Bjerke, Peter v. Messerli & Kramer, P.A. et al

Brief in Support of 8 Motion to Dismiss

W.D. Wis.December 13, 2016

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN COURT FILE NO.: 3:16-CV-0748 Peter Bjerke, Plaintiff, vs. Messerli & Kramer, P.A., Wisconsin CVS Pharmacy, LLC, CVS RX Services, Inc. Defendants. MEMORANDUM IN SUPPORT OF DEFENDANT MESSERLI & KRAMER P.A.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Messerli & Kramer P.A. (-Messerli‖) respectfully submits this Memorandum of Law in support of its Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. INTRODUCTION On November 14, 2016, Plaintiff Peter Bjerke (-Bjerke‖) commenced this action against Defendants alleging Messerli violated Sections 1692 (e) and (f) of the Fair Debt Collection Practices Act (-FDCPA‖), and Sections 427.107(j) and (h) of the Wisconsin Consumer Act (-WCA‖). The complaint also alleges negligent supervision against Messerli along with the co-defendants. The complaint further alleges that Bjerke‘s employer and the garnishee in the underlying cases committed civil theft and violated the WCA. Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 1 of 28 2 This matter is before the Court on Messerli‘s motion to dismiss the complaint against it for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Bjerke‘s claims fail because his claims were brought outside of the one year statute of limitations that governs FDCPA actions under 15 U.S.C. § 1692k(d). Bjerke‘s claims also fail as against Messerli because CVS or RX is responsible for the acts alleged to have violated the FDCPA and WCA . Bjerke admits in his Complaint that CVS or RX are responsible for the errors made in this matter. (See Complaint Paragraphs 24-26.) STATEMENT OF FACTS Messerli, on behalf of its creditor client, commenced an action in Dunn County, Wisconsin for an unpaid credit card debt on March 18, 2014. The court can take judicial notice of the court record in Dunn County case 14SC167. Bjerke failed to respond to the complaint, and Messerli‘s client obtained judgment on April 2, 2014. (See CCAP record Dunn County case 14SC167.) Bjerke does not dispute the amount owed and does not dispute the judgment against him. In order to collect on the judgment, Messerli issued a garnishment against employer CVS Caremark on November 10, 2014. (See CCAP record Dunn County case 14SC167.) On December 8, 2014, Messerli received a garnishee answer to creditor which stated that CVS would garnishee its Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 2 of 28 3 employee‘s earnings. (Id.) After not receiving a funds or further response from CVS Caremark, Messerli filed another garnishment on October 15, 2015. (Id.) Bjerke filed a response to the second garnishment stating that his employer had already garnished his account for the total amount of funds. (Id.) Bjerke admits in his complaint that it was CVS or RX that made a mistake when they failed to pay the garnishment funds in question to Messerli. (See Complaint Paragraph 24.) He additionally admits that an agent from Messerli attempted several times to get CVS to release the funds, but CVS failed to release said funds to Messerli. (See Complaint Paragraph 25.) Pending an investigation of Bjerke‘s claims, Messerli filed an objection to the garnishee‘s answer on February 3, 2016. (Id.) In its objection, Messerli stated that -Plaintiff continues to make a good faith effort to investigate the claim of Defendant, including letters and calls to Garnishee and phone calls to the Defendant, neither parties have responded.‖ (Weber Decl. ¶ 3, Ex. 1.) Messerli added to its motion two separate letters that were sent to CVS in an attempt to resolve the matter and collect garnishment funds that discussed several phone calls and attempts to resolve the matter with CVS. (Id.) The hearing on this motion was postponed and later dismissed after pending resolution of the issue with CVS. (Id.) Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 3 of 28 4 After receiving the funds, a satisfaction was filed by Messerli on June 21, 2016. (Complaint Paragraph 26.) Bjerke stated in his complaint that after the funds were released to Messerli that it properly satisfied the judgment. (Complaint Paragraph 26.) Bjerke admits in his complaint that the problem in this case was a direct cause of CVS or RX and not Messerli. (See Complaint Paragraph 26.) LEGAL STANDARD Rule 12 of the Federal Rules of Civil Procedure provides for the dismissal of a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Dismissal is appropriate when all the facts alleged in the complaint are accepted as true and a plaintiff has not pleaded -facts to state a claim to relief that is plausible on its face.‖ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), -the factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8.‖ Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008); see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007). Although a complaint need not contain -detailed factual allegations,‖ it must contain facts with enough specificity -to raise a right to relief above the Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 4 of 28 5 speculative level.