United States District Court, D. Nebraska
KELLY M. BASSETT, individually and as heir of James M. Bassett, on behalf of herself and all other similarly situated; Plaintiff,
CREDIT BUREAU SERVICES, INC., and C. J. TIGHE, Defendants.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the Court on the plaintiff's motion for
partial summary judgment, Filing No. 63, and defendants'
motion to dismiss and for summary judgment, Filing No.
70. This is a
putative class action for violations of the Fair Debt
Collection Practices Act, (hereinafter referred to as the
“FDCPA”) 15 U.S.C. § 1692 et seq.,
and the Nebraska Consumer Protection Act, Neb. Rev. Stat.
§ 59-1601 et seq. (hereinafter referred to as the
plaintiff seeks summary judgment on the issue of liability-a
determination that the defendants' collection complaints
are false and misleading as a matter of law. The plaintiff
challenges defendant CMS's routine practice of sending
allegedly false and misleading collections letters in the
form of Exhibit A attached to the complaint. Filing No. 1-1.
The principal legal question is whether the defendants'
use of letters in the form of Exhibit A violated 15 U.S.C.
§§ 1692e (generally prohibiting the use of any
false, deceptive, or misleading representation or means in
connection with the collection of any debt), e(2)(A)
(prohibiting the false representation of the character,
amount, or legal status of any debt), and e(10) (prohibiting
the use of any false representation or deceptive means to
collect or attempt to collect any debt) and the NCPA, which
prohibits deceptive acts and practices. She seeks statutory
damages, declaratory relief, costs and attorney's
argues that the overall letter is false and misleading in
several respects: setting an appointment, stating there will
be further collection efforts, setting out two different
addresses of the collection company, failing to date the
dates of service or to identify the person who received the
alleged services and asserting that interest, along with
other charges, accrues daily. The plaintiff also alleges that
defendant C. J. Tighe can be held personally liable for the
Credit Bureau Services, Inc. and C.J. Tighe
(“Defendants”) move to dismiss for lack of
subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1), contending that the plaintiff lacks
standing under Article III of the United States Constitution
to pursue her claim and a claim on the decedent's behalf.
Further, they move to dismiss any claims under § 1692(g)
for failure to state a claim, arguing that the plaintiff did
not allege violations of that subsection in her complaint.
The defendants also move for summary judgment, arguing that
undisputed evidence shows the plaintiff's claims fail as
a matter of law because the challenged correspondence is not
false or misleading.
facts are set out in the court's earlier order on the
defendants' motion to dismiss and need not be repeated
here. The collection letter at issue in this case is attached
to the plaintiff's Complaint. Filing No. 1-1, Complaint
Ex. A. The
record shows the letter is in substantial conformity with 9,
796 form collection letters sent by Credit Bureau Services
during the relevant time period. Filing No. 51-8, Ex. 4B,
Deposition of C.J. Tighe (“Tighe 30(b)(6) Dep.”)
at 8-9, 48-52; Filing No. 52-2, Tighe Dep. Ex. 22, Spencer
Fane letter. A collection letter strikingly similar to
Exhibit A here was the subject of Reynolds v. Credit
Bureau Servs., Inc., No. 8:15-cv-168, 2016 WL 2859604,
at *1 (D. Neb. May 16, 2016) (“Defendants agree to
change the form collection letter that is the subject of this
litigation”); id., Filing No. 1-1, Letter.
Defendants agreed to stop using the challenged letter going
forward. See id., No. 8:15-cv-168, Filing
No. 19-1, Settlement Agreement at 9-10. Comparison of the
letter at issue herein and the letter involved in the
Reynolds litigation shows only minor edits. Compare
Reynolds, No. 8:15cv168, Filing No. 1-1, Ex. A with
Filing No. 1-1, Ex. A.
letter at issue, immediately above the addressee's name,
the letter states: “URGENT - DATED MATERIAL.”
Id. The letter does not state the name of the
patient or the dates of service for the alleged accounts.
Filing No. 66-2, Ex. 6A, Tighe dep. at 5, 7; Filing No. 51-8,
Ex. 4B, Tighe 30(b)(6) Dep. at 57, 61, 66. The original
creditor provides that information to Credit Bureau Services.
Filing No. 51-7, Ex. 4A, Deposition of Darcy Kreikemeier
(“Kreikemeier Dep.”) at 22-23, 60.
record shows defendants Credit Bureau Services, Inc. and C.J.
Tighe are debt collectors. Filing No. 51-8, Tighe 30(b)(6)
Dep. at 17-19, 46. Defendant C.J. Tighe is the president and
sole shareholder of Credit Bureau Services, and she manages
and operates the business. Filing No. 66-2, Ex. 6A, Tighe
Dep. at 2; Filing No. 51-4, Ex. 3A, Deposition of C. J.
Tighe, (“Tighe Dep.”) at 2, 11-12. Tighe
testified that she oversees everything that is done and
establishes all procedures on the accounts. Filing No. 66-2,
Ex. 6A, Tighe Dep.at 48. Mrs. Tighe drafted the version of
Exhibit A at issue. Id., Tighe Dep. at 55; Filing
No. 51-8, Tighe 30(b)(6) Dep. at 13. Tighe admits she:
“created, approved, directed, and supervised the
preparation and sending of letters in the form of Exhibit A
to plaintiff and the [purported] class members Filing No.
