Andress v. Daubert Law Firm LLC

• Decision Date: 13 November 2015
• Docket Number: Case No. 15–CV–423–JPS.
• Citation: 144 F.Supp.3d 1034
• Parties: Paul ANDRESS, Plaintiff, v. DAUBERT LAW FIRM LLC and Michael A. Stueland, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

144 F.Supp.3d 1034

Paul ANDRESS, Plaintiff,

v.DAUBERT LAW FIRM LLC and Michael A. Stueland, Defendants.

Case No. 15–CV–423–JPS.

United States District Court, E.D. Wisconsin.

Signed Nov. 13, 2015.

Paul Andress, Colgate, WI, pro se.

Brett B. Larsen, David J. Hanus, Hinshaw & Culbertson LLP, Milwaukee, WI, for Defendants.

ORDER

J.P. STADTMUELLER, District Judge.

The plaintiff, Paul Andress, proceeding pro se, filed his complaint in this action on April 9, 2015, and paid the filing fee. (Docket # 1). Mr. Andress sued Daubert Law Firm LLC (“Daubert”) and Michael Stueland, a “legal [r]epresentative” of Daubert (the Court will refer to Daubert and Mr. Stueland collectively as “the defendants”). (Docket # 4 ¶¶ 5–8). Mr. Andress claims that the defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the debt collection provisions of the Wisconsin Consumer Act (“WCA”), Wis. Stat. § 427.101 et seq. (Docket # 4 ¶¶ 17–65).

After the defendants appeared, they filed a motion to dismiss Mr. Andress' complaint (Docket # 12); that motion is now fully briefed (Docket # 13, # 24, # 26) and before the Court for a decision.

1. BACKGROUND

The Court begins by describing the background of this case, beginning with the state court action that underlies this case; then discussing the allegations in Mr. Andress' allegations; and finally describing the defendants' arguments in favor of their motion to dismiss.

1.1 Underlying State Court Action

This case's roots extend back to September 20, 2011, when Mr. Andress obtained a $33,120.25 loan from RBS Citizens, N.A. (“RBS”), for the purchase of a truck. (Docket # 14 ¶ 3; Docket # 14, Ex. 1 at 3–4).¹ Alleging that Mr. Andress stopped making payments on the loan, RBS filed a complaint against him in Washington County Circuit Court (“the state court”). (Docket # 14, Ex. 1). Mr. Stueland signed that complaint on behalf of Daubert, as attorney for RBS. (Docket # 14, Ex. 1 at 2).

Several weeks later, RBS (acting through the defendants) filed an affidavit of service, indicating that Mr. Andress received service of the complaint on February 27, 2014. (Docket # 14, Ex. 2).

Mr. Andress did not timely answer the complaint. (See Docket # 14, Ex. 5). Instead, two days after the deadline for filing an answer, he sent the state court a letter and affidavit asserting that he had never received service of the complaint. (Docket # 14, Ex. 3).

Notwithstanding that letter and affidavit, RBS (acting through the defendants) moved for default judgment, and the state court granted that motion; accordingly, on April 9, 2014, it entered default judgment against Mr. Andress in the amount of $32,019.34. (Docket # 14, Exs. 4, 5).

Five days later, Mr. Andress filed two documents with the state court, both of which challenged the judgment against him. (Docket # 14, Exs. 6, 7). In the first document, titled a “Motion for Summary Judgment,” Mr. Andress asserted that the state court lacked jurisdiction to render the judgment against him because he had never received service of the complaint. (Docket # 14, Ex. 6). In the second document, Mr. Andress asserted several “Motion[s] to Dismiss” based on additional arguments, including:

(1) that the state court lacked jurisdiction to render judgment against Mr. Andress because he is “a sovereign American Citizen and therefore, legislative statutes used by the federal and state governments do not apply to [him]” (Docket # 14, Ex. 7 at 1);

(2) Mr. Andress had already paid the debt in full (Docket # 14, Ex. 7 at 1–2);

(3) RBS had previously released Mr. Andress from the debt (Docket # 14, Ex. 7 at 2);

(4) RBS committed fraud on the state court by not apprising it of Mr. Andress' previous payment of and release from the debt (Docket # 14, Ex. 7 at 2–3) or RBS's sale of the debt to a third party (Docket # 14, Ex. 7 at 3);

(5) the lawsuit was a “sham” in light of the fact that “the debt had been satisfied ‘without recourse’ ” (Docket # 14, Ex. 7 at 3–4); and

(6) that service of process was insufficient (Docket # 14, Ex. 7 at 4).

While the two documents were captioned as motions for summary judgment and to dismiss, respectively, it appears that both actually sought to have the state court reconsider its entry of default judgment against Mr. Andress. (See Docket # 14, Exs. 6, 7).

Whatever relief those two documents sought, though, the state court never acted on them (see Docket # 15, Ex. 1); so, approximately two months later, Mr. Andress filed a “Motion to Reopen” his case (Docket # 14, Ex. 8). In that motion, Mr. Andress again asserted that he “was never served the complaint due to insufficiency of service of process,” and that, if the state court were to reopen the case, he would “succeed because the lien was released and the debt cleared by RBS....” (Docket # 14, Ex. 8).