‖ Id. at 555. -Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,‖ are insufficient under the standard set forth in Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). -[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but not ‗show[n]‘-‗that the pleader is entitled to relief.‘‖ Id. at 679 (alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)). In determining whether a complaint survives a motion to dismiss under Rule 12(b)(6), the court need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. Of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions drawn by the pleader from the facts alleged. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). The court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998), or credit a complaint‘s -‗bald assertions‘‖ or -‗legal conclusions,‘‖ Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). -While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.‖ Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 5 of 28 6 When deciding a motion for judgment on the pleadings, a court may consider the contents of the pleadings. Alexander v. City of Chi., 994 F.2d 333, 335 (7th Cir. 1993); Union Carbide Corp. v. Viskase Corp. (In re Envirodyne Indus., Inc.), 183 B.R. 812, 817 (Bankr. N.D. Ill. 1995). Courts may consider documents incorporated by reference in the pleadings. United States v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991). Courts may also take judicial notice of matters of public record. Id. ColeMichael Invs., L.L.C. v. Burke (In re Burke), 398 B.R. 608, 620, 2008 Bankr. LEXIS 3489, *19-20 (Bankr. N.D. Ill. 2008). -Rule 12(b)(6) motions are not automatically converted into motions for summary judgment simply because one party submits additional matters in support of or opposition to the motion.‖ Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (quoting Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999)). -[T]he court has complete discretion to determine whether or not to accept any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion.‖ Stahl v. United States Dep't of Agric., 327 F.3d 697, 701 (8th Cir. 2003) (quoting 5A Wright & Miller, Federal Practice and Procedure § 1366, at 491 (2d ed. 1990)). ARGUMENT I. PLAINTIFF’S FDCPA CLAIMS ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS. Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 6 of 28 7 Bjerke‘s claims against Messerli should be dismissed because all of his claims fall outside of the one year statute of limitations applicable to FDCPA actions. In his complaint filed on November 14, 2016, Bjerke‘s main allegations against Messerli relates to Messerli sending CVS a second garnishment on October 15, 2015. This allegation is barred by the one year statute of limitations under the FDCPA. The statute of limitations on FDCPA actions is one year. 15 U.S.C. § 1692k(d). A violation of the FDCPA accrues when the debtor receives notice of the violation. See Kirscher v. Messerli & Kramer, P.A., No. 05-1901, 2006 U.S. Dist. LEXIS 3346, at *10 (D. Minn. Jan. 14. 2006) (concluding that violation first occurred when plaintiff had notice of misrepresentation); Calka v. Kucker, Kraus & Bruh, LLP, No. 98 Civ. 0990, 1998 U.S. Dist. LEXIS 11868, at *9 (S.D.N.Y. Aug. 3, 1998) (finding statute of limitation had expired where plaintiff was on notice of misrepresentation and unconscionable conduct more than one year before filing and subsequent communications did not contain any new misrepresentations). Bjerke received notice of the alleged violation when the garnishment was filed on October 15, 2016. Moreover, several courts have agreed that a plaintiff in an FDCPA action cannot assert a -continuing violation‖ theory. See Kirscher, 2006 U.S. Dist. LEXIS 3346, at *11 (noting that -case law addressing the issue indicates that a continuing violation theory is not available under the Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 7 of 28 8 FDCPA‖); see also Sierra v. Foster & Garbus, 48 F. Supp. 2d 393, 395 (S.D.N.Y. 1999) (rejecting continuing violation theory). Accordingly, Plaintiff is prohibited from contending that -continuing violations‖ reset the statute of limitations. -New communications . . . concerning an old claim . . . [do] not start a new period of limitations.‖ Fraenkel v. Messerli & Kramer, P.A., No. 04-1072, 2004 U.S. Dist. LEXIS 15196, at *13 (D. Minn. July 29, 2004) (quoting Campos v. Brooksbank, 120 F. Supp. 2d 1271, 1274 (D.N.M. 2000)) (alterations in original) (emphasis added). Thus, Bjerke cannot claim now that phone calls related to the second garnishment renewed the statute of limitations in this case. II. BJERKE FAILS TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED UNDER THE FDCPA. Bjerke fails to state a claim in which relief can be granted. While it is unclear from Bjerke‘s complaint which actions he claims Messerli took that violate the FDCPA, Messerli assumes for purposes of this brief that Bjerke alleges that Messerli violated the FDCPA when it filed the second garnishment and when it -called and left messages for the Plaintiff on Plaintiff‘s cell phone on several occasions.