Bassett v. Credit Bureau Services, Inc. et al

Filing 218

MEMORANDUM AND ORDER - that the parties' motions in limine (Filing Nos. 158 , 160 , 162 , 164 , 166 , 168 , and 174 ) are granted in part and denied in part as set forth in this order.Ordered by Senior Judge Joseph F. Bataillon. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KELLY M. BASSETT, individually and as
heir of James M. Bassett, on behalf of
herself and all other similarly situated;

8:16CV449

Plaintiff,

MEMORANDUM AND ORDER

vs.
CREDIT BUREAU SERVICES, INC., and C.
J. TIGHE,
Defendants.

This matter is before the Court on the defendants’ motions in limine, Filing No. 158,
160, 162, 164, 166, and the plaintiff’s motions in limine, Filing No. 168 and 174. This is a
class action for violations of the Fair Debt Collection Practices Act, (“FDCPA”) 15 U.S.C. §
1692 et seq., and the Nebraska Consumer Protection Act, Neb. Rev. Stat. § 59-1601 et seq.
(“NCPA”). 1
I.

LAW
Although the motion in limine is an important tool available to the trial judge to ensure

the expeditious and evenhanded management of the trial proceedings, performing a
gatekeeping function and sharpening the focus for later trial proceedings, some evidentiary
submissions, cannot be evaluated accurately or sufficiently by the trial judge in such a
procedural environment. Jonasson v. Lutheran Child and Family Servs., 115 F.3d 436, 440
(7th Cir. 1997). A motion in limine is appropriate for “evidentiary submissions that clearly
ought not be presented to the jury because they clearly would be inadmissible for any
purpose.” Id. In other instances, it is necessary to defer ruling until during trial, when the
1 Plaintiff’s Motion for Class Certification was granted on January 4, 2019. Filing No. 84; Bassett v. Credit
Bureau Servs., Inc., 2019 WL 112272 (D. Neb. Jan. 4, 2019). The parties agreed that 3,663 class members
will receive notice. Filing No. 107, Order at 1.

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trial judge can better estimate the impact of the evidence on the jury. Id. The Eighth Circuit
has noted that “[e]videntiary rulings made by a trial court during motions in limine are
preliminary and may change depending on what actually happens at trial.” Walzer v. St.
Joseph State Hosp., 231 F.3d 1108, 1113 (8th Cir. 2000). To the extent that a party
challenges the probative value of the evidence, an attack upon the probative sufficiency of
evidence relates not to admissibility but to the weight of the evidence and is a matter for the
trier of fact to resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996).
The focus of the FDCPA is on the conduct of the debt collector, not on the conduct of
the consumer. Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998). Accordingly, evidence of
other similar incidents is inadmissible and prejudicial. Haynes v. Coughlin, 79 F.3d 285,
291-293 (2d Cir. 1996). “The award of attorney fees is a matter for the judge not the jury.”
Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir. 1991).
II.

DISCUSSION
A.

Defendants’ motions
1.

Motion in limine to bar any evidence of other debt collection
activities or alleged FDCPA or NCPA violations (Filing No. 158).

Defendants assert that the only communication that is relevant in this case is Credit
Bureau Service’s letter dated March 14, 2016. Defendants move in limine to bar evidence
of Defendants’ other debt collection activities or alleged FDCPA and/or NCPA violations.
Defendants argue that such evidence of nonparty claims against these Defendants should
not be used to establish that the letter in this case violates the FDCPA/and or NCPA. The
defendants refer to two cases against Credit Bureau Services that involve strikingly similar
collection letters, namely, Reynolds v. Credit Bureau Services, 8:15-CV-00168 (D. Neb) and
Myers v. Credit Bureau Services, 8:20-CV-0041 (D. Neb).

