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

Filing 33

MEMORANDUM AND ORDER that Defendants' motion to dismiss (Filing No. 19 ) is granted in part and denied in part. Plaintiff's motion to consolidate (Filing No. 22 ) is denied. Plaintiff's motion for citation of contempt (FilingNo. 25 ) is denied. Ordered by Senior Judge Lyle E. Strom. (LAC)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
TAMERRA F. WASHINGTON, on
behalf of herself and all
others similarly situated,

)
)
)
)
Plaintiff,
)
)
v.
)
)
BRUMBAUGH & QUANDAHL, P.C.,
)
LLO., KIRK E. BRUMBAUGH, and )
MARK QUANDAHL,
)
)
Defendants.
)
______________________________)

8:15CV444

MEMORANDUM AND ORDER

This matter is before the Court on three motions.
Filing Nos. 19, 22, and 25.

See

The defendants, Brumbaugh &

Quandahl, P.C., LLO., Kirk E. Brumbaugh, and Mark Quandahl
(hereinafter “defendants”), move to dismiss (Filing No. 19).
Plaintiff Tamerra F. Washington, on behalf of herself and all
others similarly situated (hereinafter “plaintiff” or
“Washington”), seeks to consolidate the above-captioned case with
Birge v. Brumbaugh & Quandahl, P.C., LLO, Kirk E. Brumbaugh, Mark
Quandahl, Sara E. Miller, and Midland Funding, LLC, 8:13CV8
(Filing No. 22), and for an order for citation of contempt
against defendants (Filing No. 25).

After review of the motions,

the parties’ briefs, and the applicable law, the Court finds as
follows.

BACKGROUND
Plaintiff filed this putative class action on December
11, 2015.

The complaint alleges violations of the Fair Debt

Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq.,
the Nebraska Consumer Protection Act (“NCPA”), Neb. Rev. Stat.
§§ 59-1601 et seq., and a “violation of a previous court order.”
(Filing No. 1 at 1).

Plaintiff argues defendants’ actions and

“routine practice” of serving interrogatories and requests for
admission with instructions to pro se litigants that answers be
“sworn” and “filed” violates the FDCPA, the NCPA, and a previous
court order.

See Filing No. 1.

Almost two years before the present suit was filed,
this Court issued a Final Order and Judgment in Birge v.
Brumbaugh & Quandahl, P.C., LLO, Kirk E. Brumbaugh, Mark
Quandahl, Sara E. Miller, and Midland Funding, LLC, 8:13CV8.

The

order approved the parties’ class action settlement agreement and
incorporated the agreement into the final order (Filing No. 1-5).
As part of the settlement agreement, the defendants to that suit
agreed “that Brumbaugh & Quandahl P.C., LLO will no longer send
Requests for Admission . . . indicating the recipient is to swear
to the answers under oath and/or that the recipient’s responses
are to be filed with the court.”

(Filing No. 1-2 at 11).

agreement also required that in both the introduction and
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The

discovery request itself “all written discovery served upon
unrepresented [litigants would] contain language advising . . .
of the deadline for responding to the discovery and where the
responses should be sent.”

(Id.)

Finally, the discovery would

also include language “advising the recipient of the right to
object to the discovery requests . . . stating that . . .
objecting to all or a portion of the discovery [would] not result
in judgment being entered automatically against the recipient.”
(Id.)
The present action arises from Washington’s default on
her car payments.

Plaintiff financed a 2004 Volkswagon

automobile through Credit Acceptance Corporation (Filing No. 20
at 2).

On December 18, 2015, after plaintiff fell into default

on the payments, defendants brought suit on behalf of Credit
Acceptance Corporation in Douglas County Nebraska to collect on
the debt.

(Id. at 2-3).

Plaintiff alleges that “[o]n October 1,

2015, [d]efendants served county court discovery on [p]laintiff
. . . (who was not a member of the Birge class), which did not
comply with terms of the Birge Settlement Order.”
at 1-2).

(Filing No. 21

Plaintiff “acting as a pro se litigant, was confused

and misled in violation” of the FDCPA and NCPA “by [d]efendants’
discovery as [d]efendants had not made the required changes.”
(Id. at 2).
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Defendants filed their motion to dismiss on January 20,
2016.

Defendants’ motion contends that “plaintiff is improperly

asserting violation of a consent decree as a basis of her
separate causes of action,” and fails to state a claim upon which
relief can be granted.

See Filing No. 20 at 4, 15-21.

