Washington v. Brumbaugh & Quandahl, P.C., LLO. et al

Filing 120

MEMORANDUM AND ORDER - 1. Washington's motion for class certification (filing 74 ) is denied.2. B&Q's motion to dismiss for failure to state a claim (filing 77 ) is denied as moot.3. B&Q's motion for summary judgment (filing 96 ) is granted in part, and denied in part, as set forth above.4. Washington's motion for partial summary judgment (filing 100) is granted in part, and denied in part, as set forth above.5. B&Q's motion for contempt (filing 113 ) is denied.6. Washington shall show cause, on or before October 7, 2017, why summary judgment should not be entered as to her NCPA claims.7. The Clerk of the Court shall enter a show cause deadline of October 7, 2017.8. This matter is referred to the Magistrate Judge for case progression as to Washington's remaining, unresolved claim against Quandahl.Ordered by Judge John M. Gerrard. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TAMERRA WASHINGTON,
Plaintiff,

8:15-CV-444

vs.
MEMORANDUM AND ORDER
BRUMBAUGH & QUANDAHL, P.C.,
LLO.; KIRK E. BRUMBAUGH; and
MARK QUANDAHL,
Defendants.
This dispute is straightforward: the plaintiff, Tamerra Washington,
was sued in state court on an unpaid debt. As part of that proceeding,
Washington was served with discovery requests which, she claims, were false
and misleading. She has sued Brumbaugh & Quandahl, the debt collection
firm, and the firm's two founding partners—Mark Quandahl and Kirk
Brumbaugh (collectively, "B&Q"). Washington's class action complaint seeks
monetary and injunctive relief under the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. § 1692 et seq., and the Nebraska Consumer Protection
Act (NCPA), Neb. Rev. Stat. § 59-1601 et seq. See filing 69.
That initial semblance of clarity, however, is lost in the over 1,200
pages of highly contentious argument and evidence currently before the
Court. Those filings correspond to five pending motions, which include
Washington's motion for class certification, B&Q's motion to dismiss, the
parties' cross-motions for summary judgment, and B&Q's motion for
contempt. As discussed in more detail below, the Court will, for the most
part, address those motions in order—starting with Washington's motion for
class certification. Ultimately, that motion will be denied, as will B&Q's

motion to dismiss, and its motion for contempt. The parties' cross-motions for
summary judgment will be granted in part, and denied in part, as set forth
below.
BACKGROUND
Tamerra Washington incurred a debt in 2011. That bill went unpaid, so
the creditor retained defendant B&Q to pursue legal action against her. On
September 18, 2015, B&Q filed suit against Washington in Douglas County
Court. See filing 69 at 4. Washington, proceeding pro se, filed a general denial
to the complaint. Filing 69 at 5; filing 69-3 at 1.
A few weeks later, B&Q served Washington with discovery requests,
including interrogatories and requests for admissions. Filing 69 at 5; filing
69-1 at 1-8. Through those documents, B&Q sought general information from
Washington about the existence of the debt, and Washington's prior payment
history, if any. For example, in its interrogatories, B&Q asked Washington to
list the date, amount, and manner of any payments that she had made
towards the underlying obligation. Filing 69-1 at 7-8. Similarly, in its request
for admissions, B&Q asked Washington, among other questions, to admit or
deny owing the debt, which it listed at $7,570.87. Filing 69-1 at 2-3.
B&Q's discovery requests also contained limited information on where
and how Washington should submit her answers. Its requests for admissions,
for example, contained the following text:
COMES NOW the Plaintiff and propounds the following Request
for Admissions upon Defendant pursuant to the Nebraska
Revised Statutes. Written, sworn answers must be filed by
Defendant[s] within thirty days of the services hereof, or the
facts, the truth of which is requested, shall be deemed admitted.