51-9, defendants' responses to discovery (first set) at
Bassett passed away on August 7, 2016. Filing No. 59-4, Ex.
B-1, Deposition of Kelly Bassett (“Bassett Dep.”)
at 13. Plaintiff testified that she thought the
defendants' letter was a threat to sue her if she did not
pay. Id. at 56. Mrs. Bassett expressed confusion
several times during her deposition. Id. at 48-57.
She reiterates her confusion in her declaration. Filing No.
66-15, Ex. 8, Declaration of Kelly Bassett at 3.
the creditors listed on the collection letter at issue was
General Radiology. Filing No. 1-1, Ex. A. Its manager
testified that General Radiology did not charge interest or
add other charges on their accounts. Filing No. 51-7, Ex. 4A,
Kreikemeier Dep. at 51. Defendant Tighe was unable to testify
to a single “other charge” associated with the
Bassett account. Filing No. 66-2, Tighe Dep. at 7; Filing No.
51-8, Tighe 30(b)(6) Dep. at 67; Filing No. 51-4, Tighe Dep.
at 9, 114-115. There is evidence that one of the creditors
listed in the letter to the Bassetts charges interest. Filing
No. 59-4, Bassett Dep., Ex. 47, Statement of Responsibility.
internally designated Exhibit A (the challenged letter) as
“B-10.” Filing No. 51-8, Tighe 30(b)(6) Dep. at
2, 11-12. The defendants' computer system keeps track of
different form letters used. Id. at 12.
Defendants' computer keeps accessible records as to whom
each form letter was sent and can identify class members.
Id.The computer system can identify letters sent
several years ago and can even identify the collector
requesting said letters. Id.at 5-7, 36-37, 41-42.
Tighe testified that the defendants' computer system
inserts names, addresses and amounts allegedly due, and
prints Exhibit A (Form letter B-10) when a debt collector
requests a hard-copy letter for mailing. Id. at 5,
34. When Credit Bureau Services sends a letter, its computer
system denotes it in each electronic consumer's profile.
Id.at 39-41. Credit Bureau Services recorded the
challenged letter (Filing 1-1, Exhibit A) as
“B10” in Credit Bureau Services' electronic
consumer profile for the Bassetts. Filing No. 52-1, Dep. Ex.
19, collection notes at Bates 0029.
Motions to Dismiss A motion to dismiss based on standing is
properly brought under Rule 12(b)(1), because standing is a
jurisdictional matter. Disability Support All. v.
Heartwood Enterprises, LLC, 885 F.3d 543, 547
(8th Cir. 2018). A complaint can be challenged under
Fed.R.Civ.P. 12(b)(1) 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 concerning jurisdiction are presumed to be true
and the motion is successful if the plaintiff fails 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 reviewing a pleading, the court may generally
consider documents attached to it. Brown v. Green Tree
Servicing LLC, No. 15-1527, 2016 WL 1579022, at *1 (8th
Cir. Apr. 20, 2016) (regarding mortgage and notice);
Great Plains Trust Co. v. Union Pac. R.R., 492 F.3d
986, 990 (8th Cir. 2007) (stating the court may consider
documents attached to the complaint and matters of public and
administrative record referenced in the complaint); see
also Fed. R. Civ. P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.”).
the Federal Rules, a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007). To
survive a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), “the
complaint must include sufficient factual allegations to
provide the grounds on which the claim rests.”
Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th
Cir. 2009). The stated claim for relief must be
“plausible on its face.” Twombly, 550
U.S. at 570. “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Although a
plaintiff need not allege facts in painstaking detail, the
facts alleged ‘must be enough to raise a right to
relief above the speculative level.'” Kulkay v.
Roy, 847 F.3d 637, 642 (8th Cir. 2017) (quoting
Twombly, 550 U.S. at 555).
Federal Rule of Civil Procedure 56, on a motion for summary
judgment, the court “shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The evidence must
be viewed in the light most favorable to the nonmoving party,
giving the nonmoving party the benefit of all reasonable
inferences. Kenney v. Swift Transp., Inc., 347 F.3d
1041, 1044 (8th Cir. 2003). “In ruling on a motion for
summary judgment, a court must not weigh evidence or make
credibility determinations.” Id. “Where
the unresolved issues are primarily legal rather than
factual, summary judgment is particularly appropriate.”
Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396
(8th Cir. 2004).
filing of cross-motions for summary judgment does not
“necessarily indicate that there is not dispute as to a
material fact, or have the effect of submitting the cause to
a plenary determination on the merits.” Wermager v.
Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983).
Consequently, “where conflicting inferences as to a
material fact may reasonably be drawn from the materials
before the court, the case is not appropriate for summary
is a threshold issue for this Court. Arbaugh v. Y & H
Corp., 546 U.S. 500, 507 (2006) (“The objection
that a federal court lacks subject-matter jurisdiction . . .
may be raised by a party, or by a court on its own
initiative, at any stage in the litigation, even after trial
and the entry of judgment.”). The party seeking to
invoke federal jurisdiction ...