‖ (Complaint paragraphs 19, 24.) Bjerke specially alleges that Messerli‘s actions violated §1692(f), which prohibits unfair and unconscionable means to collect a debt including attempting to collect on a debt not authorized by law, and §1692(e), which Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 8 of 28 9 prohibits false and misleading representations. However, Bjerke has failed to state how sending a garnishment when Messerli is legally entitled to funds could violate the FDCPA. He has also failed to allege in what way phone calls made to Bjerke were misleading or unfair, as he has not provided alleged the nature, frequency or reasoning for the phone calls. A. Phone Calls To Plaintiff On “Several Occasions” Do Not State A Claim Upon Which Relief Can Be Granted Under The FDCPA. Plaintiff alleges in his complaint that Messerli called and left messages on Bjerke‘s phone on several occasions through the spring of 2016. (Compl. para. 27.) However, Plaintiff fails to allege in his complaint how those phone calls were misleading under the FDCPA. Plaintiff fails to state in his complaint the number of phone calls that were made the him over the course of years that the complaint covers. Plaintiff also fails to allege the nature or reasons that the phone calls were made. Bjerke seems to be alleging that the phone calls were misleading or somehow an unfair way to attempt to collect on a debt owed. However, he never alleges in his complaint the nature of the phone calls made. As stated in Plaintiff‘s complaint, an agent of Messerli attempted several times to have CVS release the garnished funds. (Complaint Paragraph 25). Communication with Bjerke was necessary to resolve the issue with CVS and to keep Bjerke informed regarding the status of that resolution. As noted in the underlying Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 9 of 28 10 court documents, Messerli withdrew its objection and dismissed the scheduled hearing on that objection. After receiving the garnished funds, Messerli filed a satisfaction of judgment. As noted in the fact section, phone calls were indeed made to Bjerke in response to his objection to the garnishment in a good faith attempt to resolve the matter. Bjerke does not even allege in his complaint that phone calls made to him were in an attempt to collect on a debt: a necessary element of the FDCPA. Bjerke only alleges that several phone calls were made by Messerli to Bjerke, and case law makes clear that phone calls in and of themselves do not violate the FDCPA. -Any call from a debt collector may be presumed to be unwelcome, but that alone is insufficient to constitute a violation of the FDCPA.‖ Martin v. Select Portfolio Serving Holding Corp., 2008 U.S. Dist. LEXIS 16088, *16, 2008 WL 618788 (S.D. Ohio Mar. 1, 2008). While there is no clear definition for what constitutes misleading or harassing phone calls, courts are required to weigh and consider a number of factors, including the frequency, pattern, and nature of the calls, to determine whether the phone calls violate the FDCPA. See Bassett v. I.C. Sys., Inc., 715 F. Supp. 2d 803, 809-10 (N.D. Ill. 2010). Here Bjerke does not even allege the frequency, pattern or nature of the phone calls that were made. Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 10 of 28 11 Additionally, phone calls made on -several occasions‖ over the course of months or years do not violate the FDCPA. See Pugliese v. Prof'l Recovery Serv., Inc., 2010 U.S. Dist. LEXIS 64111, 2010 WL 2632562, *10 (E.D. Mich. June 29, 2010) (350 calls in an eight month period even after the plaintiffs asked the collector to cease calling found insufficient as a matter of law to establish violation of FDCPA § 1692d(5)); Tucker v. CBE Grp., Inc.,710 F.Supp.2d 1301, 1303 (M.D. Fla. 2010) (57 calls and 6 messages to the plaintiff found not harassing even though defendant called 7 times a day where plaintiff never notified defendant it was calling the wrong number demonstrated an intent to reach the debtor, not an intent to harass); Carman v. CBE Group, Inc., 782 F. Supp.2d 1223, 1232 (D. Kan. 2011) ("[T]he evidence [of 149 calls over two months] suggests an intent by CBE to establish contact with plaintiff, rather than an intent to harass.")); Martin v. Select Portfolio Serving Holding Corp., 2008 U.S. Dist. LEXIS 16088, 2008 WL 618788, *6 (S.D. Ohio March 3, 3008) ("Any call from a debt collector may be presumed to be unwelcome, but that alone is insufficient to constitute a violation of the FDCPA."); Beeders v. Gulf Coast Collection Bureau, 796 F.Supp.2d 1335, 1338 (M.D. Fla.2011) (finding no FDCPA violation where the calls occurred for five months, they were received between 8:00 A.M. to 11:00 A.M., and occurred at a frequency of no more than one call per day); Valle v. Nat'l Recovery Agency, No. 10-2775, 2012 U.S. Dist. LEXIS 69564, 2012 WL Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 11 of 28 12 1831156, at *2 (M.D. Fla. May 18, 2012) (listing six separate cases where summary judgment was granted finding no FDCPA violation where the plaintiff's evidence was solely high call volume); Lardner, 17 F.Supp.3d at 1226 (granting summary judgments where debt collector made 142 automated calls over an eight month period between the hours of 8:00 a.m. and 8:00 p.m. and debtor did not request the communications stop)); Lynch v. Nelson Watson & Assocs., LLC, No. 10-CV-2025, 2011 U.S. Dist. LEXIS 66031, 