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Filing 69-1 at 2 (emphasis added). The materials did not, however, include
information regarding Washington's rights as a Nebraska litigant. In other
words, B&Q did not expressly inform Washington—through its discovery or
otherwise—that she had a right to object to discovery-related inquiries under
Neb. Ct. R. Disc. § 6-336. It is unclear what measures, if any, B&Q took
against Washington after she was served with the interrogatories and
request for admissions. But, as both parties acknowledge, Washington did
complete those documents, and as instructed, filed at least one of the forms
directly with the Douglas County Court. Filing 101 at 8.
Soon thereafter, Washington filed this lawsuit, claiming violations of
the NCPA and FDCPA. As discussed in more detail below, Washington
claims that B&Q routinely engages in abusive debt collection practices by (1)
incorrectly instructing pro se debtors that certain answers must be "filed" and
"sworn"; and (2) failing to inform debtors of their right to object to discoveryrelated inquiries as permitted under the Nebraska Rules of Discovery. See
filing 69. Based on those allegations, Washington moves for certification of
four plaintiff classes—two under the FDCPA, and two under the NCPA.
Filing 74. The Court will address Washington's motion for class certification
before turning to the parties' cross motions for summary judgment.
CLASS CERTIFICATION
As noted, Washington moves for certification of two FDCPA classes and
two NCPA classes. Filing 74. The proposed FDCPA classes—Class One and
Class Two—consist of pro se Nebraska residents who were sued by B&Q "
during the one year period prior to the filing of the complaint in this matter."
Filing 74 at 2. Those classes differ, according to Washington, only in the type
of violation alleged. In other words, Class 1 consists of pro se debtors who
were served by B&Q with requests for admissions "indicating that the

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recipient is to swear to the answers under oath and that the recipient's
responses are to be filed with the court[.]" Filing 74 at 2. Class Two, on the
other hand, consists of pro se debtors who were served by B&Q with "any
discovery which failed to inform the recipient of the right to object to any
discovery requests." Filing 74 at 2. The proposed NCPA classes—Class Three
and Class Four—are materially identical to those just described, but include
Nebraska residents who were sued by B&Q in the past four years, as opposed
to the past 12 months. Filing 74 at 1-2.
Fed. R. Civ. P. 23(a) permits class certification where: (1) the class is so
numerous that joinder of all members is impracticable (numerosity), (2) there
are questions of law or fact common to the class (commonality), (3) the claims
or defenses of the representative parties are typical of the claims or defenses
of the class (typicality), and (4) the representative parties will fairly and
adequately protect the interests of the class (adequate representation). The
primary issue here is numerosity—that is, whether Washington has shown
that each proposed class is sufficiently large so as to render joinder of all its
members impracticable in light of the particular circumstances of the case.
See Arkansas Educ. Ass'n v. Board of Educ. of Portland, Arkansas School
Dist., 446 F.2d 763, 765 (8th Cir. 1971).
Washington attempts to establish numerosity with broad references to
the volume of litigation B&Q files each year. Filing 75 at 20-21. She has also
attached a document which purports to reflect a "random sampling" of
approximately 600 cases filed by B&Q over a 4 year period. Filing 75 at 20;
filing 76-7. And of those 600 cases, she has identified 45 potential class
members—all of whom, Washington claims, fall into one of the four proposed
classes. See filing 75 at 20. But as B&Q points out, Washington has provided
no evidence that the 45 potential class members received the allegedly false

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and deceptive discovery underlying her claims. See filing 91 at 30-31. In fact,
the evidence suggests that many did not. See filing 97 at 33-34; filing 92-11;
filing 92-12; filing 92-14; filing 92-13; filing 92-15.
An extensive review of the record shows that, at most, 14 other
unrepresented debtors in a 12-month span potentially received the discovery
requests at the center of the parties' dispute. See filing 76-4 at 15. And while
Washington may disagree with that number, she has presented no evidence
to suggest otherwise. Rather, as described above, her evidence consists of 45
individuals who may, or may not, have been represented at the time they
received such documents, and who may, or may not, have been served with
the allegedly unlawful discovery requests. The Court finds that Washington
has failed to satisfy her burden as to Rule 23's numerosity requirement.
Even if numerosity was satisfied, however, Washington's motion would
still fail on Rule 23(a)'s second requirement, commonality, which requires her
to show that class members "have suffered the same injury." Powers v. Credit
Management Servs., Inc., 776 F.3d 567, 570 (8th Cir. 2015)(quoting Gen. Tel.
Co. v. Falcon, 457 U.S. 147, 157 (1982)). To that end, the Court is not
convinced that the resolution of Washington's substantive allegations would
produce a common answer "apt to drive the resolution of the litigation." WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). After all, as described
above, it is unclear what—if any—discovery materials the proposed class
members received, and whether they were represented by counsel 1 at the

1

As the Eighth Circuit recently emphasized, whether certain class members are

represented by counsel may be relevant to the commonality requirement of Rule 23(a).
Powers, 776 F.3d at 574. After all, the Court applies a "competent lawyer" standard—as
opposed to an "unsophisticated consumer" standard—to discovery requests sent to a
represented debtor during the course of litigation. Id.

