Kubiak v. Shannon et al

Filing 24

DECISION AND ORDER signed by Judge Lynn Adelman on 9/17/15 that the defendants motion to dismiss is GRANTED, and that the complaint and this action are DISMISSED. Any claims based on injuries caused by state-court judgments are dismissed for lack o f jurisdiction. All other claims are dismissed on the merits. Further ordering that plaintiffs petition to proceed in forma pauperis is DENIED as MOOT. Further ordering that plaintiffs motion for default judgments is DENIED. The Clerk of Court shall enter final judgment. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MALGORZATA KUBIAK,
Plaintiff,
v.

Case No. 15-C-0813

THOMAS P. SHANNON, BRUCE
O’NEILL, and FOX, O’NEILL & SHANNON, S.C.
Defendants.

DECISION AND ORDER
In recent years, Malgorzata Kubiak, an Illinois resident, has been initiating frivolous
legal proceedings in the United States District Court for the Northern District of Illinois. On
January 15, 2015, the Executive Committee of that court noted her history of filing frivolous
actions and added her to its list of restricted filers, meaning that she cannot institute new
civil actions in that district without the executive committee’s permission. See In re
Malgorzata Kubiak, N.D. Ill. Case No. 15-CV-0353. No longer able to file frivolous suits in
federal court in the Northern District of Illinois, Kubiak turned to the Eastern District of
Wisconsin. Earlier this year, Kubiak attempted to remove a case pending in Cook County,
Illinois, to this district. See Peterson v. Kubiak, E.D. Wis. Case No. 15-C-0751. A judge
of this court quickly remanded the case on the ground that 28 U.S.C. § 1441(a) does not
permit a party to remove an Illinois case to a Wisconsin federal court. Id. at ECF No. 7
(Order of June 30, 2015).
Shortly after the judge remanded the Cook County case, Kubiak filed the complaint
in the present action, which is the latest in her series of frivolous filings. The complaint
purports to state claims under the Fair Debt Collection Practices Act (“FDCPA”) against two

lawyers, Thomas Shannon and Bruce O’Neill, and their law firm, Fox, O’Neill & Shannon,
S.C. Along with her complaint, Kubiak filed a petition to proceed in forma pauperis under
28 U.S.C. § 1915. One of the defendants, Shannon, filed a response to the petition and
contends that Kubiak’s allegation of poverty is untrue. That defendant later filed a motion
to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.
R. Civ. P. 12(b)(6), and for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1).
Kubiak, in turn, filed a motion for default judgments against all three defendants.
The complaint consists largely of conclusory allegations and insults directed at the
defendants and the Illinois state courts. In determining whether the complaint states a
claim,1 I disregard these allegations. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009). The complaint’s few concrete factual allegations reveal that this suit is an attempt
by Kubiak to avoid paying a judgment entered against her by the circuit court in Waukesha
County, Wisconsin. See Peterson v. Kubiak, Waukesha County Circuit Court Case No.
13-CV-2669.2 In that suit, Shannon and O’Neill represented Leigh Peterson, who alleged
that Kubiak was liable to her for failing to repay a $100,000 loan. The complaint in that suit

1

Although only Shannon has filed a motion to dismiss, I will review the complaint to
determine whether it states a claim against any defendant. I do this because the complaint
consistently refers to all three defendants collectively as “co-defendants.” Thus, if the
claims against Shannon must be dismissed, the claims against the remaining defendants
must also be dismissed. Moreover, the statute governing proceedings in which a plaintiff
has requested leave to proceed in forma pauperis allows me to dismiss claims against a
defendant without waiting for a motion from that defendant. See 28 U.S.C. § 1915(e)(2).
2

