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Tramelle Thompson, Individually, and As Mother v. Gateway Financial Services

November 29, 2012

TRAMELLE THOMPSON, INDIVIDUALLY, AND AS MOTHER, GUARDIAN AND NEXT OF FRIEND OF M.W., A MINOR; DOROTHY ALLEN, AND JAUQWAUN TRIPLETT, PLAINTIFFS,
v.
GATEWAY FINANCIAL SERVICES, INC., ET AL., DEFENDANTS.
GATEWAY FINANCIAL SERVICES, INC., CROSS-PLAINTIFF,
v.
EAGLE RECOVERY SYSTEMS, INC., CROSS-DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge:

MEMORANDUM OPINION

Now before the Court are Defendants Gateway Financial Services, Inc.'s ("Gateway") and Eagle Recovery Systems, Inc.'s ("Eagle") (together "Defendants") individual motions for partial summary judgment under Federal Rule of Civil Procedure 56. For the following reasons, Gateway's motion is denied in part and granted in part, and Eagle's motion is denied in part and granted in part.

BACKGROUND*fn1

Plaintiffs Tramelle Thompson ("Thompson") and her children M.W., a minor, and Jauqwaun Triplett ("Triplett") (together "Plaintiffs") filed this suit after Defendants' unsuccessful attempt to repossess her automobile. Thompson purchased a 2000 Dodge Stratus sometime prior to September 2009. Gateway, a Michigan corporation, financed the loan to Thompson. The car was security for the loan. By December 1, 2009, Thompson was delinquent on her loan payments. Gateway retained Eagle to repossess the car.

One evening in December 2009, Thompson was driving her car home with Triplett sitting in the passenger seat. As she approached her driveway, Thompson noticed two individuals sitting in a tow truck parked on the street in front of her home. The two individuals were Eagle employees Timothy O'Donohue ("O'Donohue") and David Grunder ("Grunder"). They were peering toward Thompson's home as she pulled the car into her driveway. Thompson parked the car in the driveway. O'Donohue walked to her vehicle and had a brief conversation with Thompson. O'Donohue then began to strike her car with a flashlight while repeatedly yelling, "Bitch, get out of the car!" O'Donohue walked around to the passenger side, near where Triplett was sitting, and continued to scream and hit the car with the flashlight. Grunder then backed the tow truck in the driveway, blocking the car's path onto the street. Triplett, a diabetic, became frightened, screamed, and urinated on himself. Thompson then cut the wheel to the side and streaked across the lawn on her way to the road and ultimately a family member's home. Triplett continued to scream and cry as Thompson was driving. Afterward, Thompson noticed that the car suffered several dents, a cracked window, chipped paint, a cracked headlight, and a broken taillight. Triplett testified that he injected himself with insulin after leaving the driveway as a result of elevated blood-sugar level.

M.W., Thompson's minor son, was asleep inside Thompson's home prior to the incident. He was awakened when O'Donohue knocked on the home's front exterior window while calling Thompson's name. M.W., an asthma sufferer, began to breathe heavily and needed to use an inhaler to regulate his breathing. He then heard what sounded like gunshots, ran to the home's front door, where he witnessed the entire incident unfold.

Thompson moved to Indiana as a result of the repossession incident. She received counseling from Reverend Bernard Clark in June of 2012 and Reverend Jerome Powell. Thompson testified that she experiences four or five headaches per month since the incident and increased anxiety out of fear that a similar incident will occur.

Plaintiffs filed the instant six-count lawsuit against Defendants. The Plaintiffs are suing Eagle for violating the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. (Count I), for a phone call made to Thompson prior to the repossession attempt; breaching the peace during the commission of a repossession under 810 ILCS 5/9-609(b)(2) (Count II); negligent hire, retention, and supervision of O'Donohue and Grunder (Count V); and willful and wanton hire, retention, and supervision of O'Donohue and Grunder (Count VI). Gateway is being sued for breaching the peace under 810 ILCS 5/9-609(b)(2) (Count II); negligent hire, retention, and supervision of Eagle (Count III); and willful and wanton hire, retention, and supervision of Eagle (Count IV).

Gateway and Eagle now seek partial summary judgment. Both Defendants argue that they are entitled to judgment as a matter of law against M.W. and Triplett with respect to the breach of peace claim and the negligent and willful and wanton hire, retention, and supervision claims in their entirety. In addition, Gateway's motion seeks summary judgment with respect to the breach of peace claim in its entirety. Eagle's motion argues for judgment that the availability of damages for emotional distress is precluded to Plaintiffs as a matter of law, and for judgment against M.W. and Triplett with respect to the FDCPA claim.

LEGAL STANDARD

Summary judgment is appropriate when the pleadings, discovery, disclosures, and affidavits establish that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Winsley v. Cook Cnty., 563 F.3d 598, 602-03 (7th Cir. 2009). A genuine issue of material fact exists when, based on the evidence, a reasonable jury could find in favor of the non-movant. Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653, 656 (7th Cir. 2010). The Court construes all facts and draws all reasonable inferences in favor of the non-movant. Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2010).

DISCUSSION

I. Breach of Peace (Count II)

A. Defendants' Motions for Judgment Against ...


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