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time they received such materials. So, even assuming that B&Q violated the
FDCPA and NCPA by engaging in the conduct alleged, individual inquiries
would still be required to resolve class members' claims. Powers, 776 F.3d at
571.
For those reasons (and the reasons that follow), the Court concludes
that Washington has failed to satisfy her burden, and that the prerequisites
of Rule 23(a) are not satisfied. Wal-Mart Stores, 564 U.S. at 350. Accordingly,
Washington's motion for class certification will be denied. The Court will,
therefore, examine the parties' cross-motions for summary judgment as they
apply to Washington individually.
SUMMARY JUDGMENT
Washington claims that B&Q's discovery requests are false, misleading
and unconscionable in two primary respects: (1) the discovery requests fail to
include information regarding the right to object; and (2) the requests for
incorrectly imply that answers must be "sworn" and "filed" with the court.
Filing 69 at 5. Washington suggests other deficiencies in the nearly 700 pages
of argument and evidence she has filed with the Court, but she does not
meaningfully press those arguments in the underlying motion for summary
judgment.
(A) Standard of Review
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City

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of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The existence of a mere scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
(B) FDCPA
Congress enacted the FDCPA to eliminate abusive debt collection
practices, to ensure that debt collectors who abstain from such practices are
not competitively disadvantaged, and to promote consistent state action to
protect consumers against debt collection abuses. Jerman v. Carlisle,
McNellie, Rini, Kramer & Ulrich, 559 U.S. 573, 577 (2010) (citing 15 U.S.C. §
1692(e)). To this end, the Act prohibits debt collectors from using "false,
deceptive, or misleading representation[s] or means in connection with the
collection of any debt." 15 U.S.C. § 1692(e). However, for liability to attach
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under the FDCPA, the defendant must be a "debt collector," which the Act
defines as "'any person . . . in any business the principal purpose of which is
the collection of any debts, or who regularly collects or attempts to collect . . .
debts owed or due or asserted to be owed or due another.'" Sheriff v. Gillie,
136 S. Ct. 1594, 1598 (2016) (quoting 15 U.S.C. § 1692(a)).
The defendants raise three arguments as to why, in their view,
Washington's claims fail as a matter of law. First, B&Q argues that
Washington has not suffered a concrete injury-in-fact, and that the Court
therefore lacks jurisdiction over her claims. Second, defendant Quandahl
claims that he is not a "debt collector" as that term is defined under the Act.
And third, the defendants argue that, even assuming Washington has Article
III standing, the alleged conduct does not amount to a violation of the
FDCPA. See filing 98; filing 99.
(i) Standing
Federal courts have subject-matter jurisdiction only over cases in which
the plaintiff "satisf[ies] the threshold requirement imposed by Article III of
the Constitution by alleging an actual case or controversy." City of Los
Angeles v. Lyons, 461 U.S. 95, 101 (1983). In other words, federal courts have
no jurisdiction over cases in which the plaintiff lacks standing to bring the
complaint. Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing has three
components. First, plaintiffs must show that they have suffered an injury-infact that is both concrete in nature and particularized to them. Allen v.
Wright, 468 U.S. 737, 755 (1984). Second, the injury must be fairly traceable
to defendants' conduct. Id. at 757. Third, the injury must be redressable—
relief "must be 'likely' to follow from a favorable decision." Id.
B&Q argues that the Court lacks jurisdiction over Washington's
FDCPA claims because she has not alleged a concrete injury in fact. Filing 98
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at 6, 15; see FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (burden on
plaintiff to allege sufficient facts to show jurisdiction). To support that
contention, B&Q notes that Washington—despite her alleged confusion—
properly submitted the discovery-related requests, and that judgment was
not entered against her in the state court matter. Filing 98 at 8-9; filing 97-2
at 17. It also notes that Washington, by her own admission, is not seeking
actual damages in the underlying litigation. Filing 97-3 at 3. Thus, B&Q
contends, because Washington has failed to allege an actual injury, the Court
should dismiss her FDCPA claims for lack of jurisdiction.
B&Q's argument is premised, in part, on the Supreme Court's recent
decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). In Spokeo, the
Supreme Court reiterated that, to establish Article III standing, the plaintiff
must suffer a concrete injury—that is, "de facto . . . it must actually exist." Id.
at 1548. And that requirement, the Supreme Court observed, demands more
than a "bare procedural violation" of a statutorily created right. Id. at 1549.
In other words, a plaintiff does not automatically satisfy the injury in fact
requirement "whenever a statute grants a person a statutory right and
purports to authorize that person to sue to vindicate that right." Id. at 1549.
Rather, Article III requires a concrete injury even in the context of a
statutory violation. Id.
But Washington has presented more than the "bare procedural
violation" discussed—and rejected—in Spokeo. Indeed, Washington has
presented evidence that she was, in fact, "confused by Defendants' discovery
instruction." Filing 76-1 at 2. And as a result of that confusion, Washington
filed her answers directly with the Douglas County Court—which, under
state law, may render those answers "judicial admissions." See City of
Ashland v. Ashland Salvage, Inc., 711 N.W.2d 861, 868-69 (Neb. 2006). In