In addition to the allegations of the complaint, I will consider the court records filed
in Waukesha County and in Illinois. I may consider such documents in connection with a
motion to dismiss for failure to state a claim without treating the motion as one for summary
judgment. See Fed. R. Civ. P. 12(d); Ennenga v. Starns, 677 F.3d 766, 773–74 (7th Cir.
2012).
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was filed on November 21, 2013. On June 10, 2014, the court entered judgment in favor
of Peterson and against Kubiak in the amount of $103,240.52.
On June 25, 2014, Peterson, still represented by the defendants, registered the
Waukesha judgment in Illinois. See Cook County Circuit Court Case No. 2014-L-050491.
Kubiak removed that case to the Northern District of Illinois, which remanded the case back
to Cook County. Kubiak appealed the remand order to the Seventh Circuit, but that court
dismissed for lack of jurisdiction.
On September 23, 2014, in an effort to collect the Waukesha judgment, Peterson
filed a garnishment in the Cook County action. She named Kubiak’s employer as the
garnishee. Kubiak filed motions opposing the garnishment, which were denied. Kubiak
then removed the garnishment action to the Northern District of Illinois. See Peterson v.
Kubiak, N.D. Ill. Case No. 14-CV-9003. The Northern District of Illinois remanded the case
back to Cook County on March 18, 2015. Kubiak appealed the remand order to the
Seventh Circuit, and the Seventh Circuit dismissed the appeal for lack of jurisdiction. Back
in state court, Kubiak filed a motion to reconsider in the garnishment action; the motion
was denied. Kubiak appealed that ruling to the Illinois Appellate Court, and the appeal is
pending. In addition, she tried to remove the garnishment action to the Northern District
of Illinois a second time, but was prevented from doing so by the Executive Committee’s
order. She then removed the case to this court but, as noted, a judge of this court quickly
remanded the case to Cook County.
Kubiak filed the complaint in the present action on July 6, 2015. The complaint is
framed in terms of several “counts,” but all counts are variations on the same theme: that
the defendants violated the FDCPA by prosecuting the Waukesha County action and by
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attempting to collect the judgment awarded in that action. For several reasons, I conclude
that Kubiak has not stated FDCPA claims against the defendants.3
Kubiak’s primary claim is that the defendants violated the FDCPA by alleging in the
Waukesha County lawsuit that she was the one who was indebted to Peterson. See
Compl. ¶¶ 5–7. According to Kubiak, Peterson made the loan to a third party, Howard
Leventhal.4 Kubiak alleges that the defendants knew that it was Leventhal who borrowed
the money but decided to file suit against her instead. Kubiak claims that the defendants’
actions in prosecuting the Waukesha County lawsuit resulted in them making false or
misleading representations in connection with the collection of Peterson’s debt, in violation
of 15 U.S.C. § 1692e.5 This claim must be dismissed under the Rooker-Feldman doctrine,
which applies when a state court's judgment is the source of the injury of which the plaintiff
complains in federal court. Harold v. Steel, 773 F.3d 884, 885 (7th Cir. 2014). Here, the

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In her complaint, Kubiak makes reference to state-law tort theories such as
defamation, malicious prosecution, and abuse of process, but it is not clear whether she
intended to assert claims under state law. In any event, because Kubiak has failed to state
a federal claim, I would decline to exercise supplemental jurisdiction over any state claims.
See 28 U.S.C. § 1367(c)(3).
4

Leventhal is Kubiak’s ex-husband. He, like Kubiak, has a history of filing frivolous
suits and is barred from filing civil cases in the Northern District of Illinois without
permission from that court’s Executive Committee. See In re Howard Leventhal, N.D. Ill.
Case No. 15-CV-0352. Leventhal has also pleaded guilty to wire fraud and aggravated
identity theft in a case pending in the Eastern District of New York. See United States v.
Leventhal, E.D.N.Y. Case No. 13-CR-000695.
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For the defendants to be liable under the FDCPA, they must fit the Act’s definition
of “debt collector.” 15 U.S.C. § 1692a(6). A lawyer who “regularly” tries to collect
consumer debts fits that definition. Heintz v. Jenkins, 514 U.S. 291 (1995). The complaint
alleges in conclusory fashion that the defendants regularly engage in debt collection.
Compl. ¶ 2. However, the defendants deny that they do so. For purposes of the motion
to dismiss, I assume without deciding that Kubiak has adequately alleged that the
defendants are debt collectors.
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Waukesha County court entered judgment in favor of Peterson and against Kubiak, and
in doing so it necessarily determined that Kubiak, not Leventhal, is the person who is
indebted to Peterson.

