Birge v. Smeall et al
Filing
53
MEMORANDUM OPINION- A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (MKR)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
LISA BIRGE, on behalf of
herself and all others
similarly situated,
)
)
)
)
Plaintiff,
)
)
v.
)
)
AARON E. SMEALL and SMITH,
)
GARDNER, SLUSKY, LAZER,
)
POHREN & ROGERS, LLP,
)
)
Defendants.
)
______________________________)
8:13CV136
MEMORANDUM OPINION
This matter is before the Court on the motion (Filing
No. 34) of the Defendants, Aaron Smeall (“Smeall”) and the law
firm of Smith, Gardner, Slusky, Lazer, Pohern & Rogers L.L.P.
(“Smith & Gardner”) (collectively the “Defendants”), for the
Court to reconsider its order dated September 20, 2013 (Filing
No. 31).
Prior to this order, the plaintiff, Lisa Birge
(“Birge”), alleged three issues concerning the Federal Debt
Collection Practices Act (“FDCPA”) and the Nebraska Consumer
Protection Act (“NCPA”).
After considering an accompanying brief
(Filing No. 20) and index of evidence (Filing No. 21), the Court
dismissed two issues on a motion for failure to state a claim
(Filing No. 19) but concluded that Birge sufficiently pled the
remaining issue:
whether an unsophisticated consumer would be
misled by a purported “FDCPA notice” and accompanying legal
documents when a debt collector failed to indicate who would deem
a debt valid in the event of the debtor’s non-response (Filing
No. 31, at *9).
The Defendants offer a new brief (Filing No. 35)
and index of evidence (Filing No. 36) to substantiate their
earlier arguments.
Birge has filed a brief in opposition (Filing
No. 46) and the Defendants have filed their reply brief (Filing
No. 51).
Birge has also supplemented the record with documents
regarding a very similar case, Jernigan v. Gen. Collection Co.,
8:13-cv-178 (D. Neb. Nov. 15, 2013) (Filing No. 52).
After
consideration of these documents and the relevant case law, the
Court will reconsider whether the “FDCPA notice” would materially
mislead an unsophisticated consumer.
BACKGROUND
Birge was a debtor to Nebraska Furniture Mart (the
“Mart”) when her account became delinquent (Filing No. 31, at 2).
The Mart retained Smeall and his firm, Smith & Gardner, to
collect the debt in Nebraska state court (Id.).
When the
Defendants served Birge with her summons and a copy of the
complaint, the Defendants attached a document which they labeled
“FDCPA notice” (Id.).
This notice lacked the statutory language
contained within § 1692g(a)(4) of the FDCPA because it omitted
the phrase “by the debtor” (Id.).
Therefore, the notice stated
“Unless the debtor disputes the debt within thirty (30) days
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after receipt of the notice, it will be assumed that the debt is
valid” (Ex. A, Filing No. 1-1, at 3).
Birge filed her answer
within thirty days (Filing No. 36-4, at 6).
After several state court proceedings, Birge filed the
current action in the United States District Court for the
District of Nebraska (Filing No. 1).
The Court denied in part
the Defendants’ motion to dismiss for failure to state a claim
(Filing No. 31).
The Defendants now file a motion for the Court
to reconsider its previous order.
Birge objects on the grounds
that, because the Court did not exclude the original index of
evidence from its order on September 20, 2013, the Defendants
must meet the burdens of Fed. R. Civ. P. 60(b) for
reconsideration.
RECONSIDERATION
Generally, if the Court considered matters outside of
the pleadings on a motion for failure to state a claim, the Court
must treat that previous motion as a motion for summary judgment.
See Fed. R. Civ. P. 12(d).
However, district courts in the
Eighth Circuit “may consider . . . matters of public record” when
addressing a motion to dismiss for failure to state a claim
without converting the motion from failure to state a claim into
one of summary judgment.