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In response, the plaintiff argues that that these cases are relevant to damages and
such evidence and argument should be permitted. Under the FDCPA, the trier of fact can
consider certain enumerated factors, including the frequency and persistence of the debt
collectors’ noncompliance, the nature of the noncompliance, the resources of the debt
collector, the number of persons affected and the extent to which the debt collectors’
noncompliance was intentional in determining a damages award. 15 U.S.C. § 1692k.
The Court agrees with the plaintiff that the other case evidence may be relevant to
the issue of damages. At the least, the Reynolds proceeding is part of the factual predicate
for the events at issue. It is part of the story. Credit Bureau Services started using the
version of the letter at issue after it was sued for using a similar letter in the Reynolds case.
The letter at issue contains language arguably similar to that challenged in Reynolds. A
revised version of the letter at issue here is challenged in the pending Myers case.
The Court finds the letters at issue in the two other cases may be relevant to
damages, provided there is a showing of similarity. The defendants’ argument that any
alleged FDCPA noncompliance must be limited to the letter at issue would render the
“frequency and persistency of the violation” language on damages superfluous.
Accordingly, the Court finds the defendants’ motion in limine to exclude evidence of other
cases against the defendants should be denied.
The defendants also seek to preclude evidence or argument on collection activities
involving the Bassetts that do not arise out of the March 14, 2016, collection letter. The
Court finds the motion should also be denied as to that evidence. There is a question of fact
as to whether the initial correspondence with the Bassets is the letter at issue. Other
communications could be relevant to that determination. Also, other collection activities
could bear on the issue whether the letter’s lack of account numbers, patient names and
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dates of service cause confusion. The evidence may be subject to a limiting instruction, but
the Court cannot determine the parameters of any such instruction at this time. Accordingly,
the Court finds that portion of the defendants’ motion should also be denied at this time.
2.

Defendants’ motion in limine to bar any testimony, evidence, or
claim that Exhibit A violates 15 U.S.C. § 1692g(a) (Filing No.
160).

The defendant asserts that the plaintiff did not raise a 1692g claim in her complaint.
The Court found in earlier orders that the plaintiff’s allegations invoked a claim under that
subsection of the statute. See Filing No. 83, 84, and 194. The defendants cannot claim
surprise because the Court’s orders put them on notice more than two (2) years ago that the
plaintiff asserts an § 1692g claim. Accordingly, the Court finds the defendant’s motion in
limine should be denied.
3.

Defendants’ motion to exclude of any evidence and argument related
to practices of the debt collection industry (Filing No. 162)

Defendants argue that any industry-wide evidence is irrelevant, prejudicial, and
misleading. The Court agrees that evidence that does not relate to the conduct challenged
in this case is of little relevance to his action and has the potential to be unfairly prejudicial.
However, the DFCPA was enacted to combat abusive debt collection practices and
Congressional findings and the FDCPA’s declaration of the purpose address that fact. The
Court finds a limited reference to industry practices may be necessary to provide the jury
with necessary context. The background of industry practices may be relevant to the
determination of damages. The Court cannot ascertain the relevance of any such evidence
on a pretrial motion. Accordingly, the motion will be denied at this time without prejudice to
reassertion at trial.
4.

Defendants’ motion in limine to prohibit plaintiff from offering any
evidence, arguments, or comment about the financial condition of the
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parties, including, but not limited to, defendants’ net worth (Filing No.
164)
The parties have stipulated to net worth for purposes of capping damages. The
evidence is clearly appropriate for the purpose of ascertaining damages and will be admitted
only for that purpose. Accordingly, the defendants’ motion will be denied.
5.

Defendants Motion in Limine to prohibit plaintiffs from offering
evidence and arguments that she has alleged actual damages
including emotional distress (Filing No. 166).

The defendants contend that the plaintiff should be prohibited from adducing
evidence of actual damages because she denied any actual damages in answers to
interrogatories and requests for admission. The plaintiff concedes that she does not seek
actual damages on her own behalf, but initially stated that she seeks actual damages for the
class, consisting of interest and other charges improperly collected by defendants on
medical provider accounts. She has since clarified her position and that states she does not
seek actual damages for herself or the class she represents but embraces the notion that
she and the class sustained injuries without claiming damages. See Filing No. 185; Filing
No. 195. Accordingly, the defendants’ motion in limine will be denied as moot to the plaintiff’s
and class’s damages. The plaintiff’s and the class’s claims are not precluded for failure to
prove actual damages. With respect to the plaintiff’s decedent James Bassett’s damages,
it is not clear to the Court what damages are sought. The plaintiff states that she will limit
testimony at trial to testimony concerning the events of the Bassetts’ life during the months
relevant to this lawsuit—from March 2016 through Mr. Bassett’s passing. Filing No. 195 at
3. Accordingly, the Court will deny the defendant’s motion in limine at this time, without
prejudice to a timely objection at trial.
B.

Plaintiff’s Motions
1.