Any injury that Kubiak suffered because of the defendants’

representations that she is the debtor is thus traceable to the Waukesha judgment. For
this reason, any claim based on the defendants’ allegedly false statements in the
Waukesha action is barred by the Rooker-Feldman doctrine. See id. at 885–87 (FDCPA
claim alleging injury caused by false statements made during state-court proceeding that
resulted in judgment against FDCPA plaintiff is barred by Rooker-Feldman). The RookerFeldman doctrine is jurisdictional, and therefore I must dismiss this claim for lack of
subject-matter jurisdiction.
Kubiak also alleges that the defendants violated the debt-validation provisions of the
FDCPA, 15 U.S.C. § 1692g, by filing the Waukesha County lawsuit without providing her
with the written notice required by those provisions. Compl. ¶¶ 31–32. However, because
the complaint in the Waukesha action was filed more than one year before Kubiak filed this
action, any claim based on the contents of that complaint is barred by the FDCPA’s statute
of limitations. See 15 U.S.C. § 1692k(d).6 In addition, the claim fails because the FDCPA
has been amended to state that its debt-validation provisions do not apply to legal
pleadings. 15 U.S.C. § 1692g(d); Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480
F.3d 470, 472–73 (7th Cir. 2007).

6

The statute of limitations is an affirmative defense, and ordinarily it is improper to
dismiss a complaint under Rule 12(b)(6) on the basis of an affirmative defense. However,
where, as here, the complaint and judicially noticeable documents make clear that the
claim is barred by an affirmative defense, dismissal under Rule 12(b)(6) is proper. See
Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004).
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Next, Kubiak alleges that the defendants’ attempts to collect the Waukesha
judgment by registering it in Illinois and initiating garnishment proceedings constitute
“harassment and abuse,” in violation of 15 U.S.C. § 1692d, and “unfair practices,” in
violation of 15 U.S.C. § 1692f. Compl. ¶¶ 9–15, 29. Any claims based on the outcome of
the legal proceedings in Illinois state court are likely barred by the Rooker-Feldman
doctrine. Alternatively, they fail on the merits. A lawyer’s commencing and prosecuting
a garnishment action to collect a valid judgment cannot plausibly be characterized as
harassment, abuse, or an unfair practice under the FDCPA.7
Finally, Kubiak alleges that the defendants violated the FDCPA’s venue provisions,
15 U.S.C. § 1692i, by commencing legal actions in judicial districts in which she did not
reside. To the extent Kubiak’s claim is based on the defendants’ filing the Waukesha
County action, it is barred by the one-year statute of limitations, as that action was filed
more than one year before Kubiak filed this suit. To the extent the claim is based on the
defendants’ filing the Illinois garnishment action, it is barred because that action was not
“against any consumer” within the meaning of § 1692i(a); rather, it was against Kubiak’s

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Kubiak also alleges that Peterson, who had employed Kubiak’s mother, threatened
to terminate Kubiak’s mother’s employment and then did terminate her employment to
coerce Kubiak into repaying the loan. Compl. ¶ 8. However, Peterson is not a defendant
in this case (nor is she a “debt collector” within the meaning of the FDCPA). The complaint
alleges in conclusory fashion that the defendants “conspired” with Peterson in her decision
to terminate Kubiak’s mother, but such a conclusory allegation is insufficient to state a
claim against the defendants. See Redd v. Nolan, 663 F.3d 287, 292 (7th Cir. 2011)
(holding that bare assertion that defendant acted in conspiracy with another is an
unsupported legal conclusion that a court is not bound to accept as true). For the same
reasons, Kubiak’s allegation that the defendants conspired with Peterson to cause her to
make frequent phone calls and send emails requesting payment of the debt, Compl. ¶ 16,
does not state a claim for relief.
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employer. Johnson v. Blitt & Gaines, PC, __F. Supp. 3d __, 2015 WL 4100481, at *3–7
(N.D. Ill. July 7, 2015).
Accordingly, Kubiak’s complaint must be dismissed. Because it is clear that Kubiak
cannot cure the defects identified above, I will not grant her leave to file an amended
complaint and will instead dismiss this action in its entirety. Her motion to proceed in forma
pauperis will be denied as moot. Finally, her motion for default judgments will be denied
on the ground that none of the defendants is in default.
CONCLUSION
For the reasons stated, IT IS ORDERED that the defendant’s motion to dismiss is
GRANTED, and that the complaint and this action are DISMISSED. Any claims based on
injuries caused by state-court judgments are dismissed for lack of jurisdiction. All other
claims are dismissed on the merits.
IT IS FURTHER ORDERED that plaintiff’s petition to proceed in forma pauperis is
DENIED as MOOT.
IT IS FURTHER ORDERED that plaintiff’s motion for default judgments is DENIED.
FINALLY, IT IS ORDERED that the Clerk of Court shall enter final judgment.
Dated at Milwaukee, Wisconsin, this 17th day of September, 2015.

s/ Lynn Adelman
__________________________________
LYNN ADELMAN
District Judge

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