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McCauley v. Hunter

United States District Court, N.D. Illinois, Eastern Division

May 7, 2015




This matter is before the court on Defendant William H. Hunter, Esq.'s (Hunter) and Defendant Autovest, LLC's (Autovest) motion to dismiss. For the reasons stated below, the motion to dismiss is granted.


Plaintiff Winifred McCauley (McCauley) claims that on January 23, 2013, in an attempt to collect an alleged consumer debt from her, Hunter filed a complaint against McCauley on Autovest's behalf in the Circuit Court of Cook County (Collection Action). On October 28, 2013, a judgment was allegedly entered against McCauley in the amount of $15, 084.68. McCauley further alleges that Hunter caused an affidavit for wage deduction to be filed in the Collection Action on December 4, 2013.

On October 31, 2014, McCauley filed the instant action and includes in her complaint claims alleging a violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. ยง 1692, et seq. against Hunter (Count I) and claims alleging a violation of the FDCPA against Autovest (Count II). McCauley alleges that both Hunter and Autovest violated the FDCPA by filing the Collection Action in an improper venue in Cook County. Hunter now moves to dismiss the claims brought against it, and Autovest has joined Hunter's motion to dismiss.


In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level'" and "if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that "[t]o survive a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, " and that "[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")(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations omitted).


Defendants argue that McCauley's complaint should be dismissed, contending (1) that McCauley lacks standing to prosecute the instant action, (2) that McCauley is judicially estopped from prosecuting this case due to her failure to disclose it during separate bankruptcy proceedings, and (3) that McCauley's claim is time-barred by the FDCPA's one-year statute of limitations. (MTD Mot. 1); (MTD Mem. 3).

I. Exhibits

Both McCauley and Hunter have filed certain exhibits which the court has considered. Generally, a court "may only consider the plaintiff's complaint when ruling on a Rule 12(b)(6) motion." Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013). However, Federal Rule of Civil Procedure 10(c) provides that "written instruments" attached to a pleading become part of that pleading for all purposes. Fed.R.Civ.P. 10(c). Thus, an attached document to the complaint qualifying as a written instrument, which is referred to and relied upon in asserting the claim, becomes part of the complaint and "may be considered as such when the court decides a motion attacking the sufficiency of the complaint." Williamson v. Curran, 714 F.3d 432, 435-36 (7th Cir. 2013). Additionally, documents attached to Rule 12(b)(6) motions to dismiss which are similarly referred to in the plaintiff's complaint and central to the claim may also be considered. Burke, 714 F.3d at 505 (citing McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006)). Moreover, when an exhibit contradicts allegations in the complaint, the exhibit controls, even when considering a motion to dismiss. Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013)(citing Forrest v. Universal Savings Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007))(stating that "[w]here an exhibit and the complaint conflict, the exhibit typically controls").

McCauley has attached a copy of the Collection Action to her complaint (Compl. Ex. A) and a copy of the Collection Action's court docket sheet (Compl. Ex. C). Hunter has attached exhibits to the motion to dismiss, including copies of the certificate of service of the Collection Action (MTD Mem. Ex. B), the Bankruptcy Action petition and schedules (MTD Mem. Ex. C), and the discharge of debtor (MTD Mem. Ex. D). Since McCauley's exhibits and Hunter's exhibits are central to the instant claim, the court may consider them for purposes of adjudicating Defendants' motion.

Although McCauley alleges in her complaint that the Collection Action commenced "[o]n January 23, 2013, " (Compl. 2), the court notes that McCauley's attachments relating to the Collection Action, specifically the caption page of the complaint and the court's docket sheet, indicate that the filing date of the Collection Action was January 23, 2012. (Compl. Ex. A, 5); (Compl. Ex. C, 1). Thus, since the date in McCauley's exhibits contradicts the date alleged in McCauley's complaint as to the commencement of the Collection Action, ...

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