United States District Court, N.D. Illinois, Eastern Division
June 17, 2004.
LEONARD GARRETT, Plaintiff,
EMPIRE COOLER SERVICE, INC., Defendant.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Leonard Garrett, commenced an action, pro se,
against Defendant, Empire Cooler Service, Inc., alleging
violations of the Fair Debt Collection Practices Act,
15 U.S.C. § 1692, et seq. ("FDCPA"). Subsequently, Plaintiff filed amended
complaints. On April 15, 2004, this Court entered its Memorandum
Opinion and Order, ruling that the FDCPA's one-year statute of
limitations barred Plaintiff's action but that the doctrine of
equitable tolling could apply if Plaintiff sufficiently pled
facts to establish its applicability. Accordingly, Plaintiff's
Second-Amended Complaint was dismissed without prejudice to
refile. Plaintiff filed his Second-Amended Complaint, and
Defendant seeks dismissal of the amended complaint or, in the
alternative, a more definite statement.
A reading of Plaintiff's Second-Amended Complaint supports the
following summary of the alleged conduct of the parties.
On July 14, 2000, Empire placed a property lien against the
property at 54 Deerpath Road, Matteson, Illinois. The lien
stemmed from Empire's recording a Memorandum of Judgment in the
Office of the Cook County Recorder of Deeds against an individual
named Betty Garrett. Empire had obtained a judgment against Betty Garrett in the Circuit
Court of Cook County on July 12, 2000.*fn1
Plaintiff alleges that the lien was unlawful and caused damage
to his credit, including the denial of an equity loan on or about
April 3, 2003.
Plaintiff also alleges that the statute of limitations should
be tolled because his mental and physical illness prevented him
from timely filing suit. This includes a psychiatric review dated
August 18, 2000; a heart attack and subsequent surgery in
September 2000; and classification by the United States
Government of being mentally incompetent and totally disabled in
Empire again seeks dismissal of Plaintiff's Second-Amended
Complaint based on the statute of limitations.
In reviewing a motion to dismiss, the court reviews all facts
alleged in the complaint and any inferences reasonably drawn
therefrom in the light most favorable to the plaintiff.
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323,
326 (7th Cir. 2000). Dismissal is warranted only if "it appears
beyond a doubt that the plaintiff can prove no set of facts in
support of its claims that would entitle it to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957).
Any action to enforce any liability created by the FDCPA must
be brought "within one year from the date on which the violation
occurs." 15 U.S.C. § 1692(k)(d). Accordingly, the statute of
limitations begins to run at the time a lawsuit is filed, Naas
v. Stolman, 130 F.3d 892, 893 (9th Cir. 1997), or when the debt
collector mails a letter alleged to violate the FDCPA, Mattson
v. U.S. West Communications, Inc., 967 F.2d 259, 261 (8th Cir.
1992); Friedman v. Anvan Corp., 1998 WL 559779 (N.D. Ill. Aug. 28, 1998).
However, limitation periods are generally subject to equitable
tolling. See Young v. United States, 535 U.S. 43, 49 (2002).
The FDCPA's limitation period is not jurisdictional and, thus, is
subject to equitable tolling. See Marshall-Mosby v. Corporate
Receivables, Inc., 205 F.3d 323, 327 (7th Cir. 2000); Salgado
v. Harvard Collection Serv., Inc., 2001 WL 803683 (N.D. Ill.
July 17, 2001).
Equitable tolling is reserved for [e]xtraordinary circumstances
far beyond the litigant's control [that] . . . prevented timely
filing." United States v. Marcello, 212 F.3d 1005, 1010 (7th
Cir. 2000). Equitable tolling applies when the plaintiff, despite
all due diligence, is unable to obtain vital information bearing
on the existence of his claim. See Chakonas v. City of Chicago,
42 F.3d 1132, 1135 (7th Cir. 1994). The plaintiff bears the burden
of demonstrating that his allegations justify equitable tolling.
See Harlan v. Al Piemonte Nissan, Inc., 2002 WL 31155061 (N.D.
Ill. Sept. 26, 2002); Spartech Corp. v. Apelco, Inc., 1988 WL
9513 (N.D. Ill. Jan. 26, 1988).
In the instant case, the date on which the alleged violation
occurred was July 14, 2000, the date of the filing of the alleged
illegal lien. Plaintiff concedes that the statute of limitations
began to run on July 14, 2000, but seeks to invoke the doctrine
of equitable tolling based on his mental and physical illnesses.
Mental and/or physical illness can be the basis for equitable
tolling. See Barnhart v. United States, 884 F.2d 295, 300
(7th Cir. 1989); Dunn v. Grant Hosp. of Chicago, 1997 WL
51450 (N.D. Ill. Jan. 30, 1997). At this stage of litigation,
Plaintiff has sufficiently pled equitable tolling.
Defendant also seeks dismissal for failure to state a claim
upon which relief can be granted. Defendant argues that the act
of recording the judgment and/or lien was expressly authorized by statute; therefore, there can be no violation of the FDCPA.
However, in support of its argument, Defendant relies upon
materials outside the Second-Amended Complaint. These additional
materials cannot be considered by the Court. Furthermore, as
argued by the Defendant in seeking a more definite statement, as
written, it is not clear which provisions of the FDCPA are
alleged to have been violated by the Defendant. Accordingly,
dismissal for failure to state a claim upon which relief can be
granted is not appropriate.
Defendant alternatively seeks a more definite statement,
arguing that it is unclear which provisions of the FDCPA are
alleged to have been violated. For example, in Count I, Plaintiff
cites to Section 1692j(a) and (b) of the FDCPA, which prohibits
the furnishing of certain deceptive forms. However, Plaintiff
fails to identify which form(s) was furnished by Defendant. In
addition, Plaintiff's Second-Amended Complaint includes
references to other various categories of claims and harms, such
as "RICO," "racketeering," and "cloud title." However, it is not
discernable if these are actually attempts to state a claim and
what the Plaintiff is calling upon Defendant to answer.
A review of Plaintiff's Second-Amended Complaint demonstrates
that Plaintiff's six counts, all alleging violations of the
FDCPA, merely state a conclusion that a violation occurred and
provide no allegations that would enable the Defendant to
properly answer the allegation. Accordingly, a more definite
statement is required to allow the Defendant to properly answer
the allegations. For the foregoing reasons, Defendant's Consolidated Motion for
Relief is granted in part and denied in part. Defendant's motion
to dismiss is denied. Defendant's motion for a more definite
statement is granted. Plaintiff is ordered to provide a more
definite statement as to his claims on or before July 9, 2004.
Defendant's responsive pleading is to be filed on or before July
23, 2004. A status hearing is scheduled for September 1, 2004, at