United States District Court, D. Nebraska
TAMERRA F. WASHINGTON, on behalf of herself and all others similarly situated, Plaintiff,
BRUMBAUGH & QUANDAHL, P.C., LLO., KIRK E. BRUMBAUGH, and MARK QUANDAHL, Defendants.
MEMORANDUM AND ORDER
LYLE E. STROM, SENIOR JUDGE
This matter is before the Court on three motions. See Filing Nos. 19, 22, and 25. 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.
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). The agreement also required that in both the introduction and 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.” (Filing No. 21 at 1-2). 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).
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).
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. 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 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. Braden, 588 F.3d at 591, 595. 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. Iqbal, 556 U.S. at 678. 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.” Fed.R.Civ.P. 42(a). “Consolidation of issues and claims is committed to the discretion of the trial court.” E.E.O.C. v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998). 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. MetropolitanLife ...