2011 WL 2472588, at *2 (D. Kan. June 21, 2011) (fifty-six calls over approximately three months, without more, was not an FDCPA violation); Clingaman v. Certegy Payment Recovery Servs., No. 10-2483, 2011 U.S. Dist. LEXIS 56368, 2011 WL 2078629, at *4 (S.D.Tex. May 26, 2011) (fifty-five calls between March 4 and June 18 was not a violation where plaintiff never asked defendant to stop calling); Jones v. Rash Curtis & Assocs., No. 10-CV- 0225, 2011 U.S. Dist. LEXIS 59703, 2011 WL 2050195, at *2-3 (N.D.Cal. Jan. 3, 2011) (179 calls was not a violation where, among other things, plaintiff did not ask defendant to stop calling)). B. There Is No FDCPA Violation In Issuing A Second Garnishment When Messerli Did Not Receive Any Payment From The First Garnishment. The crux of Bjerke‘s allegations against Messerli relate to filing a second garnishment. As stated previously, this allegation is specifically time barred under the applicable statute of limitations under §1692k. However, Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 12 of 28 13 even if the Court determines that the claim is not time barred, the claim still fails as Messerli did not violate the FDCPA when it filed the second garnishment. It is clear from the complaint and undisputed by Bjerke that Messerli NEVER received any funds from CVS or RX until after the second garnishment was filed. (Complaint paragraphs 18, 24). It is completely undisputed by Bjerke that Messerli‘s client was lawfully owed the full amount of judgment. (Complaint paragraph 13). It is undisputed that Messerli was not paid funds by CVS or RX after the first garnishment action. (Complaint paragraphs 18 & 24). Thus, it is clear that the full amount of judgment was still owed to Messerli‘s client at the time the second garnishment was filed. Section 1692f(1) of the FDCPA specifically states that a debt collector must not collect of any amount unless such amount is expressly authorized by the agreement creating the debt or permitted by law. Here it is undisputed that at the time the second garnishment was filed that Messerli‘s client was owed the full amount of the debt as determined by the court‘s judgment. Thus, this Court should conclude as a matter of law that Messerli did not violate the FDCPA when it filed the second garnishment. To state a claim under the FDCPA, Plaintiff needs to allege that Messerli sought to collect an amount greater than that owed on the debt. Wilson v. Asset Acceptance, LLC, 864 F. Supp. 2d 642, 645, 2012 U.S. Dist. LEXIS 78266, *7-8, 2012 WL 1995117 (E.D. Ky. 2012) (-Because Plaintiff Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 13 of 28 14 does not allege that Defendant sought to collect an amount greater than that owed, he has failed to state a claim under § 1692f(1).‖); See also Taylor v. Midland Credit Mgmt., Inc., 2008 U.S. Dist. LEXIS 14328, 2008 WL 544548, at *4 (W.D. Mich. Feb. 26, 2008)("[B]y its terms § 1692f(1) addresses the abusive practice of collecting an amount greater than that which is owing," thus, "where the amount being collected by the collection agency was not different than the amount owed, § 1692f(1) was inapplicable to the plaintiff's claim. . . ."). Bjerke does not even allege that Messerli attempted to seek funds that it was not owed, because he knows that Messerli‘s client was still owed the funds at the time of the second garnishment because the funds were never sent by CVS or RX. While there is no case law that is exactly on point on this issue, a similar situation occurred in Medical Recovery Servs., LLC v. Bonneville Billing & Collections, Inc., 2013 Ida. App. LEXIS 4, *7, 2013 WL 204744 (Idaho Ct. App. Jan. 18, 2013). That case involved two collection agencies and an employer garnishee. The employer garnishee paid the garnished funds to the wrong collection agency. In a relevant section of the case, the collection agency argued to the Court that had it continued to garnish after already filing a garnishment action that was not satisfied it would be in violation of the state statute that stated -The creditor shall be solely responsible for insuring that the amounts garnished do not exceed the amount due on the Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 14 of 28 15 judgment.‖ Ohio Code §8-509. (§1962(f) and (e) additionally requires that garnished amounts do not exceed judgment amount). The Court stated that the creditor had every right to continue with garnishments as the obligation had not yet been paid, -Here, the employer never fulfilled its obligation on the original garnishment and, therefore, [the creditor] had every right to continue to seek payment from the employer under the garnishment. Continuing the garnishment in these circumstances would not have been at odds with [the state statute].‖ Medical Recovery Servs., LLC v. Bonneville Billing & Collections, Inc., 2013 Ida. App. LEXIS 4, *7, 2013 WL 204744 (Idaho Ct. App. Jan. 18, 2013). The case of Carney v. Unifund CCR, LLC is also particularly instructive. Carney v. Unifund Ccr, 2016 U.S. Dist. LEXIS 168707, *1 (D. Minn. Dec. 6, 2016). In that case, the creditor filed multiple garnishments after judgment on the account. Consumer alleged violations of sections e and f of the FDCPA for filing multiple garnishment and making false statements on garnishment forms, among other things. In that case, the creditor argued that garnishments were permissive litigation activity rather than the type of misrepresentations that are actionable under the FDCPA. The court concluded that, -as an initial matter there is nothing unlawful about Defendant‘s multiple efforts to garnish [consumer‘s] funds.