United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD UNITED STATES DISTRICT JUDGE
plaintiff, Aaron Pflueger, brings this action pursuant to the
Fair Debt Collection Practices Act, (FDCPA), 15 U.S.C.
§ 1692 et seq., alleging in pertinent part
that the defendants violated the FDCPA by commencing a county
court collection lawsuit in a Nebraska county where he did
not reside. Filing 36 at 4. The defendants deny that
the collection suit was commenced in the wrong venue, and
claim that even if it was, the error was not intentional and
resulted from a bona fide error notwithstanding reasonable
procedures to avoid any such error. Filing 37 at
2-3. Pflueger moves for partial summary judgment regarding
liability. The defendants move for summary judgment and
dismissal of Pflueger's amended complaint based on their
defenses. The Court will deny both motions.
STANDARD OF REVIEW
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See
motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en
banc). Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
evidence are jury functions, not those of a judge.
August 15, 2016, defendant Credit Bureau Services (CBS)
received assignment of a debt Pflueger had incurred for
services provided by the Seward Animal Hospital.
See, filing 45-2 at 7. The amount of the
debt was $895.26. See filing 45-2 at 16. CBS learned
from the post office that as of August 15, Pflueger resided
at 214 Oak Street, Louisville, Nebraska. Filing 45-1 at
1. On August 30, a CBS representative spoke with
Pflueger by telephone and verified his address. Filing
45-1 at 2. Around September 7, CBS mailed a notice to
Pflueger at the Louisville address. Filing 45-1 at
2. That mailing was returned on September 9 with an
address correction notification that Pflueger's new
mailing address was a post office box in Murdock, Nebraska.
Filing 45-1 at 2. Around November 22, CBS mailed
another notice to Pflueger's Murdock post office box.
Filing 45-1 at 2. That notice was not returned as
undeliverable or with an address change notification.
Filing 45-1 at 2.
December 8, defendant Barron, acting as the attorney for CBS,
requested information from the Murdock postmaster about
Pflueger and the physical address of the boxholder of the
post office box previously identified as belonging to
Pflueger. Filing 45-1 at 2, 5. In response, the
postmaster reported the boxholder's address was the same
Louisville address CBS had sent a notice to in August-the
notice that had been returned. Filing 45-1 at 2, 5.
Murdock is a small village located approximately 13 miles
southwest of Louisville. Both towns are in Cass County,
December 23, Barron prepared a complaint and praecipe to be
filed in Cass County Court regarding Pflueger's debt.
Filing 45-1 at 3. On December 29, CBS sent the
complaint and praecipe, along with a check for the filing
fee, to the Cass County Court clerk. Filing 45-1 at
3. The complaint and praecipe were received by the clerk
and file stamped January 4, 2017. Filing 45-1 at 3;
filing 45-2 at 16. The praecipe for summons requested
certified mail service at Pflueger's Louisville
address-not Pflueger's post office box in Murdock.
Filing 45-2 at 17. Not surprisingly, certified mail
service was unsuccessful. Filing 45-2 at 20. The
certified mail return receipt filed by Barron and file
stamped January 20, 2017, had the notation "unable to
forward," which would indicate that Pflueger no longer
resided at the Louisville address. Filing 45-2 at
filed a praecipe for alias summons on March 1, directing the
Cass County Sheriff to obtain personal or residential service
of Pflueger at the same Louisville address where mail had
previously been returned and certified mail service was
unsuccessful. Filing 45-2 at 22. In addition, the
sheriff was directed to personally serve Pflueger at what was
believed to be his place of employment. But the address
provided for Pflueger's employment was the same as his
home address in Louisville. Filing 45-2 at 22.
Again, not surprisingly, the Sheriff was unable to perfect
service of summons and copy of the defendants' complaint.
The sheriff's service return reported that service failed
because Pflueger had "moved away." Appendix
defendants moved the county court for leave to obtain service
by publication, and leave was granted on April 27, 2017. The
affidavit of publication filed with the county court clerk on
May 25 reports that notice of the defendant's lawsuit was
published for three consecutive weeks between May 4 to May 18
in a Plattsmouth, Nebraska legal newspaper. Filing 45-2
at 25. Plattsmouth is the county seat for Cass County
and is about 15 miles east of Louisville.
May 8, 2017, CBS located a Wayne County, Nebraska, arrest
warrant for Pflueger dated May 3, 2017. Filing 45-1 at 3,
9. The warrant reported a Gretna, Nebraska address for
Pflueger. Filing 45-1 at 9. Gretna is in Sarpy
County - a county adjoining Cass County to the north. On May
10, an attorney (not Barron) filed an "affidavit of
mailing notice" with the Cass County Court clerk. The
affidavit reported that Pflueger had been served notice at
his Gretna address of the pending collection action first
published in the Plattsmouth Journal on May 4. Appendix B.
There is no indication Pflueger appeared or filed a pleading
of any kind in the Cass County collection action.
moved the Cass County court for a default judgment on June
27. Filing 45-2 at 5. Barron's motion appeared
to be a standard form and recited "the allegations
contained in the complaint of the Plaintiff are true."
Filing 45-2 at 5. The defendants' original
filing was captioned "Complaint and Praecipe," and
although the complaint did not report an address for
Pflueger, the praecipe reported Pflueger's Louisville
address. Filing 45-2 at 16-17. Barron mailed a copy
of the motion for default judgment to Pflueger's Gretna
address on that same day, June 27. Filing 45-2 at 6.
Relying on Barron's representations regarding service of
process and venue, the county court entered judgment for CBS
on June 30, 2017. Filing 45-2 at 5.
PFLUEGER'S MOTION FOR ...