On

February 14, 2016, plaintiff filed a motion to consolidate the
instant action with the closed Birge case (Filing No. 22).

A few

days later, on February 18, 2016, the plaintiff also filed a
motion for an order for citation of contempt against the
defendants for alleged violations under the terms of the Birge
Final Order and Judgment (Filing No. 25).
LAW
I. Motion to Dismiss Under Federal Rule of Civil Procedure 12
A federal district court must first address “the
threshold question whether [plaintiff has] alleged a case or
controversy within the meaning of Art. III of the Constitution or
only abstract questions not currently justiciable by a federal
court.”

Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289,

297, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979).

“[T]he complaint

must contain more than bald assertions of injury to survive a
motion to dismiss . . . .”

Burton v. Cent. Interstate Low-Level

Radioactive Waste Compact Comm’n, 23 F.3d 208, 210 (8th Cir.

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1994).

“To show Article III standing, a plaintiff has the burden

of proving:

(1) that he or she suffered an ‘injury-in-fact,’

(2) a causal relationship between the injury and the challenged
conduct, and (3) that the injury likely will be redressed by a
favorable decision.”

Steger v. Franco, Inc., 228 F.3d 889, 892

(8th Cir. 2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)).
Determining whether a complaint states a plausible
claim for relief is “a context-specific task” that requires a
court “to draw on its judicial experience and common sense.”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009)).

Federal Rule of Civil

Procedure 8 requires a complaint to present “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

“[A] complaint must contain

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

Braden, 588 F.3d at 594

(quoting Iqbal, 556 U.S. at 677-78) (citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007)).

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 556 U.S. at 678.

When considering a motion to dismiss under Rule
12(b)(6), well-pled allegations are considered to be true and are
viewed in the light most favorable to the plaintiff.
F.3d at 591, 595.

Braden, 588

In viewing the facts in the light most

favorable to the plaintiff, the Court must determine whether the
complaint states any valid claim for relief.

Jackson Sawmill Co.

v. United States, 580 F.2d 302, 306 (8th Cir. 1978).

Recitations

of elements of a cause of action with mere conclusory statements
fail to meet Rule 8’s pleading requirements.
678.

Iqbal, 556 U.S. at

However, plaintiffs may use legal conclusions to provide

the framework of a complaint, so long as factual allegations
support those legal conclusions.

Id. at 678-79.

Thus, a

dismissal is likely “only in the unusual case in which a
plaintiff includes allegations which show on the face of the
complaint that there is some insuperable bar to relief.”

Jackson

Sawmill, 589 F.2d at 306.
II. Motion to Consolidate Under Federal Rule of Civil Procedure
42
Federal Rule of Civil Procedure 42 allows for
consolidation of cases “[i]f actions before the court involve
common questions of law or fact.”

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Fed. R. Civ. P. 42(a).

“Consolidation of issues and claims is committed to the
discretion of the trial court.”
543, 551 (8th Cir. 1998).

E.E.O.C. v. HBE Corp., 135 F.3d

However, “[c]ourts are reluctant to

consolidate a pending case with a case where a final judgment has
been entered, unless the final judgment is first vacated.”
Shelton v. MRIGlobal, No. 11-cv-02891-PAB-MJW, 2014 WL 793464, at
*2 (D. Colo. February 26, 2014).

See also Harden v. Metropolitan

Life Insurance Co., No. 4:06-CV-236 GTE, 2007 WL 2893392, at *8
n.9 (E.D. Ark. Sept. 27, 2007) (“a closed case cannot be
consolidated with an open case . . . .”).
III. Motion for Citation of Contempt Under Federal Rule of Civil
Procedure 70
Rule 70 provides means for “enforcing a judgment for a
specific act.”
states:

Fed. R. Civ. P. 70.

Subsection (e) of Rule 70

“[t]he court may also hold the disobedient party in

contempt.”

Fed. R. Civ. P. 70(e).

“Civil contempt is designed

to force the contemnor to comply with an order of the court.”
Willy v. Coastal Corp., 503 U.S. 131, 139, 112 S. Ct. 1076, 117
L. Ed. 2d 280 (1992).

The United States Supreme Court has

determined that courts ought to apply the doctrine of “‘the least
possible power adequate to the end proposed’” when exercising
their inherit authority to hold parties in contempt.

Shillitani

v. United States, 384 U.S. 364, 371, 86 S. Ct. 1531, 16 L. Ed. 2d

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622 (1966) (quoting Anderson v. Dunn, 6 Wheat. 204, 231, 5 L. Ed.
242 (1821); In re Michael, 326 U.S. 224, 227, 66 S. Ct. 78, 90 L.
Ed. 30 (1945)).