Motion in Limine (Filing No. 168).
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The plaintiff moves in limine for an order barring the defendants from: (a) referring to
or arguing that the Bassetts are deadbeats, criminals, opportunists or similar
characterizations; (b) mentioning that plaintiff, if successful in this litigation, may seek the
award of attorneys’ fees and costs of this litigation from the defendants; (3) mentioning that
the defendants’ financial viability since net worth of the Defendants has been agreed and
stipulated for purposes of this trial; (4) mentioning that the Bassetts were involved in previous
FDCPA litigation; and (5) mentioning that the plaintiff or her deceased husband have been
involved in previous litigation of any type.
The defendants state that they do not intend to illicit testimony or evidence pertaining
to an argument that the Bassetts are “deadbeats,” “criminals,” or “bad persons,” however,
they argue that testimony that the debts are the Bassetts’ debts and the Bassetts do not and
did not dispute that fact is relevant to this case. They contend that such evidence is
necessary to the jury’s understanding of the case. It appears the parties are in general
agreement concerning this motion.

The Court is unable to evaluate the relevance or

probative value of evidence the defendant intends to ellitic in a pretrial motion. Accordingly,
the motion will be denied at this time without prejudice to a timely objection at trial.
The plaintiff asks that the Court preclude the mention of a potential award of
attorneys’ fees should Ms. Bassett prevail in this case. Defendants contend that the attorney
fees evidence is relevant in only two circumstances:

when a plaintiff asserts that

maintenance of a class is necessary because the purported class members’ potential
recovery is low, thereby making it difficult for class members to retain counsel, and when
the jury should be informed that not to include attorney fees in the jury’s calculation of any
damages. See Filing No. 187, Defendants’ Brief at 2. In connection with that argument,
defendants contend that they believe that counsel should be free to question jurors in voir
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dire on how they would arrive at an award of actual damages and whether they would feel it
necessary to include attorneys’ fees in that award.

The Court disagrees. It appears that

actual damages will have little, if any, relevance in this case. The plaintiff does not seek
actual damages on her behalf or that of the class. See Filing No. 195, Plaintiff’s Notice at
1-2. The determination of attorney fees is a matter for the Court. Evidence or argument on
the topic in the presence of the jury would be appropriate only to rebut an inference that the
jury’s award could include attorney fees.

Depending on the evidence, a cautionary

instruction may be warranted. The Court thus finds that the plaintiff’s motion should be
denied without prejudice to reassertion should that circumstance arise.
The plaintiff next states she anticipates the defendants may adduce evidence of
financial condition to bolster an argument that a judgment in favor of the plaintiff would
bankrupt the company.

The parties have stipulated to Defendants’ net worth for

determination of statutory damages pursuant to 15 U.S.C § 1692k(a)(2)(B) of the FDCPA.
Filing No. 151. The defendants state they do not intend to introduce any evidence as to their
net worth. To the extent that evidence, testimony or argument is presented that attempts to
contradict or diminish the defendant’s net worth, it will not be allowed. However, evidence
pertaining to the size of the business of the number of employees is permissible background
information. Accordingly, the motion is granted in part and denied in part as set forth in this
order.
The plaintiff also asks the Court to preclude mention that the Bassetts have been
involved in previous litigation, including, but not limited to prior FDCPA litigation. The
defendants respond that such evidence is relevant to the plaintiff’s knowledge or level of
sophistication, if the plaintiff intends to use her own testimony as evidence of how an
unsophisticated, but reasonable consumer would have viewed the letter at issue. Further,
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defendants argue that, in the even the plaintiff adduces evidence of actual damages,
including emotional distress, the evidence of past lawsuits is relevant to prove that the
Bassetts’ alleged emotional distress damages were caused by the actions of another debt
collector rather than the defendants. The plaintiff indicates she does not claim actual
damages, so the issue is likely moot. The motion is therefore denied without prejudice to
reassertion at trial. The parties may raise a timely objection should any such situation arise.
2.

Motion in Limine (Filing No. 174)

The plaintiff moves to exclude any discussion of the defendants' challenge to class
certification in the presence of the jury.

The Court has ruled on the certification and

decertification issues and finds the motion should be granted. Class certification is an issue
exclusively reserved to the Court. See Fed. R. Civ. P. 23(c)(1)(A). Accordingly,
IT IS ORDERED that the parties’ motions in limine (Filing Nos. 158, 160, 162, 164,
166, 168, and 174) are granted in part and denied in part as set forth in this order.
Dated this 14th day of June 2020.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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