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Washington v. Brumbaugh & Quandahl, P.C.

United States District Court, D. Nebraska

September 19, 2017




         This dispute is straightforward: the plaintiff, Tamerra Washington, was sued in state court on an unpaid debt. As part of that proceeding, Washington was served with discovery requests which, she claims, were false and misleading. She has sued Brumbaugh & Quandahl, the debt collection firm, and the firm's two founding partners-Mark Quandahl and Kirk Brumbaugh (collectively, "B&Q"). Washington's class action complaint seeks monetary and injunctive relief under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and the Nebraska Consumer Protection Act (NCPA), Neb. Rev. Stat. § 59-1601 et seq. See filing 69.

         That initial semblance of clarity, however, is lost in the over 1, 200 pages of highly contentious argument and evidence currently before the Court. Those filings correspond to five pending motions, which include Washington's motion for class certification, B&Q's motion to dismiss, the parties' cross-motions for summary judgment, and B&Q's motion for contempt. As discussed in more detail below, the Court will, for the most part, address those motions in order-starting with Washington's motion for class certification. Ultimately, that motion will be denied, as will B&Q's motion to dismiss, and its motion for contempt. The parties' cross-motions for summary judgment will be granted in part, and denied in part, as set forth below.


         Tamerra Washington incurred a debt in 2011. That bill went unpaid, so the creditor retained defendant B&Q to pursue legal action against her. On September 18, 2015, B&Q filed suit against Washington in Douglas County Court. See filing 69 at 4. Washington, proceeding pro se, filed a general denial to the complaint. Filing 69 at 5; filing 69-3 at 1.

         A few weeks later, B&Q served Washington with discovery requests, including interrogatories and requests for admissions. Filing 69 at 5; filing 69-1 at 1-8. Through those documents, B&Q sought general information from Washington about the existence of the debt, and Washington's prior payment history, if any. For example, in its interrogatories, B&Q asked Washington to list the date, amount, and manner of any payments that she had made towards the underlying obligation. Filing 69-1 at 7-8. Similarly, in its request for admissions, B&Q asked Washington, among other questions, to admit or deny owing the debt, which it listed at $7, 570.87. Filing 69-1 at 2-3.

         B&Q's discovery requests also contained limited information on where and how Washington should submit her answers. Its requests for admissions, for example, contained the following text:

COMES NOW the Plaintiff and propounds the following Request for Admissions upon Defendant pursuant to the Nebraska Revised Statutes. Written, sworn answers must be filed by Defendant[s] within thirty days of the services hereof, or the facts, the truth of which is requested, shall be deemed admitted.

         Filing 69-1 at 2 (emphasis added). The materials did not, however, include information regarding Washington's rights as a Nebraska litigant. In other words, B&Q did not expressly inform Washington-through its discovery or otherwise-that she had a right to object to discovery-related inquiries under Neb. Ct. R. Disc. § 6-336. It is unclear what measures, if any, B&Q took against Washington after she was served with the interrogatories and request for admissions. But, as both parties acknowledge, Washington did complete those documents, and as instructed, filed at least one of the forms directly with the Douglas County Court. Filing 101 at 8.

         Soon thereafter, Washington filed this lawsuit, claiming violations of the NCPA and FDCPA. As discussed in more detail below, Washington claims that B&Q routinely engages in abusive debt collection practices by (1) incorrectly instructing pro se debtors that certain answers must be "filed" and "sworn"; and (2) failing to inform debtors of their right to object to discovery-related inquiries as permitted under the Nebraska Rules of Discovery. See filing 69. Based on those allegations, Washington moves for certification of four plaintiff classes-two under the FDCPA, and two under the NCPA. Filing 74. The Court will address Washington's motion for class certification before turning to the parties' cross motions for summary judgment.