Trial courts have discretion in granting or

denying contempt orders.

See Chicago Truck Drivers v.

Brotherhood Labor Leasing, 207 F.3d 500, 504 (8th Cir. 2000).
“The party moving for contempt sanctions bears the burden of
proving facts warranting a civil contempt order by clear and
convincing evidence.”

Chicago Truck Drivers, 207 F.3d at 504

(citing Independent Fed’n of Flight Attendants v. Cooper, 134
F.3d 917 (8th Cir. 1998)).
DISCUSSION
I. Motion to Dismiss
Defendants’ motion to dismiss will be granted in part
and denied in part.

To the extent plaintiff asserts a violation

of the Court’s Final Order and Judgment in Birge, the Court finds
plaintiff lacks standing to assert such a claim and therefore it
will be dismissed.

Plaintiff argues the Final Order and Judgment

in Birge is not a consent decree (Filing No. 21 at 8-9).
Plaintiff reasons “[n]either the recording of the settlement
terms on the record nor any of the Birge settlement documents
contemplated or in any way refer to a ‘consent decree.’” (Id. at
9) (internal citations omitted).

Plaintiff further argues “a

‘consent decree’ is a decision by the federal trade commission,
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or other governmental agency, which is enforced via that entity.”
(Id. at 26).

The Court disagrees.

“A consent decree . . .

embodies an agreement of the parties . . . [and] is an agreement
that the parties desire and expect will be reflected in, and be
enforceable as, a judicial decree that is subject to the rules
generally applicable to other judgments and decrees.”

Rufo v.

Inmates of Suffolk County Jail, 502 U.S. 367, 378, 112 S. Ct.
748, 116 L. Ed. 2d 867 (1992) (citing Railway Employes v. Wright,
364 U.S. 642, 650-51, 81 S. Ct. 368, 5 L. Ed. 2d 349 (1961)).
See also Minnesota v. CMI of Kentucky, Inc., Civil No. 08-603
(DWF/AJB), 2009 WL 5216841, at *1 (D. Minn. Feb. 9, 2009)
(discussing requirements of consent decrees).

Although not

specifically referred to or entitled as a consent decree, the
Birge Final Order and Judgment contains the requisite elements of
a consent decree and should and will be considered as such by the
Court.
The Court’s finding that the Final Order and Judgment
in Birge is a consent decree leads to the conclusion that
plaintiff lacks standing to enforce the agreement.

“[A] well-

settled line of authority from [the United States Supreme] Court
establishes that a consent decree is not enforceable directly or
in collateral proceedings by those who are not parties to it even
though they were intended to be benefited [sic] by it.”
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Blue

Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750, 95 S. Ct.
1917, 44 L. Ed. 2d 539 (1975) (citing United States v. Armour &
Co., 402 U.S. 673, 91 S. Ct. 1752, 29 L. Ed. 2d 256 (1971);
Buckeye Coal & R. Co. v. Hocking Valley Co., 269 U.S. 42, 46 S.
Ct. 61, 70 L. Ed. 155 (1925)).

Because plaintiff was not a party

to the Birge action, plaintiff lacks standing to assert
defendants’ alleged violation of the Birge Final Order and
Judgment even if the Court accepts as true her contention that
she is a third-party beneficiary.

Defendants’ motion to dismiss

will be granted with respect plaintiff’s claim that defendants
are in violation of a previous court order.
After a thorough review of the record, the Court will
deny defendants’ motion to dismiss plaintiff’s FDCPA and NCPA
claims.

The Court finds the complaint satisfies the standard

required under the federal rules with respect to those claims.
II. Plaintiff’s Motions
Plaintiff’s motion to consolidate and motion for
citation of contempt will both be denied.
closed.

The Birge action is

There are no matters currently pending in that case.

The Court will not allow plaintiff to use the present action as a
vehicle to open a case that has been closed since February of
2014.

Because the Court finds that plaintiff lacks standing to

assert defendants’ alleged violation of the Birge Order and will
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deny plaintiff’s motion to consolidate, the motion for citation
of contempt will likewise be denied.
IT IS ORDERED:
1) Defendants’ motion to dismiss (Filing No. 19) is
granted in part and denied in part.
2) Plaintiff’s motion to consolidate (Filing No. 22) is
denied.
3) Plaintiff’s motion for citation of contempt (Filing
No. 25) is denied.
DATED this 11th day of April, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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