Linehan v. AllianceOne Receivables Management, Inc.

Filing 216

ORDER granting defendant Robert S. Friedman's 109 Motion to dismiss by U.S. District Judge John C Coughenour.(RS)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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TIMOTHY LINEHAN, on behalf of
Plaintiff and a class,

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Plaintiff,

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CASE NO. C15-1012-JCC
ORDER GRANTING MOTION TO
DISMISS

v.

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ALLIANCEONE RECEIVABLES
MANAGEMENT, INC.,

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Defendant.

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This matter comes before the Court on Defendant Robert S. Friedman’s notice of joinder,

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17 which the Court construes as a motion to dismiss (Dkt. No. 109). Having thoroughly considered
18 the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and
19 hereby GRANTS the motion for the reasons explained herein.
20 I.

BACKGROUND

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The facts underlying these consolidated cases have been set forth in multiple orders and

22 will not be repeated here. (See, e.g., Dkt. No. 162 at 2.) Defendant Robert Friedman now moves
23 to dismiss the claims against him by Plaintiffs Theresa Mosby, Kelsey Erickson, Marilynn
24 Cormier, Rebecca Foutz, and Renee Conroy. Friedman argues that (1) Plaintiffs’ claims under
25 the Fair Debt Collection Practices Act (FDCPA) are barred by the one-year statute of limitations
26 and (2) Plaintiffs’ claims under the Washington Consumer Protection Act (WCPA) fail as they

ORDER GRANTING MOTION TO DISMISS
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1 do not challenge the entrepreneurial aspects of his legal practice. (Id. at 2.)
2 II.

DISCUSSION

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A.

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A defendant may move for dismissal when a plaintiff “fails to state a claim upon which

Fed. R. Civ. P. 12(b)(6) Standard

5 relief can be granted.” Fed. R. Civ. P. 12(b)(6). To grant a motion to dismiss, the Court must be
6 able to conclude that the moving party is entitled to judgment as a matter of law, even after
7 accepting all factual allegations in the complaint as true and construing them in the light most
8 favorable to the non-moving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
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B.

Judicial Notice

On a motion to dismiss, the Court typically looks only to the face of the complaint. Van

11 Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). However, at any stage
12 of the proceeding, the Court may judicially notice a fact that is not subject to reasonable dispute
13 because it can be accurately and readily determined from sources whose accuracy cannot
14 reasonably be questioned. Fed. R. Evid. 201(b)(2), (d). The Court must take such notice if a party
15 requests it and supplies the Court with the necessary information. Fed. R. Evid. 201(c)(2).
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Friedman asks the Court to take judicial notice of “pleadings in the King County District

17 Court, showing all collection case filings by Mr. Friedman on behalf of Merchants Credit Corp.”
18 (Dkt. No. 109 at 2-3.) According to Friedman, a “search of the King County District Court
19 docket reveals that Mr. Friedman filed no collection complaints on behalf of Merchants Credit
20 Corp. within one year of July 28, 2015, the date the initial Complaint was filed.” (Id. at 2.)
21 Generally speaking, public court records fall within a category of documents whose accuracy
22 cannot be reasonably questioned. However, Friedman failed to actually produce the court records
23 he asks the Court to judicially notice. Instead, he maintains that he has “supplied the necessary
24 information for this Court to ascertain that Friedman has not brought a legal action in violation of
25 the FDCPA within the statute of limitations.” (Dkt. No. 58 at 3.)
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The Court disagrees. “[T]he Court will not rummage through the Court files and take

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1 notice of those documents requested absent those documents being supplied to the Court. It is not
2 this Court’s function to lay a record for the lawyers involved in this case.” In re Tyrone F.
3 Conner Corp., 140 B.R. 771, 782 (E.D. Cal. 1992). “In other words, invocation of Fed.R.Evid.
4 201(d) does not relieve a party of the duty to gather, organize, and present evidence to the court.”
5 In re Hillard Development Corp., 238 B.R. 857, 864 (S.D. Fla. 1999). Although these cases are
6 not binding, the Court finds their analysis sensible and persuasive and adopts it on these facts.
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Friedman may very well be correct that he has not filed a collection suit against Plaintiffs

8 within the last year. However, without providing trustworthy documentation to establish the
9 verity of his assertion, Friedman essentially asks the Court to judicially notice his self-serving
10 statement. This is not an appropriate use of Rule 201. The Court further rejects Friedman’s
11 suggestion that it is the Court’s burden to comb the records of a separate court system to
12 determine whether his assertion is legitimate.
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The Court likewise denies Plaintiffs’ request for the Court to judicially notice an e-mail

14 sent between King County District Court judges, which states that “Friedman is still associated
15 with Merchants and does the in court work” and “signs off on orders in court on behalf of
16 Merchants.” (See Dkt. No. 54 at 5; Dkt. No. 55-1 at 33.) While the fact that this e-mail was sent
17 is not subject to reasonable dispute, the contents thereof—written by a third party not under
18 oath—do not have the same reliability. Again, the statement may very well be true. Still, judicial
19 notice is not the appropriate vehicle for establishing that fact.
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However, the Court does judicially notice the remaining documents submitted by

21 Plaintiff, which consist of filings from the King County District Court. These documents pertain
22 to two collection cases filed on Merchants’ behalf, one on August 6, 2014 and one on January
23 21, 2015. (Dkt. No. 55-1 at 2, 17.) None of the initial filings were signed by Friedman. (Id. at 4,
24 7, 19, 22.) However, Friedman did sign the ultimate credit judgments in both cases on April 14,
25 2015. (Dkt. No. 55-1 at 15, 31.)
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ORDER GRANTING MOTION TO DISMISS
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C.