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other words, Washington may now be prohibited from contesting any of the
responses that she filed, even though Nebraska law does not (and did not)
require her to do so. Id. ("an admission made in a pleading . . . is more than
an ordinary admission; it is a judicial admission and constitutes a waiver of
all controversy"); see Neb. Ct. R. Disc. § 6-326(g) ("discovery materials . . .
shall not be filed with the court"). For those reasons, the Court finds that
Washington has Article III standing to pursue her claims under the FDCPA.
B&Q's motion for summary judgment will be denied on those grounds.
(ii) Quandahl as "Debt Collector"
Defendant Quandahl moves for summary judgment, arguing that he is
not a "debt collector" as defined under the FDCPA. That argument is
premised on the contention that Quandahl, a founding partner of B&Q, had
resigned from the firm in December 2014—nearly 9 months before the
initiation of Washington's state court proceedings. See filing 97-7. And as
part of his resignation, Quandahl allegedly relinquished all financial interest
in the company, thereby divesting his status as a partner, shareholder,
officer, director or employee of the firm. Filing 97-7 at 1-3. Thus, Quandahl
argues, because he in no way participated in the allegedly deceptive conduct,
he cannot be held liable under the FDCPA. See filing 97-7 at 2-3; filing 97-6
at 2; filing 99 at 3.
But the record evidence suggests otherwise. Indeed, defendant
Brumbaugh testified that Quandahl does, in fact, continue to receive
payments from B&Q, and that he (Quandahl) has not been fully paid for his
shares in the company. Filing 105-2 at 1-2. Further, B&Q's 2016 tax
documents list Quandahl as the secretary and treasurer of the firm, and
expressly indicate that he is a current acting director. See filing 102-3 at 1618. And, while Quandahl claims to have had no involvement in Washington's
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state court proceedings, his bar identification number is listed as a signatory
on the allegedly false and misleading discovery requests. See filing 102-3 at
10-15. Based on that evidence, the Court cannot say, as a matter of law, that
Quandahl is not—and was not—a "debt collector" for purposes of FDCPA
liability. Accordingly, Quandahl's motion for summary judgment on these
grounds will be denied.
(iii) Discovery Requests
As discussed above, Washington claims that B&Q's discovery requests
were false or misleading in various respects. She takes particular issue with
the absence of language regarding pro se debtors' right to object and the
allegedly false instructions regarding how, and where, discovery answers
should be filed. The Court evaluates the allegedly false and misleading
nature of those documents through the eyes of an unsophisticated consumer.
Peters v. General Service Bureau, Inc., 277 F.3d 1051, 1055 (8th Cir. 2002).
Right to Object
In her amended complaint, Washington alleges violations of the
FDCPA based on B&Q's "[failure] to advise consumer defendants of the right
to object to all discovery requests." Filing 69 at 2. To that end, Washington
suggests that debt collectors, in issuing discovery requests, have an
affirmative duty to inform recipients of certain rights they possess under
state law. And by failing to do so, Washington argues, debt collectors may be
liable for false and misleading collection efforts.
Nebraska's Rules of Discovery clearly contemplate and allow for
discovery related objections. See Neb. Ct. R. Disc. § 6-336(a). But they do not
impose the type of affirmative obligation that Washington urges here. And
Washington has provided no support for her proposition that, by failing to

