susceptible of an ingenious misreading, and could
be considered misleading from the perspective of an unsophisticated consumer.”
Defendants ask the court to “clarify the sentence to confirm that the phrase is merely dicta

and/or does not constitute the law of the case, and that it has no bearing on any future
motions that may be before the Court in this case.” Filing No. 42, Motion at 2.
The court finds clarification is not necessary. A finding that a claim is plausible is
not a finding that it is certain or even probable. The court’s order does nothing more than
deny a motion to dismiss for failure to state a claim on the face of the pleading. Factual
issues await further development. In the context of the opinion as a whole, the court
expresses no legal conclusions, nor does it make factual findings. The court would find
any reliance on the court’s statement as support for a summary judgment motion to be
without merit. In view of the foregoing, further clarification is not necessary. Accordingly,
the court finds the defendants’ motion should be denied.
IT IS ORDERED that the defendants’ motion to clarify (Filing No. 42) is denied.
DATED this 30th day of November, 2011.

BY THE COURT:

s/ Joseph F. Bataillon
Chief District Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
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