United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
H. LEFKOW, U.S. DISTRICT JUDGE
Bednarski, Jr., filed suit against Potestivo &
Associates, P.C., and Caleb J. Halberg, alleging they
violated multiple sections of the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. §§ 1692 et
seq. (Dkt. 4 ¶¶ 13-14.) Potestivo and Halberg
move to dismiss for lack of subject-matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1) and for failure to
state claim under Federal Rule of Civil Procedure 12(b)(6).
(Dkt. 12.) For the reasons stated below, the motion to
dismiss is granted in part and denied in part.
1993 and 1995, Bednarski received four student loans from the
Illinois Student Assistance Commission. (Dkt. 15 at 1-2.) As
of early 2015, the outstanding debt totaled $22, 824.43.
(Dkt. 4 ¶ 7.) On March 10, 2015, Halberg, an attorney
employed by Potestivo, drafted a collection letter regarding
this debt, representing that he was writing on behalf of the
United States Department of Justice. (Id. ¶ 9,
Ex. A.) Halberg signed the letter under the typed name of the
United States Attorney for the Northern District of Illinois,
as “Attorney for the United States.” This letter
was mailed to Bednarski's father's home address
rather than to the address listed on Bednarski's student
loan applications. (Id. ¶ 10; Dkt. 15 at 1.)
Because Bednarski's father was deceased, the letter was
received and opened by Bednarski's sister, who contacted
Bednarski to inform him he “was being sued by the
government.” (Dkt. 15 at 2.) Bednarski alleges the
letter itself “is extremely confusing” and
falsely represents both that Halberg is an attorney for the
United States and that a lawsuit had been filed against
Bednarski regarding the debt. (Dkt. 4 ¶¶ 11-12.)
March 2, 2016, Bednarski filed an Amended Complaint, which is
the subject of this motion to dismiss. The Amended Complaint
names both Potestivo and Halberg as defendants and claims
they violated the FDCPA, sections 1692b(2); 1692c(b); 1692d;
1692e(1), (2), (5), (9), and (10); and 1692f. (Id.
and Halberg now move to dismiss Bednarski's Amended
Complaint pursuant to Rules 12(b)(1) and 12(b)(6) arguing (a)
they are entitled to qualified immunity under Yearsley v.
W.A. Ross Constr. Co., 309 U.S. 18, 20, 60 S.Ct. 413, 84
L.Ed. 554 (1940), and therefore the court lacks
subject-matter jurisdiction; (b) the Amended Complaint fails
to state a claim against Halberg in his individual capacity;
and (c) the Amended Complaint fails to state a claim against
Potestivo. (Dkt. 12.)
considering a motion to dismiss for lack of subject matter
jurisdiction, the district court must accept the
complaint's well-pleaded factual allegations as true and
draw reasonable inferences from those allegations in the
plaintiff's favor.” Transit Exp., Inc. v.
Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001).
FDCPA, at 15 U.S.C. § 1692k(d), grants to the district
courts subject matter jurisdiction to enforce any liability
created by violations of the Act. Yet, Potestivo and Halberg
argue the court lacks the power to hear this case because, as
a government contractor, they are entitled to qualified
immunity under Yearsley. (Dkt. 12 at 3.)
Yearsley held that a construction contractor working
for the United States government could not be held
“liable for his conduct causing injury to another,
” unless either “he exceeded his authority or
that [authority] was not validly conferred.” 309 U.S.
at 21. Yearsley teaches that, where the sovereign
has agreed to accept responsibility for the actions of a
contractor that has acted within the scope of its authority,
the proper defendant is the United States and the proper
court is the Court of Claims. Compare Tillett v. J.I.
Case Co., 756 F.2d 591 (7th Cir. 1985) (where government
contractor established, inter alia, that it supplied
equipment in conformity with government specifications,
government contractor defense applied, but because the
government had not waived sovereign immunity, the plaintiff
could not recover for her loss). Thus, only if the government
has immunized its contractors from liability for violations
of the FDCPA would Yearsley have any bearing here.
event, the district court does not lack subject matter
jurisdiction to determine whether the government contractor
defense applies. See Ackerson v. Bean Dredging, LLC,
589 F.3d 196, 207 (5th Cir. 2009) (“Yearsley
does not … address the court's power to hear a
case.”); Adkisson v. Jacobs Eng'g Grp.,
Inc., 790 F.3d 641, 649 (6th Cir. 2015) (remanding for
trial court to determine under Rule 12(b)(6) whether, based
on the pleadings, the defendant was eligible for qualified
immunity under the Yearsley doctrine).
it is highly unusual to dismiss a complaint based on an
affirmative defense “since a complaint need not
anticipate and overcome affirmative defenses.”
Cancer Found., Inc. v. Cerberus Capital Mgmt., LP,
559 F.3d 671, 674 (7th Cir. 2009). “[O]nly where the
allegations of the complaint itself set forth everything
necessary to satisfy the affirmative defense” is
dismissal appropriate. Chi. Bldg. Design, P.C. v.
Mongolian House, Inc., 770 F.3d 610, 613-14 (7th Cir.
2014) (quotation marks omitted). Because this complaint does
not plead facts that establish the government contractor
defense, dismissal based on Yearsley is
defendants identify no case in which a debt collector working
for the government has been found immune from liability under
Yearsley. This is likely because, as the Secretary
of Education has stated, “third party collectors of
defaulted student loans . . . [are] subject to the Fair Debt
Collection Practices Act.” 55 Fed. Reg. 40120 (1990).
Additionally, defendants ignore the fact that the FDCPA
explicitly defines those excluded from the definition of
“debt collector” and not subject to the Act and
that list does not include debt collectors working on a
government contract. See 15 U.S.C. §
1692a(6)(C) (“The term [debt collector] does not
include . . . any officer or employee of the United States or
any State to the extent that collecting or attempting to
collect any debt is in the performance of his official
duties.”) “A statute should be construed so that
effect is given to all its provisions, so that no part will
be inoperative or superfluous, void or insignificant.”
Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159
L.Ed.2d 172 (2004). Had it wished to do so, Congress could
have extended this exemption to include agents or contractors
as well as officers and employees of the United States.
Instead, Congress limited immunity to only officers or
defendants' motion to dismiss based on qualified immunity