On July 1, 2014, the state court denied Mr. Andress' Motion to Reopen. (Docket # 15, Ex. 1, Entry # 23). Mr. Andress did not file any further motions seeking relief from the judgment against him in the state court action (see Docket # 15, Ex. 1), so as far as this Court is concerned, the judgment against him remains valid and enforceable.

And, indeed, the defendants (acting as counsel for RBS) have attempted to enforce the judgment against Mr. Andress. (See, e.g., Docket # 14, Exs. 9, 10). To do so, they initiated two separate garnishments in the state court² —one filed on December 8, 2014 (Docket # 14, Ex. 9; Docket # 15, Ex. 1, Entry # 24, # 25, # 26) and the other filed on April 1, 2015 (Docket # 14, Ex. 10; Docket # 15, Ex. 1, Entry # 27, # 28, # 29). The defendants served notice of both garnishments on Mr. Andress and his employer. (Docket # 14, Exs. 9, 10; Docket # 14 ¶¶ 12–13).

1.2 Mr. Andress' Allegations in this Lawsuit

All of this activity prompted Mr. Andress to file the suit at hand: he argues that Daubert's and Mr. Stueland's actions violated the FDCPA and WCA. (See Docket # 4 ¶¶ 11–65). Mr. Andress' complaint³ is confusing, but in substance seems to posit the following five violations:

(1) the defendants did not properly serve Mr. Andress (see, e.g., Docket # 4 ¶¶ 11–12, 30(1));

(2) the defendants should not have filed suit against Mr. Andress, because they lacked evidence to substantiate the alleged debt and/or acted upon a cursory review of the evidence (see, e.g., Docket # 4 ¶¶ 15, 18–19, 21, 24, 26–29, 30(2)–38, 42–47, 55⁴ );

(3) the defendants made various misrepresentations to the state court, including improperly naming RBS as the “true identity of the real party in interest,” despite RBS having been fully compensated for the debt through insurance or securitization (see, e.g., Docket # 4 ¶¶ 14, 23, 39–40); (4) the defendants called Mr. Andress' home and employer, despite Mr. Andress' instruction that they not do so (see, e.g., Docket # 4 ¶ 23c); and

(5) Mr. Stueland called him at various points, during which he discussed Mr. Andress' debt and “completely de-humanized [him] by yelling, screaming and intimidating [him]” (Docket # 4, ¶¶ 13, 62–64).

Mr. Andress alleges that the defendants intended these purported violations to “harass, oppress, [and] abuse” him and have caused him “substantial harm” in various ways, thus entitling him to damages under the FDCPA and WCA. (Docket # 4 ¶¶ 20–21; see also Docket # 4 ¶¶ 23a–23b, 56–59). He also “demands that all of the garnishment of [his] earnings be returned to him.” (Docket # 4, Prayer for Relief (j)).

1.3 The Defendants' Motion to Dismiss

The defendants moved to dismiss this case. (Docket # 12).

Primarily, they argue that the Court must dismiss the case pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, because the Rooker–Feldman doctrine prevents this Court from reviewing the state court's judgment. (See, e.g., Docket # 13 at 5–10). In this regard, the defendants argue that Mr. Andress' complaint attacks the underlying state court judgment, itself, as that judgment constitutes the source of Mr. Andress' alleged injury. (See, e.g., Docket # 13 at 5–6 (citing Simmons v. Gillespie, 712 F.3d 1041, 1043 (7th Cir.2013) ); Arnold v. KJD Real Estate, LLC, 752 F.3d 700, 705 (7th Cir.2014) ).

Secondarily, the defendants argue that certain portions of the complaint should be dismissed under Rules 12(b)(6) and 12(b)(5). The defendants argue that the Court should dismiss Mr. Andress' WCA claims under Rule 12(b)(6) for failure to state a claim, because the WCA does not apply to consumer transactions in excess of $25,000.00. (Docket # 13 at 10–11 (citing Wis. Stat. § 421.202(6) )). The defendants argue that the Court should dismiss Mr. Andress' claims against Mr. Stueland, individually, pursuant to Rule 12(b)(5), because Mr. Andress did not properly serve his complaint upon Mr. Stueland. (Docket # 13 at 11–12).

Mr. Andress did not timely respond to the defendants' motion; however, after a reminder from the Court and an extension of time, he filed his response brief on October 16, 2015. (Docket # 19, # 23, # 24). The defendants filed their reply on October 30, 2015 (Docket # 26).

Thus, the defendants' motion to dismiss is fully briefed and the Court will now decide it.

2. ANALYSIS OF DEFENDANTS' MOTION TO DISMISS PURSUANT TO RULE 12(b)(1)

The Court begins its analysis by discussing the defendants' motion to dismiss insofar as that motion seeks dismissal based upon Rule 12(b)(1).

2.1 Rule 12(b)(1) Standard

As already noted, the defendants have moved to dismiss this action pursuant to Rule 12(b)(1), arguing that the Court lacks subject matter jurisdiction. (Docket # 12). In reviewing a motion to dismiss “[u]nder Rule 12(b)(1), ‘the district court must accept as true all material allegations of the complaint, drawing all reasonable inferences therefrom in the plaintiff's favor,” Remijas v. Neiman Marcus Group, LLC, 794 F.3d 688, 691 (7th Cir.2015) (quoting Reid L. v. Ill. State Bd. of Educ., 358 F.3d 511, 515 (7th Cir.2004) ), unless there is a factual dispute that impacts the analysis, see Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir.2003)...