FDCPA: Statute of Limitations

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Although the Court declines to accept as fact that Friedman has not filed a motion within

3 the last year, the Court notes that Plaintiffs’ complaint merely alleges that Friedman filed a debt
4 collection suit within the last four years. (Mosby, et al. v. Merchants Credit Corp., et al., C155 1196, Dkt. No. 89 at 8.) The FDCPA establishes that “[a]n action to enforce any liability created
6 by this subchapter may be brought . . . within one year from the date on which the violation
7 occurs.” 15 U.S.C. § 1692k(d). Thus, the Court finds it appropriate to consider Friedman’s
8 argument that the one-year statute of limitations bars suit against him.
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This question turns on the interpretation of “brings any legal action” under 15 U.S.C.

10 § 1692i(a). Friedman maintains that this language plainly means the initiation of legal
11 proceedings. (Dkt. No. 58 at 4.) Plaintiffs seek a broader interpretation that encompasses “any
12 motions work by Friedman on matters in which his signature does not appear on the summons
13 and/or complaint.” (Dkt. No. 54 at 9.) Under Plaintiffs’ interpretation, Friedman’s April 2015
14 signature on the credit judgments would constitute actionable conduct within the limitations
15 period.
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When interpreting a statute, the Court looks first to its plain language. HomeStreet, Inc. v.

17 Dep’t of Revenue, 210 P.3d 297, 300 (Wash. 2009). “If the plain language is subject to only one
18 interpretation, our inquiry ends because plain language does not require construction.” Id. “When
19 the words in a statute are clear and unequivocal, this court is required to assume the Legislature
20 meant exactly what it said and apply the statute as written.” Duke v. Boyd, 942 P.2d 351, 354
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Here, the Court need look no further than the plain language of the statute. Understood

23 sensibly, “brings any legal action” means the act of initiating a lawsuit. Indeed, per Black’s Law
24 Dictionary, to “bring an action” is “[t]o sue; institute legal proceedings.” This interpretation
25 particularly makes sense in the context of § 1692i: it is the initiation of suit that determines the
26 forum location, and it is the forum location that Congress sought to regulate. Moreover, had

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1 Congress intended to provide more expansive coverage, it could have included language to that
2 effect.
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Plaintiffs further argue that, even if the Court interprets the statute as such, it should still

4 find that Friedman was jointly and severally liable. (Dkt. No. 54 at 10.) But, as Plaintiffs’ own
5 authority establishes, joint and several liability “may be imposed where the defendant sought to
6 be held liable personally engaged in the prohibited conduct.” Krapf v. Professional Collection
7 Servs., Inc., 525 F. Supp. 2d 324, 327 (E.D.N.Y. 2007) (emphasis added). Said another way, one
8 cannot be jointly and severally liable without being individually liable.
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Finally, Plaintiffs cite Riley v. Giguiere, 631 F. Supp. 2d 1295 (2009), arguing that it

10 stands for the proposition that “under the FDCPA, liability can be imposed against an attorney
11 that takes on a case started by another attorney.” (Dkt. No. 54 at 11.) While this statement is
12 technically true, it effectively expands Riley’s holding. In that case, the plaintiff alleged that the
13 defendant attorney committed abusive, misleading, and unfair practices under 15 U.S.C.
14 §§ 1692d, 1692e, and 1692f. Riley, 631 F. Supp. 2d at 1304. Specifically, the plaintiff alleged
15 that the defendant sought default judgment in a case where she knew the complaint and
16 summons had not been properly served by another attorney. See id. at 1309-10. The court found
17 that the evidence of the defendant’s knowledge was sufficient to defeat summary judgment. Id. at
18 1310. In sum, while the defendant attorney’s own violations were informed by the misdeeds of
19 another, Riley does not establish that an attorney can be held liable solely for another attorney’s
20 violation of the FDCPA.
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Accordingly, the Court concludes that Plaintiffs have not pleaded an adequate FDCPA

22 claim against Friedman.
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D.

WCPA: Entrepreneurial Aspects of Legal Practice

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Without the FDCPA violation to establish a per se WCPA claim, see Panag v. Farmers

25 Ins. Co. of Wash., 204 P.3d 885, 897 (Wash. 2009), the Court turns to the specific merits of
26 Plaintiffs’ WCPA claims. WCPA claims against attorneys are limited to “certain entrepreneurial

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1 aspects of the practice of law,” such as “how the price of legal services is determined, billed, and
2 collected and the way a law firm obtains, retains, and dismisses clients.” Short v. Demopolis, 691
3 P.2d 163, 168 (Wash. 1984). Claims “directed to the competence of and strategy employed by
4 [lawyers] amount to allegations of negligence or malpractice and are exempt from the [W]CPA.”
5 Id.
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Plaintiffs allege that they challenge Friedman’s entrepreneurial practices, because

7 “Friedman is a debt collector who brought debt collection cases in [King County District Court]
8 for Merchants” and “was able to secure default judgments [which] are enforced on a continuing
9 basis by Friedman.” (Dkt. No. 54 at 14.) This argument does not hold water. The challenged
10 conduct relates squarely to Friedman’s representation of his client, as opposed to the financial
11 management of his firm. Thus, Plaintiffs’ claims are based on conduct that is not actionable
12 under the WCPA.
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CONCLUSION

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For the foregoing reasons, Friedman’s motion to dismiss (Dkt. No. 109) is GRANTED.

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DATED this 13th day of October 2016.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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