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Judy v. Blatt

January 29, 2010

ARTHUR G. JUDY, AKA ARTHUR JUDY, JR., PLAINTIFF,
v.
BLATT, HASENMILLER, LEIBSKER, AND MOORE LLC, AND JOHN AND JANE DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiff Arthur G. Judy alleges that Defendants Blatt, Hasenmiller, Leibesker and Moore LLC ("BHLM") along with John and Jane Does 1-10 violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), the Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505 et seq., and the Uniform Deceptive Trade Practices Act, 815 Ill. Comp. Stat. 510 et seq., by prosecuting a collection lawsuit against him with no legal basis. BHLM now moves to dismiss Judy's FDCPA claims as time-barred, asks the court to decline to exercise supplemental jurisdiction over Judy's state law claims, and seeks sanctions under 28 U.S.C. § 1927, Rule 11 of the Federal Rules of Civil Procedure and the FDCPA, 15 U.S.C. § 1692k(a)(3).

I. LEGAL STANDARD

Rule 12(b)(6) allows a defendant to seek dismissal of a complaint that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). On a Rule 12(b)(6) motion the court must accept as true the allegations of the complaint and draw all reasonable inferences in favor of plaintiff. Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (internal citation omitted). Legal conclusions, however, are not entitled to any assumption of truth. Ashcroft v. Iqbal, 129 S.Ct.1937, 1940 (2009). To survive a Rule 12(b)(6) motion, "the complaint need only contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2)). However, the allegations must provide the defendant with "fair notice of what the... claim is and the grounds upon which it rests." Bell Atl., Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). The plaintiff need not plead particularized facts, but the factual allegations in the complaint must be sufficient to "state a claim to relief that is plausible on its face[.]" Id. 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." Iqbal, 129 S.Ct. at 1940 (citing Twombly, 550 U.S. at 556).

Judy contends that dismissal of a lawsuit on statute of limitations grounds is rarely appropriate because at the pleading stage "the question is only whether there is any set of facts that if proven would establish a defense to the statute of limitations." Cole v. Noonan & Lieberman, Ltd., No. 05 C 67, 2005 U.S. Dist. Lexis 26045, at *8 (N.D. Ill. Oct. 26, 2005) (citing Clark v. City of Braidwood, 318 F.3d 764, 768 (7th Cir. 2003)). In the wake of Twombly and Iqbal, however, the Seventh Circuit has re-evaluated the standard Judy cites, emphasizing that now "it is not enough for a complaint to avoid foreclosing possible bases for relief. The plaintiff must plead some facts that suggest a right to relief that is beyond the speculative level." In re MarchFIRST, Inc., 589 F.3d 901, 905 (7th Cir. 2009) (upholding district court's dismissal for failure to file suit within the relevant statute of limitations period).

II. BACKGROUND

The FDCPA prohibits, inter alia, falsely representing the legal status of any debt; this is the crux of the wrong Judy alleges BHLM inflicted on him here. See 15 U.S.C. 1692e(2)(a). Specifically, Judy claims that BHLM knew or should have know that Judy was not a party to the credit card agreement that formed the basis for the state-court collection action (the "Collection Action") BHLM filed against him. See generally Compl. Moreover, Judy alleges that: he and his attorney had numerous conversations with BHLM where Judy or his attorney told BHLM that Judy was not a party to the credit card agreement that formed the basis for the Collection Action, but BHLM nonetheless "continued to prosecute the collection case against [Judy]" (id. ¶¶ 32, 34); he was forced to file a motion for summary judgment in the Collection Action (id. ¶ 37); his attorney was required to appear at five separate hearings related to the Collection Action (id. ¶ 35); BHLM never "produced a copy of any agreement or contract between Plaintiff and [a creditor] evidencing Plaintiff's agreement to pay" the relevant credit card debt (id. ¶ 38); and, finally, BHLM falsely reported information to credit reporting agencies. Id. ¶ 46.

