Banks v. Kottemann Law Firm

• Decision Date: 30 March 2021
• Docket Number: CIVIL ACTION NO. NO. 19-375-JWD-EWD,CIVIL ACTION NO. 20-340-JWD-EWD
• Parties: ERICKA BANKS, individually and on behalf of all others similarly situated v. KOTTEMANN LAW FIRM CONSOLIDATED WITH SHELITA KING, individually and on behalf of all others similarly situated v. KOTTEMANN LAW FIRM, ET AL.
• Court: U.S. District Court — Middle District of Louisiana

ERICKA BANKS, individually and on behalf ofall others similarly situated v. KOTTEMANN LAW FIRM

CONSOLIDATED WITH

SHELITA KING, individually and on behalf ofall others similarly situated v. KOTTEMANN LAW FIRM, ET AL.

CIVIL ACTION NO. NO. 19-375-JWD-EWD

CIVIL ACTION NO. 20-340-JWD-EWD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

March 30, 2021

RULING AND ORDER

This matter comes before the Court on the Motion to Dismiss (Doc. 8) filed by Defendants Kottemann Law Firm and Stanley Kottemann, Jr. (collectively "Defendants"). Plaintiff Shelita King ("Plaintiff") opposes the motion. (Doc. 10.) Defendants filed a reply. (Doc. 15.) Both parties filed supplemental notices of authority. (See Banks, No. 19-375, Docs. 45, 46.) Oral argument is not necessary. The Court has carefully considered the law, facts in the record, and arguments and submissions of the parties and is prepared to rule. For the following reasons, Defendants' motion is granted in part and denied in part.

I. Background

A. Relevant Facts

This is a putative class action brought pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. Defendants are: (1) Kottemann Law Firm, a Louisiana company that uses mail, telephone, or facsimile in a business, the principal purpose of which is the collection of debts; and (2) Stanley Kottemann, Jr., an attorney whom it employs. (Compl. ¶¶ 9-10, Doc. 1.) Plaintiff is a Louisiana resident (id. ¶ 7) who allegedly incurred an obligation to Baton Rouge Cardiology arising out of medical services she received. (Id. ¶¶ 14-16; Doc. 10 at 8.) Thereafter, Baton Rouge Cardiology "or a purchaser, assignee, or subsequent creditor" contracted with Defendants to collect on the alleged debt owed. (Compl. ¶ 18, Doc. 1.) In connection with this debt, on June 5, 2019, Defendants sent Plaintiff a collection letter which is the subject of the present case. (Id. ¶ 20.) The letter provides as follows:

Re: Baton Rouge Cardiology

Account Number: XXX5390

Total Amount Owed: $871.00

Dear Shelita King:

Our Firm has been retained to assist in the collection of the above referenced debt owed by you. This debt is delinquent and there is no indications that you have made payment arrangements to resolve this matter or that you dispute the validity of the debt. Payment in full should be made to:

Kottemann Law Firm

PO Box 640787

Kenner, LA 70064-0787

Formal demand is hereby made upon you for immediate payment of the total indebtedness. Baton Rouge Cardiology is the original creditor for this debt. Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt, or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from reciving this notice, this office will obtain verification of the debt or obtain a copy of a judgment (if applicable) and mail you a copy of such judgment or verification. If you request from this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor. If the amount owed is not paid with in [sic] 30 days then the amount due will be owed plus reasonable attorney fees of 25% of principal and interest.

(Doc. 1-2 at 1, the "Letter".)¹

Plaintiff claims that the Letter violates various provisions of the FDCPA, which Congress enacted "in response to the 'abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors[]' " (Compl. ¶ 1, Doc. 1 (quoting 15 U.S.C. § 1692(a))) to "eliminate abusive debt collection practices [and] to 'insure that those debt collectors who refrain from using abusive debt collection practices are not completely disadvantaged.' " (Id. ¶ 2 (quoting 15 U.S.C. § 1692(e)).) Plaintiff maintains that Defendants' actions, including the contents of the Letter, "are part of a pattern and practice used to collect consumer debts." (Id. ¶ 38.)