‖ Id at *5. In dismissing the claims for misrepresentations on a garnishment form, the Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 15 of 28 16 Court went further to state that -courts have ordered dismissal of §§1692e and 1692f claims for litigation conduct that was more closely related to debt collection than the misrepresentations alleged here.‖ Id at *9. The court further made the determination that the garnishment filing was a communication made to the court and not the debtor. Id at *10 Additionally, case law is clear multiple garnishments on accounts when funds are owed do not violate the FDCPA. -Multiple garnishment summonses are permissible when the property sought to be garnished is a fluid property, such as a bank account or wages.‖ Ceridian Corp. v. SCSC Corp., 212 F.3d 398, 405, 2000 U.S. App. LEXIS 8923, *18-19, 47 Fed. R. Serv. 3d (Callaghan) 707 (8th Cir. Minn. 2000). -Sending two garnishments does not amount to harassment and are not unfair. Wilson v. Business & Prof'l Credit Mgmt. of Kearney, Inc., 1986 U.S. Dist. LEXIS 31002 (Neb. Dist. 8th August 1989). Furthermore, Bjerke cannot make a claim for a violation of the FDCPA for the second garnishment as the garnishment was an action against CVS and not Bjerke. Messerli‘s second garnishment was not an action against a consumer but rather was an action against the garnishee. The 7th Circuit has concluded that a garnishment action is against an employer and not against the debtor. In McDermott v. Barton, the court examined Illinois wage garnishment history and found that post-judgment enforcement proceedings Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 16 of 28 17 like garnishments are instituted against the third-party employer. McDermott v. Barton, No. 14-CV-704-NJR-PMF, 2014 U.S. Dist. LEXIS 165656, 2014 WL 6704544, at *7 (S.D. Ill. Nov. 26, 2014). The same result was found in Etro v. Blitt and Gaines, P.C., in which the court examined the Illinois wage deduction scheme and found that they are not legal actions against any consumer as defined by the FDCPA. Etro v. Blitt and Gaines, P.C., No. 14-C-8924, 2015 U.S. Dist. LEXIS 33262, 2015 WL 1281521, at *2-3 (N.D. Ill. March 18, 2015). The 7th Circuit in Lebrun also held that: -a wage garnishment action is against the employer and not against the debtor. The proceeding is consistently referred to as a proceeding against the employer…While the debtor is involved in these proceedings, their participation is minimal compared to that of the employer. The summons is issued against the employer, the employer must answer, the employer must respond to the interrogatories, and final judgment is made against the employer.‖ Lebrun v. Blitt & Gaines, P.C., 2015 U.S. Dist. LEXIS 110084, *8-9, 2015 WL 4978689 (N.D. Ill. Aug. 19, 2015). The First and Eleventh Circuits have also held that a wage garnishment is not an action against a consumer and is not subject to the FDCPA. Smith v. Solomon & Solomon, P.C., 714 F.3d 73, 76-77 (1st Cir. 2013); Pickens v. Collection Servs. of Athens, Inc., 165 F. Supp. 2d 1376 (M.D. Ga.2001), aff'd, 273 F.3d 1121 (11th Cir. 2001). C. All Of Plaintiff’s Claims Of FDCPA Violations Should Be Dismissed As The Plaintiff Has Failed To Show How Any Of The Violations Are Material Violations Under The FDCPA. Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 17 of 28 18 Bjerke has failed to allege materliality, a necessary element of FDCPA violations. The 7th Circuit has concluded that the Court can decide materiality as a question of law and dismiss the complaint for failure to allege a material allegation. Rodriguez v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 2009 U.S. Dist. LEXIS 23044, *2-4, 2009 WL 631613 (N.D. Ill. Mar. 10, 2009). See. Also Buchanan v. Northland Grp., Inc., 776 F.3d 393, 397 (6th Cir. 2015) (-A claim may be implausible on its face because even an unsophisticated consumer would not be confused, making discovery pointless and jury resolution unnecessary.‖) In a leading materiality case, the Seventh Circuit Court of Appeals explained the concept of materiality in the context of an FDCPA claim: Materiality is an ordinary element of any federal claim based on a false or misleading statement. We do not see why materiality should not equally be required in an action based on 1692e. The statute is designed to provide information that helps consumers to choose intelligently, and by definition immaterial information neither contributes to that objective (if the statement is correct) nor undermines it (if the statement is incorrect). . . . A statement cannot mislead unless it is material, so a false but non-material statement is not actionable. Hahn v. Triumph P’ships LLC, 557 F.3d 755, 757-58 (7th Cir. 2009) (internal citations omitted). The Ninth Circuit held that -[i]n assessing FDCPA liability, we are not concerned with mere technical falsehoods that mislead no one, but instead with genuinely misleading statements that may frustrate a consumer‘s ability to intelligently choose his or her response.