Illig v. Union Elec. Co., 652 F.3d 971,
977 (8th Cir. 2011) (quoting Mills v. City of Grand Forks, 614
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F.3d 495, 498 (8th Cir. 2010)) (citing Porous Media Corp. v. Pall
Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)), Little Gem Life
Sciences, L.L.C. v. Orphan Medical, Inc., 537 F.3d 913, 916 (8th
Cir. 2008).
The parties agree that the documents in the previous
index of evidence are public records (Filing No. 46, at 6; Filing
No. 51, at 3).
The Court will not treat its previous order as
one for summary judgment.
See Illig, 652 F.3d at 977.
District courts have “the inherent power to reconsider
and modify an interlocutory order any time prior to the entry of
judgment.”
K.C. 1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009,
1017 (8th Cir. 2007) (quoting Murr Plumbing, Inc. v. Scherer
Bros. Fin. Servs. Co., 48 F.3d 1066, 1070 (8th Cir. 1995)).
Because the Court’s previous order adjudicated less than all the
claims, the Court will reconsider it.
LEGAL STANDARD
Complaints filed in federal court must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
Courts may grant
a motion to dismiss when the plaintiff failed “to state a claim
upon which relief can be granted."
Fed. R. Civ. P. 12(b)(6).
“When ruling on a motion to dismiss, the court must accept the
allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.”
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Coons v.
Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005).
“The plausibility
standard requires a plaintiff to show at the pleading stage that
success on the merits is more than a sheer possibility.
not, however, a probability requirement.”
It is
Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (internal
quotations and citations omitted).
DISCUSSION
Congress enacted the FDCPA to “eliminate abusive debt
collection practices.”
Jernigan v. Gen. Collection Co., No.
8:13-cv-178, Filing No. 26, at *6 (D. Neb. Nov. 15, 2013) (citing
Hemmingsen v. Messerli & Kramer. P.A., 674 F.3d 814, 817 (8th
Cir. 2012) (quoting Jerman v. Carlisle, McNellie, Rini, Kramer &
Ulrich L.P.A., 559 U.S. 573, 576 (2010)).
However, the FDCPA
also has the “‘apparent objective of preserving creditors’
judicial remedies.’”
Id. (quoting Hemmingsen, 674 F.3d at 819).
“There is no need for follow-on § 1692e litigation that increases
the cost of resolving bona fide debtor-creditor disputes.”
Id.
(quoting Hemmingsen, 674 F.3d at 820).
As in Jerigan, Birge claims that the omission of the
phrase “by the debt collector” was false, deceptive, or
misleading.
The omission was not “false” or “deceptive” as a
matter of law.
See id.
A statement does not mislead an
unsophisticated consumer if it “‘effectively conveys’ the
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consequences of the debtor’s inaction.”
Id. at *6, n.2-3
(quoting Peters v. Gen. Serv. Bureau, 277 F.3d 1051, 1055-56 (8th
Cir. 2002)).
Therefore, the omission of who will deem a debt
valid does not materially mislead an unsophisticated consumer as
a matter of law because the FDCPA notice effectively conveyed the
consequences of the debtor’s inaction.
Id. at *6.
In addition, Birge failed to state a claim under the
NCPA for the same reasons as her FDCPA claim.
See Triple 7, Inc.
v. Intervet, Inc., 338 F. Supp. 2d 1082, 1087 (D. Neb. 2004).
NCPA claims require unfair or deceptive trade practices that
affect the public interest.
Nelson v. Lusterstone Surfacing Co.,
258 Neb. 678, 684, 605 N.W.2d 136, 142 (2000).
Birge claims that
the Defendants violated the NCPA by using form letters that
violated the FDCPA.
Filing No. 13, ¶ 50.
Because those form
letters do not violate the FDCPA, those letters do not violate
the NCPA.
Therefore, Birge’s complaint fails.
A separate order
will be entered in accordance with this memorandum opinion.
DATED this 17th day of December, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
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