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include such language, B&Q necessarily engaged in abusive debt collection
practices. Indeed, such a requirement, at least on these facts, would compel
the type of "absurd result[]" that the Supreme Court has cautioned against in
FDCPA cases involving debt collection attorneys. Jerman v. Carlisle,
McNellie, Rini, Kramer & Ulrich, 559 U.S. 573, 600 (2010); see Powers, 776
F.3d at 570. B&Q's motion for summary judgment as to this alleged violation
will be granted.
As a final matter, Washington's raises a related argument regarding
"right to object" language in discovery forms that she did not personally
receive. Specifically, Washington points to a template interrogatory that she
uncovered during discovery in this case that informs recipients that
"[o]bjections may be made to any request for confidential information such as
bank account information, etc." Filing 101 at 30. According to Washington,
that language is "misleading and deceptive" because it incorrectly limits the
scope of material for which a pro se litigant may object. See filing 101 at 30.
But the Court need not, and will not, decide that issue here. As noted,
Washington did not personally receive that discovery request, and the
argument is not encompassed by the amended complaint.
"Sworn" and "Filed"
Washington next contends that B&Q's requests for admissions are
false, misleading, and unconscionable because they incorrectly imply that the
recipient's answers must be "sworn" and "filed." See filing 101 at 31-35. That
instruction is misleading, Washington argues, because it "suggests a greater
burden for unsophisticated Nebraska consumers." Filing 101 at 31. And it is
false, she says, because (1) there is no requirement that discovery responses
be "sworn," and (2) the Nebraska Rules of Discovery specifically instruct

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litigants not to file materials with the court. Filing 101 at 31-34; see Neb. Ct.
R. Disc. § 6-326(g).
There is no question that B&Q's "sworn" and "filed" directives are false
under Nebraska's Rules of Discovery. But as several courts have recognized,
and as B&Q emphasizes here, statements that are false "in some technical
sense" are inherently immaterial, and therefore not actionable under § 1692e.
Hahn v. Triumph P'ships LLC, 557 F.3d 755, 757-58 (7th Cir. 2009); see
Powell v. Palisades Acquisition XVI, LLC, 782 F.3d 119, 126 (4th Cir. 2014);
Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1034 (9th Cir. 2010); cf. Powers
v. Credit Mgmt. Servs., 776 F.3d 567, 571-72 (8th Cir. 2015). So, the operative
inquiry is whether the falsehoods are material in the sense that they
"frustrate a consumer's ability to intelligently choose his or her response."
Donohue, 592 F.3d at 1034; Palisades Acquisition XVI, LLC, 782 F.3d 119,
126 (4th Cir. 2014).
The Court finds that B&Q's instructions are materially false, and that
Washington is entitled to summary judgment on those grounds. As noted
throughout, B&Q's instructions incorrectly imply that, in order to comply
with discovery related procedures, the debtor must find a notary public and
then file their responses with the court. Those additional steps, which are not
required under Nebraska's Rules of Discovery, would undoubtedly frustrate
the consumer's ability to intelligently choose his or her response—that is,
whether to respond to the inquiries in the first place. Thus, it cannot be said,
as B&Q implies here, that the instructions "would not mislead the
unsophisticated consumer" or are otherwise "false in some technical sense."
Hahn, 557 F.3d at 758 (quoting Wahl v. Midland Credit Management, Inc.,
556 F.3d 643, 645-46 (7th Cir. 2009)). Washington's motion will be granted.

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General Denial & Response Date
As noted above, Washington makes broad references to other alleged
deficiencies with B&Q's discovery requests. For example, she argues that
B&Q acted improperly by asking her to admit matters that, Washington
claims, she had previously denied. See filing 69 at 5; filing 76-2 at 11.
Washington also claims that the discovery forms "failed to include
information regarding the response date [and] where the responses should be
sent." Filing 69 at 5.
But those arguments fail for at least two reasons. First, B&Q's
discovery documents clearly state that answers are required "within thirty
days of the service thereof[,]" and both contain information (as discussed
above) about where the answers should be sent. See filing 69-1; Birge v.
Smeall, 2013 WL 5789273, at *4 (D. Neb. 2013). Additionally, the Court has
found no authority to suggest that a debt collector is prohibited from seeking
admissions whenever a pro se debtor has filed a general denial to the
underlying complaint. That result would significantly undermine the purpose
of such pretrial discovery, which, as a general matter, is to "promote both
efficiency and economy in resolving disputes." 8B Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2252 (3d ed. 2010).2 And
that is particularly true here, where B&Q, prior to sending its request, had
no information on what, specifically, Washington was denying. Thus, because
B&Q's request for admissions was not false or misleading in the manner in