‖ 592 F.3d at 1034; see also Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 18 of 28 19 Maynard v. Cannon, 401 F. App'x 389, 397 (10th Cir. 2010) (-FDCPA does not result in liability for every statement later alleged to be inaccurate, no matter how small or ultimately harmless.‖). In short, -only misstatements that are important in the sense that they could objectively affect the least sophisticated consumer‘s decision making are applicable.‖ Powell v. Palisades Acquisition XVI, LLC, 782 F.3d 119, 126 (4th Cir. 2014) (quoting Black‘s Law Dictionary 1124 (10th ed. 2014) (defining -material‖)).‖ The FDCPA protects consumers only against a false statement that is material, meaning that the statement "would . . . influence a consumer's decision . . . to pay a debt . . . ." Muha v. Encore Receivable Mgmt., Inc., 558 F.3d 623, 628 (7th Cir. 2009). Messerli‘s actions in filing the second garnishments or calling Bjerke did not materially influence his decision making. Bjerke knew his wages had already been garnished. None of Messerli‘s actions confused Bjerke into paying more to Messerli, but rather he spent -his time, money and other limited resources to fix the problem caused by CVS or RX.‖ (Complaint paragraph 26). Bjerke was not misled by the second garnishment nor did affect his decision making ability. He knew his employer had failed to pay and he turned to fixing the problems his employer caused. III. PLAINTIFF FAILS TO STATE A CLAIM IN WHICH RELIEF CAN BE GRANTED UNDER THE THEORY OF NEGLIGENT SUPERVISION AND TRAINING Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 19 of 28 20 Plaintiff's claim of negligent supervision and training is dependent upon his FDCPA claim. As his FDCPA claims are barred by the statute of limitations, -[he] may not evade that bar by re-casting [his] claim as one for negligence or negligent supervision.‖ Taylor v. Merchs. Credit Corp., 2013 U.S. Dist. LEXIS 124810, *15-16, 2013 WL 4675958 (W.D. Wash. Aug. 30, 2013). Plaintiff is attempting to work around the statute of limitation by alleging negligent supervision, but fails to state a claim in which relief can be granted. If the court determines that Messerli‘s actions in filing a second garnishment and making phone calls was not wrong and determines that Messerli did not violate the FDCPA or the Wisconsin Consumer Act then the Court need not consider Plaintiff‘s negligent supervision and training claims. Negligent supervision claims are derivative of the underlying wrongful act of the employee. See John Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95, ¶2, 303 Wis. 2d 34, 734 N.W.2d 827 (Wis. 2007). See also Andersen v. State Collection Serv., 2012 Wisc. App. LEXIS 743, *10, 2012 WI App 118, 344 Wis. 2d 520, 822 N.W.2d 737, (Wis. Ct. App. 2012). If the court does consider Plaintiff‘s negligent supervision and training claims, the claims must be dismissed because Plaintiff failed to allege the basic elements of a negligent supervision and training claim. To maintain a cause of action for negligent supervision, a plaintiff must show: (1) the Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 20 of 28 21 employer owed a duty of care to the plaintiff, (2) the employer breached its duty, (3) a wrongful act or omission of an employee was a cause-in-fact of the plaintiff's injury, and (4) an "act or omission of the employer was a cause-in- fact of the wrongful act of the employee." Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 262, 580 N.W.2d 233 (1998); Doe 67C v. Archdiocese of Milwaukee, 2005 WI 123, P43, 284 Wis. 2d 307, 332-333, 700 N.W.2d 180, 192, 2005 Wisc. LEXIS 391, *29 (Wis. 2005). Aside from the fact that Plaintiff‘s complaint fails to specifically allege all elements negligent supervision, Plaintiff‘s complaint does not even allude to the elements necessary for negligent supervision. First, Bjerke failed to show or state that Messerli owed a duty of care to the Bjerke. Second, the complaint does not include any facts supporting an allegation that Messerli failed to adequately and properly train their respective coworkers or employees. See Satorius v. Proassurance Wis. Ins. Co., 2012 Wisc. App. LEXIS 853, *14, 2012 WI App 132, 345 Wis. 2d 62, 823 N.W.2d 840 (Wis. Ct. App. 2012); L.L.N. v. Clauder, 209 Wis. 2d 674, 698-99 n.21, 563 N.W.2d 434 (1997) (-The employer's liability does not result solely because of the relationship of the employer and employee, but instead because of the employer's independent negligence.‖) Next, Bjerke also does not allege how that failure caused a wrongful act of one of Messerli‘s employees. -In negligent hiring, training or supervision ... Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 21 of 28 22 the causal question is whether the failure of the employer to exercise due care was a cause-in-fact of the wrongful act of the employee that in turn caused the plaintiff's injury. In other words, there must be a nexus between the negligent hiring, training, or supervision and the act of the employee.