B. Class Claims

Plaintiff seeks to represent the following classes of individuals:

Class A consists of (a) all individuals nationwide (b) to whom Defendants (c) sent an initial collection letter attempting to collect a consumer debt (d) containing language following the validation notice: "If the amount owed is not paid with in [sic] 30 days then the amount due will be owed plus reasonable attorney fees of 25% of principal and interest" (e) which letter was sent on or after a date one year prior to the filing of this action and on or before a date 21 days after the filing of this action.

Class B consists of (a) all individuals nationwide (b) to whom Defendants (c) sent an initial collection letter attempting to collect a consumer debt owed to Baton Rouge Cardiology (d) containing language following the validation notice: "If the amount owed is not paid with in [sic] 30 days then the amount due will be owed plus reasonable attorney fees of 25% of principal and interest" (e) which letter was sent on or after a date one year prior to the filing of this action and on or before a date 21 days after the filing of this action.

Class C consists of (a) all individuals nationwide (b) to whom Defendants (c) sent an initial collection letter attempting to collect a consumer debt owed (d) that failed to state who the current creditor to whom the debt was allegedly owed is (e) which letter was sent on or after a date one year prior to the filing of this action and on or before a date 21 days after the filing of this action.

(Compl. ¶ 39, Doc. 1.) The Complaint also sets out facts in support of numerosity, commonality, typicality, and adequacy for the plaintiff class. (Id. ¶¶ 40-47.)

C. Claims and Prayer for Relief

In her complaint, Plaintiff alleges that Defendants violated three provisions of the FDPCA: first, 15 U.S.C. § 1692(e) by falsely representing the amount of the debt, threatening to take action that cannot legally be taken or that is not intended to be taken, and using false, deceptive and misleading representations in connection with the collection of a debt, (id. ¶¶ 48-52); second, 15 U.S.C. § 1692(f) by attempting to collect an amount not expressly authorized by the agreement creating the debt or permitted by law, (id. ¶¶ 53-57); and finally, 15 U.S.C. § 1692(g) by failing to clearly identify the current creditor to whom the debt was owed and overshadowing the validation notice (id. ¶¶ 58-61).

Plaintiff seeks, inter alia, declaratory and injunctive relief, actual and statutory damages, attorney's fees, and any other relief this Court "may deem just and proper." (Id. ¶ 6; see also Doc. 1 at 11.)

D. Procedural History

On June 5, 2020, Plaintiff filed her class action Complaint against Defendants. (Doc. 1.) On August 28, 2020, Defendants filed their Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 8.) On that same day, Defendants also filed a Motion to Transfer and Consolidate with the Banks case, No. 19-375. (Doc. 9.) Subsequently, on November 30, 2020, Defendants' motion was granted, and this case was transferred to this Court and consolidated with the prior filed Banks. (Doc. 19.) As Judge Jackson explained in his Ruling and Order on the Motion to Transfer and Consolidate, "both actions [were] filed on behalf of Louisiana consumers under the [FDCPA]. Both actions involve the same attorneys, the same Defendants,functionally the same claims, a request for class certification, and call for the same relief."² (Doc. 19 at 1-2.)

II. Relevant Standards

A. Rule 12(b)(1) Standard

Concerning the standard for Rule 12(b)(1) motions, the Fifth Circuit has explained:

Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case. Fed. R. Civ. P. 12(b)(1). Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).

The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. McDaniel v. United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995). Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).

When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam). . . .

In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of fact which may be in dispute. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

B. Rule 12(b)(6) Standard

"Federal pleading rules call for a 'short and plain statement of the claim showing that the pleader is entitled to relief,' Fed. R. Civ. P. 8(a)(2); they do not countenance dismissal of acomplaint for imperfect statement of the legal theory supporting the claim asserted." Johnson v. City of Shelby, Miss., 574 U.S. 10, 11, 135 S. Ct. 346, 346-47 (2014) (citation omitted).

Interpreting Rule 8(a) of the Federal Rules of Civil Procedure, the Fifth Circuit has explained:

The complaint (1) on its face (2) must contain enough factual matter (taken as true) (3) to raise a reasonable hope or

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