2

That is not to imply, of course, that requests for admissions are never false or misleading

in these circumstances. See McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d
939, 952 (9th Cir. 2011). But here, unlike McCollough, Washington was informed of the
consequences of not responding, and B&Q did not possess information that specifically
undermined its admission requests.

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Washington alleges, B&Q's motion for summary judgment on these grounds
will be granted.
(C) NCPA
Washington also alleges that B&Q's discovery requests violate the
NCPA as an "unfair or deceptive" act. But to be actionable under the NCPA,
the alleged misconduct must "affect the public interest." Nelson v. Lusterstone
Surfacing Co., 605 N.W.2d 136, 141 (Neb. 2000). In other words, an NCPA
claim requires a showing that not just one, but many Nebraska citizens are
affected by a defendant's practices. Eicher v. Mid Am. Fin. Inv. Corp., 748
N.W.2d 1, 12 (Neb. 2008). And here, because Washington is not entitled to
class certification on her claims, it does not appear that she can make that
showing.
But B&Q has not moved for summary judgment on these grounds. And
while a district court may grant summary judgment on grounds not raised by
a party, it must first provide the litigants with notice and a reasonable time
to respond. See Fed. R. Civ. P. 56(f)(2). Thus, while the Court is inclined to
grant B&Q summary judgment on the NCPA claims, Washington will be
provided until October 7, 2017 to show cause why summary judgment should
not be entered as to those claims. If no objection is filed, summary judgment
will be entered for B&Q, and against Washington, with respect to
Washington's claims under the NCPA.
(D) Motion for Contempt
B&Q moves for an order of contempt against Washington's counsel,
Pam Carr. Filing 113. That motion is premised on Carr's repeated references
in this litigation to a prior consent decree between the parties. According to
B&Q, Carr was advised, pursuant to a previous Court order, to "strike any all
references to [the consent decree]." Filing 114 at 2.
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The Court, too, is frustrated by the highly contentious nature of this
dispute, and the parties' failure, at times, to heed prior orders of the Court.
But upon full consideration of B&Q's argument, the Court is not convinced
that contempt is appropriate on these facts. That said, the Court will insist
that, in future proceedings, the parties tone down the persistent fingerpointing that often accompanies their briefing and argument. Such behavior
does nothing to advance the issues and arguments that actually matter, and
unnecessarily expands the already voluminous record.
(e) Conclusion
Therefore, B&Q is entitled to summary judgment on each of
Washington's FDCPA claims with the exception of Count I, which alleges
violations based on the "sworn" and "filed" language described above. With
respect to that claim, Washington is entitled to summary judgment, and
statutory damages in the amount of $1,000.
But it is unclear, at least at this point, if defendant Quandahl shares in
that liability. In other words, because genuine issues of material fact remain
as to whether Quandahl is or was a "debt collector," the Court is unable to
determine whether, if at all, Quandahl is liable. Accordingly, at this juncture,
the claims remaining for disposition are Washington's NCPA claims and her
claim against Quandahl based on the "sworn" and "filed" language of B&Q's
discovery request.
IT IS ORDERED:
1.

Washington's motion for class certification (filing 74) is
denied.

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2.

B&Q's motion to dismiss for failure to state a claim (filing
77) is denied as moot.

3.

B&Q's motion for summary judgment (filing 96) is granted
in part, and denied in part, as set forth above.

4.

Washington's motion for partial summary judgment (filing
100) is granted in part, and denied in part, as set forth
above.

5.

B&Q's motion for contempt (filing 113) is denied.

6.

Washington shall show cause, on or before October 7, 2017,
why summary judgment should not be entered as to her
NCPA claims.

7.

The Clerk of the Court shall enter a show cause deadline of
October 7, 2017.

8.

This matter is referred to the Magistrate Judge for case
progression as to Washington's remaining, unresolved
claim against Quandahl.

Dated this 19th day of September, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

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