‖ Hansen v. Tex. Roadhouse, Inc., 2013 WI App 2, P18, 345 Wis. 2d 669, 686, 827 N.W.2d 99, 107, (Wis. Ct. App. 2012). Finally, as stated throughout this brief, Bjerke fails to show in which way Messerli‘s employees did anything wrong. Bjerke does not allege any facts that would support a claim that it was Messerli‘s actions and not the actions of CVS that were the cause in fact of Bjerke‘s alleged damages. Milwaukee Area Tech. College v. Frontier Adjusters, 2008 WI App 76, P23, 312 Wis. 2d 360, 379, 752 N.W.2d 396, 405, 2008 Wisc. App. LEXIS 306, *20 (Wis. Ct. App. 2008). (-Simply put, it is not enough for a plaintiff to say… that a defendant did something or did not do something and that the plaintiff was damaged; the plaintiff must show that what the defendant did or did not do violated an applicable standard of care.‖) Finally, Plaintiff failed to plead severe emotional distress which is required in order to prevail under a theory of negligence in Wisconsin. In order to be directly and specifically compensable in a tort action in Wisconsin, emotional distress must be "severe." Bowen v. Lumbermens Mut. Cas. Co., Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 22 of 28 23 183 Wis. 2d 627, 652-53, 517 N.W.2d 432 (1994). Severe emotional distress has been defined as follows: -The plaintiff must demonstrate that he suffered an extreme disabling emotional response to the defendant's conduct. The severity of the injury is not only relevant to the amount of recovery, but is a necessary element to any recovery. The plaintiff must demonstrate that he was unable to function in his other relationships because of the emotional distress caused by defendant's conduct. Temporary discomfort cannot be the basis of recovery. Alsteen v. Gehl, 21 Wis. 2d 349, 360-61, 124 N.W.2d 312 (1963). This court has explained that ‗severe emotional distress is anxiety of such substantial quantity or enduring quality that no reasonable person could be expected to endure it.‘ Evrard v. Jacobson, 117 Wis. 2d 69, 73, 342 N.W.2d 788 (Ct. App. 1983).‖ Hicks v. Nunnery, 253 Wis. 2d 721, 742-743, 643 N.W.2d 809, 818 (Wis. Ct. App. 2002). Plaintiff‘s allegations of -preoccupation‖ and -annoyance‖ do not rise to the level of severe emotional distress, which Wisconsin Courts have determined should be commendable under the rules. IV. PARAGRAPH 32 OF DEFENDANT’S COMPLAINT FAILS TO STATE A CLAIM IN WHICH RELIEF CAN BE GRANTED. Messerli requests that this Court dismiss all claims related to paragraph 32 of Plaintiff‘s complaint. Plaintiff‘s complaint alleges that through collection actions and filing Court action Messerli was grossly negligent and alludes its actions related thereto violate the FDCPA. Case law is clear that collecting on accounts or using the court system to collect on accounts is not illegal or a violation of the law. Although an attempt to collect a defaulted debt "will be unwanted by a debtor," and, therefore, has the Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 23 of 28 24 potential to embarrass or upset, courts have found that a debt collector's reliance on the court system is not an oppressive or abusive tactic under the FDCPA. Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 330-31 (6th Cir. 2006) (concluding that filing a debt collection lawsuit does not have the natural consequence of harassing, abusing, or oppressing a debtor). See also, Neild v. Wolpoff & Abramson, LLP, 453 F. Supp. 2d 918, 925 (E.D. Va. 2006) (concluding that "[p]laintiff's allegations that [d]efendants violated the FDCPA merely by attempting to collect a disputed debt do not state a claim upon which relief can be granted"); Watkins v. Peterson Enters., 57 F. Supp. 2d 1102, 1108-09 (E.D. Wash. 1999) (concluding that a debt collector's practice of serving multiple writs of garnishment was a "far cry" from [*13] the types of behavior prohibited by § 1692d). See also Eichman v. Mann Bracken, LLC, 689 F. Supp. 2d 1094, 1100 (W.D. Wis. 2010) ("Even though a debtor may not believe that she owes a debt or ultimately is able to prove that the debt is invalid, a creditor's use of the state court system to preserve its rights is not improper.") V. PLAINTIFF FAILED TO STATE A CLAIM AS TO HIS WCA CLAIMS UNDER SECTIONS 427.104(j) AND 427.104(h). A. WCA Section 427.104(j). Plaintiff‘s First Claim asserts a violation of WCA § 427.104(j), which states that a debt collector may not -[c]laim, or attempt or threaten to enforce Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 24 of 28 25 a right with knowledge or reason to know that the right does not exist.‖ To state a claim under § 427.104(j), Bjerke must assert that Messerli claimed, attempted, or threatened to enforce a right it knew or had reason to know it did not have. However, Plaintiff does not state any action Messerli took without a right to do so. As previously discussed, the factual basis of Plaintiff‘s Complaint alleges only two actions that Messerli took toward Plaintiff, neither of which give rise to a claim: (1) filing a second garnishment action after Messerli received no funds from the first garnishment (Complaint paragraph 19), and (2) calling and leaving messages -for the Plaintiff on Plaintiff‘s cell phone on several occasions through the spring of 2016.