Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jenkins v. Pech

United States District Court, D. Nebraska

August 27, 2014

LEE A. JENKINS, on behalf of himself and all others similarly situated; Plaintiff,
v.
CHRISTOPHER E. PECH and PECH, HUGHES, & MCDONALD, P.C., Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, District Judge.

This matter is before the court on the defendants' motion to dismiss under Fed.R.Civ.P. 12(h)(3), Filing No. 23. This is a putative class action for violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (FDCPA), and the Nebraska Consumer Protection Act, Neb. Rev. Stat. §§ 59-1601 et seq. (NCPA). This court has jurisdiction under 28 U.S.C. § 1331.

In her complaint, the plaintiff alleges that the defendants sent her a misleading collection letter, in violation of 15 U.S.C. § 1692e(3), 1692e(10), 1692e(14), and 1692g(a) and Neb. Rev. Stat. § 59-1602. She seeks a judgment in her favor, and in favor of the class she seeks to represent, for damages, injunctive relief, costs and reasonable attorney fees and "such other and further relief as the Court shall allow, pursuant to Neb. Rev. Stat. § 59-1609." Filing No. 6, Amended Complaint at 11. She also alleges that the defendants' violations of the Nebraska Consumer Protection Act "cause financial injury to the Plaintiff and the Class" and involve a matter of public interest. Id.

On April 2, 2014, plaintiff filed a Motion for Class Certification and to Stay Briefing. Filing No. 15. She requested the court stay briefing on the class certification issue until completion of discovery or other appropriate date, explaining that the plaintiff filed the motion "at this early stage in the litigation out of an abundance of caution, given recent opinions, that have held that an offer of full individual relief to a named class representative prior to the filing of a motion for class certification may moot the class representative's claims, thus depriving the court of subject matter jurisdiction." Filing No. 16, Plaintiff's Brief at 3. The court later granted the motion, holding the motion for class certification in abeyance. Filing No. 21, Order. The court also set a deadline for the defendants' anticipated motion to dismiss. Id.

In their motion to dismiss for lack of jurisdiction, the defendants argue the plaintiff's claims are moot by reason of an offer of judgment under Fed.R.Civ.P. 68 that ostensibly offered the plaintiff all of the relief she seeks. Consequently, they argue the court lacks jurisdiction since there is no longer a case or controversy before the court. The defendants also argue that the court lacks subject matter jurisdiction over the putative class because the plaintiff is not an adequate class representative.

In support of their motion, the defendants submit the declaration of Tomio B. Narita ("Narita Decl."), which shows the defendants offered to allow judgments to be entered against them in the amount of $4, 001.00, together with "injunctive and declaratory relief solely with respect to the plaintiff's individual FDCPA and NCPA claims, " plus reasonable attorneys' fees and costs incurred by plaintiff, in an amount to be determined by the court if the parties were unable to agree. See Filing No. 23, Motion, Attachment 2, Declaration of Tomio B. Narita ("Narita Decl."), Exhibit 1, Offer of Judgment at 1 (CM/ECF Doc # 23-2, Page ID # 134). Specifically, the defendants offered:

to allow judgment to be taken against them as to the individual claims asserted by the plaintiff Lee A. Jenkins ("Jenkins") as follows:

Judgment for Jenkins for the sum of Four Thousand and One Dollars ($4, 001.00), injunctive and declaratory relief as prayed for in the complaint solely with respect to Plaintiffs individual claims, plus reasonable attorneys' fees and costs incurred by Plaintiff in connection with this action through the date of acceptance of this Offer of Judgment in an amount to be agreed to by counsel, or failing agreement, in an amount to be determined by the Court. This Offer of Judgment is inclusive of all damages, costs, and attorneys' fees as to all claims asserted in the action by Jenkins in his individual capacity against Defendants.

Id. The Offer of Judgment further provided that "this offer shall be deemed withdrawn if it is not accepted within fourteen days of the service hereof." Id. Plaintiff did not accept the Offer. See id., Narita Decl. at 1.

I. LAW

A motion to dismiss for lack of matter jurisdiction may be brought at any time pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."); see also Bueford v. Trust Corp., 991 F.2d 481, 485 (8th Cir. 1993); see Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 880 n.3 (3d Cir. 1992) ("The distinction between a Rule 12(h)(3) and a Rule 12(b)(1) motion is simply that the former may be asserted at any time and need not be responsive to any pleading of the other party.").[1] A Rule 12(h)(3) motion to dismiss is evaluated under the same standards as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1). Id.; Miller v. Ataractic Inv. Co., LLC, 2012 WL 2862883, *1 (W.D. Mo. July 11, 2012).

A district court has authority to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1). Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 637, n.4 (8th Cir. 2003). For the court to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), "the complaint must be successfully challenged either on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). "In a facial challenge to jurisdiction, all of the factual allegations regarding jurisdiction would be presumed true and the motion could succeed only if the plaintiff had failed to allege an element necessary for subject matter jurisdiction." Id. In a factual attack on the jurisdictional allegations of the complaint, however, the court can consider competent evidence such as affidavits, deposition testimony, and the like in order to determine the factual dispute. Id. In such a challenge, this court is "free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). The plaintiff has the burden of proving that jurisdiction does in fact exist. Id. A dismissal based on lack of subject matter jurisdiction will not be granted lightly. Wheeler v. St. Louis S.W. Ry., 90 F.3d 327, 329 (8th Cir. 1996).

"Federal jurisdiction is limited by Article III, § 2, of the U.S. Constitution to actual cases and controversies." Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000). The threshold question in every federal case is the plaintiff's standing to sue. Id. Without standing, the court lacks subject matter jurisdiction to hear the suit. The "case or controversy" limitation requires a party who invokes the jurisdiction of the federal courts to "demonstrate that he possesses a legally cognizable interest, or personal stake, ' in the outcome" of the case." Genesis Healthcare Corp. v. Symczyk, ___ U.S. ___, 133 S.Ct. 1523, 1528 (2013) (quoting Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2028 (2011) (involving a collective action under the Fair Labor Standards Act).[2] If, after filing a complaint, the claimant loses a personal stake in the action-making it "impossible for the court to grant any effectual relief whatever, " the case must be dismissed as moot. Church of Scientology v. United States, 506 U.S. 9, 12 (1992).

"Congress enacted the FDCPA in 1977 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." Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577 (2010) (internal citation omitted); see also 15 U.S.C. § 1692(e). Under the FDCPA, individual plaintiffs may seek actual damages, statutory damages of up to $1, 000, and costs and fees. 15 U.S.C. § 1692k(a). In class actions, named plaintiffs may seek the same relief as individuals. Id. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.