         As noted, Washington moves for certification of two FDCPA classes and two NCPA classes. Filing 74. The proposed FDCPA classes-Class One and Class Two-consist of pro se Nebraska residents who were sued by B&Q " during the one year period prior to the filing of the complaint in this matter." Filing 74 at 2. Those classes differ, according to Washington, only in the type of violation alleged. In other words, Class 1 consists of pro se debtors who were served by B&Q with requests for admissions "indicating that the recipient is to swear to the answers under oath and that the recipient's responses are to be filed with the court[.]" Filing 74 at 2. Class Two, on the other hand, consists of pro se debtors who were served by B&Q with "any discovery which failed to inform the recipient of the right to object to any discovery requests." Filing 74 at 2. The proposed NCPA classes-Class Three and Class Four-are materially identical to those just described, but include Nebraska residents who were sued by B&Q in the past four years, as opposed to the past 12 months. Filing 74 at 1-2.

         Fed. R. Civ. P. 23(a) permits class certification where: (1) the class is so numerous that joinder of all members is impracticable (numerosity), (2) there are questions of law or fact common to the class (commonality), (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality), and (4) the representative parties will fairly and adequately protect the interests of the class (adequate representation). The primary issue here is numerosity-that is, whether Washington has shown that each proposed class is sufficiently large so as to render joinder of all its members impracticable in light of the particular circumstances of the case. See Arkansas Educ. Ass'n v. Board of Educ. of Portland, Arkansas School Dist., 446 F.2d 763, 765 (8th Cir. 1971).

         Washington attempts to establish numerosity with broad references to the volume of litigation B&Q files each year. Filing 75 at 20-21. She has also attached a document which purports to reflect a "random sampling" of approximately 600 cases filed by B&Q over a 4 year period. Filing 75 at 20; filing 76-7. And of those 600 cases, she has identified 45 potential class members-all of whom, Washington claims, fall into one of the four proposed classes. Seefiling 75 at 20. But as B&Q points out, Washington has provided no evidence that the 45 potential class members received the allegedly false and deceptive discovery underlying her claims. Seefiling 91 at 30-31. In fact, the evidence suggests that many did not. See filing 97 at 33-34; filing 92-11; filing 92-12; filing 92-14; filing 92-13; filing 92-15.

         An extensive review of the record shows that, at most, 14 other unrepresented debtors in a 12-month span potentially received the discovery requests at the center of the parties' dispute. Seefiling 76-4 at 15. And while Washington may disagree with that number, she has presented no evidence to suggest otherwise. Rather, as described above, her evidence consists of 45 individuals who may, or may not, have been represented at the time they received such documents, and who may, or may not, have been served with the allegedly unlawful discovery requests. The Court finds that Washington has failed to satisfy her burden as to Rule 23's numerosity requirement.

         Even if numerosity was satisfied, however, Washington's motion would still fail on Rule 23(a)'s second requirement, commonality, which requires her to show that class members "have suffered the same injury." Powers v. Credit Management Servs., Inc., 776 F.3d 567, 570 (8th Cir. 2015)(quoting Gen. Tel. Co. v. Falcon, 457 U.S. 147, 157 (1982)). To that end, the Court is not convinced that the resolution of Washington's substantive allegations would produce a common answer "apt to drive the resolution of the litigation." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). After all, as described above, it is unclear what-if any-discovery materials the proposed class members received, and whether they were represented by counsel[1] at the time they received such materials. So, even assuming that B&Q violated the FDCPA and NCPA by engaging in the conduct alleged, individual inquiries would still be required to resolve class members' claims. Powers, 776 F.3d at 571.

         For those reasons (and the reasons that follow), the Court concludes that Washington has failed to satisfy her burden, and that the prerequisites of Rule 23(a) are not satisfied. Wal-Mart Stores, 564 U.S. at 350. Accordingly, Washington's motion for class certification will be denied. The Court will, therefore, examine the parties' cross-motions for summary judgment as they apply to Washington individually.


         Washington claims that B&Q's discovery requests are false, misleading and unconscionable in two primary respects: (1) the discovery requests fail to include information regarding the right to object; and (2) the requests for incorrectly imply that answers must be "sworn" and "filed" with the court. Filing 69 at 5. Washington suggests other deficiencies in the nearly 700 pages of argument and evidence she has filed with the Court, but she does not meaningfully press those arguments in the underlying motion for summary judgment.

         (A) ...

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