‖ (Complaint paragraph 27.) It is undisputed that Bjerke owed the judgment amount, and that the amount was not paid until spring 2016. Therefore, until the judgment amount was paid, Messerli had a right to take actions to collect the debt. Messerli cannot be considered to have violated § 427.104(j) when Messerli in fact had the right to take actions to collect the debt. In short, Bjerke makes a legal conclusion that Messerli violated the statute without identifying sufficient facts to give rise to the claim. B. WCA Section 427.104(h). Plaintiff‘s Third Claim makes another conclusory allegation that Messerli violated WCA § 427.104(h), which states that a debt collector may not -[e]ngage in other conduct which can reasonably be expected to threaten Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 25 of 28 26 or harass the customer or a person related to the customer.‖ However, Plaintiff‘s Complaint has not alleged conduct which can objectively be characterized as -expected to threaten or harass the customer.‖ Plaintiff fails to state how those actions would be expected to threaten or harass Plaintiff, and therefore fails to state sufficient facts to rise to the level of plausibility. As discussed in relation to Bjerke‘s FDCPA claims, after Messerli did not receive any funds from its first garnishment action, Messerli contacted CVS in attempts to resolve the matter and receive any garnished funds. After unsuccessful attempts at resolving the matter informally, Messerli filed a second garnishment action in an attempt to compel CVS to turn over funds properly owed to Messerli. Further, Messerli‘s garnishment action issued to CVS was correctly filed and cannot therefore be considered harassing or threatening. An earnings garnishment -is an action to collect an unsatisfied civil judgment for money damages plus statutory interest and costs, from earnings payable by the garnishee to the debtor.‖ Wis. Stat. § 812.32. Here, the judgment remained unsatisfied at the time the second garnishment was filed. (Complaint paragraph 24). Plaintiff‘s Complaint also acknowledges that after the judgment amount was paid subsequent to the second garnishment, the judgment was satisfied. (Complaint paragraph 26.) After the judgment was satisfied, no further contact was made by Messerli to Plaintiff. Plaintiff Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 26 of 28 27 cannot claim that filing the second garnishment was a threat to collect the same debt twice or that the filing amounted to harassment, when Plaintiff also states that Messerli had not been paid the first time. In short, Defendant cannot be alleged to have attempted to collect the judgment amount twice if it did not collect in the first place. With regard to phone calls made to Bjerke, again, Plaintiff‘s Complaint does not identify how the phone calls to Plaintiff were threatening or harassing. Plaintiff has not alleged that the nature or content Messerli‘s phone calls to Plaintiff threatened Plaintiff or that the number or nature of the calls amounted to harassment. Rather, Plaintiff‘s Complaint only states that Messerli employees -called and left messages for the Plaintiff on Plaintiff‘s cell phone on several occasions through the spring of 2016.‖ As discussed above, phone calls in and of themselves are not violations. Further, it is clear Messerli was attempting to resolve the situation with CVS, as Plaintiff‘s Complaint admits that agents of Messerli had attempted several times to resolve the issue with CVS. (Complaint paragraph 27.) Messerli‘s contacts to Plaintiff were meant to resolve the situation, and cannot reasonably be expected to threated or harass the Plaintiff. In Weber v. Great Lakes Educ. Loan Servs, the court found that calls to a consumer‘s attorney to explain its legal position appeared -an appropriate if not laudable step for a collection agent to take and is certainly not ‗harassing conduct.‘‖ Weber v. Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 27 of 28 28 Great Lakes Educ. Loan Servs., 2013 U.S. Dist. LEXIS 106266 *13, 2013 WL 3943507 (W.D. Wis. July 30, 2013). Similarly, here the phone calls cannot be considered threatening harassing. Instead, the calls were meant to keep Plaintiff updated on Messerli‘s attempts to resolve the matter with CVS or to work with Plaintiff to resolve the situation. Messerli‘s attempts to resolve the situation cannot be considered a WCA violation. CONCLUSION For the aforementioned reasons, the Complaint fails to state cognizable claim to relief under the FDCPA and WCA. All of Bjerke‘s FDCPA claims in this case are time barred under 15 U.S.C. § 1692k(d). If this court concludes that any of Defendant‘s actions are not time barred, the court should dismiss Plaintiff‘s claims for the additional reasons outlined herein. Messerli therefore respectfully requests that the court dismiss Bjerke‘s Complaint with prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dated: December 13, 2016. MESSERLI & KRAMER, P.A. By: s/ Derrick N. Weber Derrick N. Weber, #241623 Gina C. Ziegelbauer, #1083227 3033 Campus Drive, Suite 250 Plymouth, MN 55441 dweber@messerlikramer.com Telephone: (763) 548-7900 Facsimile: (763) 548-7922 ATTORNEYS FOR MESSERLI & KRAMER P.A. Case: 3:16-cv-00748-slc Document #: 9 Filed: 12/13/16 Page 28 of 28