III. ANALYSIS

Judy filed this lawsuit on February 25, 2009, which BHLM contends was too late because the FDCPA requires that claims be brought "within one year from the date on which the violation occurs." See 15 U.S.C. § 1692k(d). The only discrete act in the Complaint specifically alleged to have fallen within this one-year period of limitations is BHLM's dismissal of the Collection Action with prejudice, which occurred on February 26, 2008. This alleged violation is time-barred, according to BHLM, because two district courts have held that FDCPA suits based on unlawful prosecution of a collection action accrue when the collection action is filed, and "each procedural step in the course of a collection lawsuit" does not constitute a "'fresh' FDCPA violation." Mem. 3 (citing Calka v. Kucker, Kraus & Bruh LLP, No. 98 C 0990, 1998 WL 437151, at *3 (S.D.N.Y August 3, 1998); Greski-Lesneiwicz v. Nationwide Credit, Inc., No. 07 C 2975 (N.D. Ill Oct. 26, 2007)). BHLM also relies on these cases to argue that the rest of the Complaint is time-barred because Judy's other allegations amount only to procedural steps in the Collection Action that accrued on March 19, 2007, the day BHLM filed the Collection Action. Compl. ¶¶ 35, 37, & Ex. D. According to this theory, the instant suit, filed nearly two years later on February 25, 2009, is time-barred. For his part, Judy urges to the contrary that the dismissal of the Collection Action on January 26, 2008 culminated a continuing violation of the FDCPA which accrued on that date, rendering the Complaint timely-filed in its entirety. Alternatively, Judy seeks tolling of the statute of limitations period based on equitable principles.

A. Continuing Violation

Where an FDCPA violation arises out of a collection lawsuit, the Seventh Circuit has not decided when the FDCPA's statute of limitations begins to run, though the circuit courts that have ruled on the issue agree that the clock starts when the allegedly wrongful litigation begins. Naas v. Stolman, 130 F.3d 892, 893 (9th Cir. 1997); Johnson v. Riddle, 305 F.3d 1107, 1113 (10th Cir. 2002).*fn1 Here, BHLM filed the Collection Action on March 19, 2007 (see Compl., Ex. D) and Judy filed the instant suit nearly two years later on February 25, 2009. Under Naas and Riddle, then, Judy's suit would be time-barred to the extent he claims that the filing of the Collection Action was a violation of the FDCPA. Of course, these out-of-circuit holdings are only persuasive authority, but Judy has made no effort to show that they are unsound and the court does not independently find them so. Accordingly, on March 19, 2007 the statute of limitations began to run on Judy's claim that the filing of the Collection Action violated the FDCPA.*fn2

As for whether the course of litigation may constitute a continuing violation of the FDCPA which accrued at the conclusion of BHLM's Collection Action against Judy, at least two district courts have ruled that it does not. See Calka, 1998 WL 437151, at *3; Greski-Lesneiwicz, No. 07 C 2975, slip op. at 3. The Seventh Circuit has not opined directly on this issue, but has clarified that statutes of limitations begin to run upon injury "and [are] not tolled by subsequent injuries," and has emphasized that the continuing violation doctrine applies narrowly where there is no violation at all until a series of non-actionable wrongs accumulate to form a cause of action. See Limestone Dev. Corp. v. Vill. of Lemont, Ill., 520 F.3d 797, 801 (7th Cir. 2007). For example, with workplace sexual harassment:

The first instance of a co-worker's offensive words or actions may be too trivial to count as actionable harassment, but if they continue they may eventually reach that level and then the entire series is actionable. If each harassing act had to be considered in isolation, there would be no claim even when by virtue of the cumulative effect of the acts it was plain that the plaintiff had suffered actionable harassment.

Id. (internal citations omitted). Here, Judy alleges that he and his attorney had numerous conversations with BHLM where Judy or his attorney told BHLM that Judy was not a party to the credit card agreement that formed the basis for the Collection Action, but BHLM nonetheless "continued to prosecute the collection case against [Judy]." Compl. ¶¶ 32, 34. Judy additionally claims that he was forced to file a motion for summary judgment in the state Collection Action (Compl. ¶ 37), his attorney was required to appear at five separate hearings related to the Collection Action (Compl. ¶ 35), that BHLM never "produced a copy of any agreement or contract between Plaintiff and Chase evidencing ...


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