Burdett v. Harrah's Kansas Casino Corp.

• Citation: 294 F.Supp.2d 1215
• Decision Date: 10 December 2003
• Docket Number: Nos. CIV.A. 02-2166-KHV, CIV.A. 03-2189-KHV.,s. CIV.A. 02-2166-KHV, CIV.A. 03-2189-KHV.
• Parties: Sheila BURDETT, Plaintiff, v. HARRAH'S KANSAS CASINO CORP., et al., Defendants.
• Court: U.S. District Court — District of Kansas

294 F.Supp.2d 1215

Sheila BURDETT, Plaintiff, v. HARRAH'S KANSAS CASINO CORP., et al., Defendants.

Nos. CIV.A. 02-2166-KHV, CIV.A. 03-2189-KHV.

United States District Court, D. Kansas.

December 10, 2003.

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Stephen B. Small, Kansas City, MO, for Plaintiff.

Glenn B. Brown, Kenneth E. Holm, Baty, Holm & Numrich, P.C., John G. Schultz, Franke, Schultz & Mullen, PC, Adam J. Prochaska, Darren K. Sharp, Laurence R. Tucker, Armstrong Teasdale LLP-Kansas City, Kansas City, MO, Michael A. Klutho, Bassford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, MN, David Israel, Session, Fishman & Nathan, LLP, New Orleans, LA, Richmond M. Enochs, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

VRATIL, District Judge.

This matter is before the Court on the Motion For Summary Judgment (Doc. # 88) in Case No. 02-2166 and the Motion To Dismiss Case Number 03-2189 (Doc. # 95) which NCO Financial Systems, Inc. filed on June 26 and September 12, 2003, respectively; Defendant Telecheck Services, Inc.'s Motion To Dismiss (Doc. # 97) filed September 12, 2003; Sheila Burdett's Preliminary Response To NCO's Motion For Summary Judgment & Motion To Lift The Stay So That Discovery Can Be Conducted In Complete Response Thereto (Doc. # 111) filed September 19, 2003; Defendant Telecheck Services, Inc.'s Motion To Dismiss Case No. 03-2189 (Doc. # 5) filed September 22, 2003; and Defendants Edward T. Burke & Associates, P.C., Edward T. Burke, Esq. And Creditors Interchange, Inc.'s Notice Of Motion And Motion For Summary Judgment (Doc. # 109) filed October 24, 2003. For reasons stated below, the Court overrules plaintiff's motion, sustains in part the motions of NCO Financial and Telecheck to dismiss Case No. 03-2189, and sustains the remaining three motions.

Procedural History

On April 12, 2002, plaintiff filed suit against nine defendants in Case No. 02-2166: Harrah's Kansas Casino Corporation, Harrah's Operating Company, Incorporated and Harrah's Entertainment, Incorporated (collectively "Harrah's"); Edward T. Burke & Associates, PC and Edward T. Burke, Esq. (collectively "Burke"); Creditors Interchange, Incorporated ("CI"); NCO Financial Systems, Incorporated ("NCO"); Telecheck Systems, Incorporated ("Telecheck"); and Prairie Band Potawatomi Nation (the "Tribe"). In that case, plaintiff alleged that defendants violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.; the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701 et seq.; and the Kansas Consumer Protection-Unconscionable Practice Act ("KCP-UPA"), K.S.A. § 50-626 et seq. Plaintiff also alleged that defendants committed intentional and negligent infliction of emotional distress, causing her husband, Clarence Burdett, to commit suicide.¹ In addition, under an unspecified Fair Credit Reporting Act, plaintiff sought to enjoin collection and set aside the gambling debts of Mr. Burdett, recover his gambling losses and delete from the Burdetts' credit records all adverse references to such debts.

On April 17, 2003, as special administrator for Mr. Burdett's estate, plaintiff filed a survivor action against the same nine defendants. Complaint (Doc. # 1) in Case No. 03-2189. That case also alleged that under an unspecified Fair Credit Reporting Act, plaintiff was entitled to enjoin collection and set aside the gambling debts of Mr. Burdett, recover his gambling losses and delete from the Burdetts' credit records all adverse references to such debts. It also repeated the allegations of the original complaint in Case No. 02-2166, i.e. that defendants violated the FDCPA, RICO, IGRA and KCP-UPA, and that defendants committed intentional and negligent infliction of emotional distress.² On June 5, 2003, the Court consolidated the two cases.

In Case No. 02-2166, on various dates between October 21 and December 19, 2002, all defendants except NCO filed motions to dismiss for lack of jurisdiction and/or failure to state a claim. On May 5, 2003, the Court sustained the motion by Harrah's and the Tribe, and sustained in part the motions by Burke, CI and Telecheck. Memorandum And Order (Doc. # 75). The Court dismissed plaintiff's claims against Harrah's and the Tribe for lack of jurisdiction. See id. Because the complaints in Case Nos. 02-2166 and 03-2189 are essentially the same, the Court directs plaintiff to show cause in writing on or before December 16, 2003 why her claims against Harrah's and the Tribe in Case No. 03-2189 should not be dismissed for the same reasons. As to the motions of Burke, CI and Telecheck, the Court sustained the motion to dismiss plaintiff's RICO claims and overruled without prejudice the motions to dismiss plaintiff's FDCPA claims. The Court also ordered plaintiff to file an amended complaint which specifically identified each FDCPA violation, the party who had committed the violation and the date of the violation, and to show cause in writing why the Court should not dismiss plaintiff's RICO claims against NCO. Id. at 23. In response, on May 16, 2003, plaintiff filed her First Amended Complaint (Doc. # 76) and Motion To Amend RICO Claim (Doc. # 77). Plaintiff's first amended complaint did not include claims under RICO, IGRA or the KCP-UPA. It alleged only three claims: (1) that Burke, CI, Telecheck and NCO violated the FDCPA; (2) that Burke, CI, Telecheck and NCO committed intentional and negligent infliction of emotional distress; and (3) that under some unspecified Fair Credit Reporting Act, plaintiff was entitled to recover Mr. Burdett's gambling losses from Burke, CI, Telecheck and NCO, and defendants were required to set aside Mr. Burdett's gambling debt and delete from the Burdetts' credit records all adverse references to such debt.³ First Amended Complaint (Doc. # 76) filed May 16, 2003.

On May 27, 2003, Telecheck filed a motion to dismiss plaintiff's amended complaint in Case No. 02-2166. Defendant Telecheck Services, Inc.'s Motion To Dismiss (Doc. # 79). On June 4, 2003, Burke and CI renewed their motion to dismiss in that case. Defendants Creditors Interchange, Inc., Edward T. Burke & Associates, P.C. And Edward T. Burke, Esq.'s Notice Of Renewed Motion To Dismiss (Doc. # 82). On June 12, 2003, plaintiff sought an extension of time until June 20, 2003, to reply to defendants' motions. Motion For Extension Of Time Within Which To Respond To Outstanding Defense Motions (Doc. # 85). The Court overruled plaintiff's motion for extension of time, noting that one of plaintiff's responses was not even due until June 27, 2003. Order (Doc. # 87) filed June 18, 2003. On June 26, 2003, NCO filed a motion for summary judgment in Case No. 02-2166. Motion For Summary Judgment (Doc. # 88). Plaintiff's response was initially due on July 21, 2003.

On July 17, 2003, plaintiff filed a Notice Of Injury To Counsel (Doc. # 90) which asked the Court to stay proceedings for 30 days because counsel had sustained a serious head injury in an automobile accident on July 9, 2003. On September 5, 2003, the Court sustained in part the motions to dismiss by Burke, CI and Telecheck and extended to September 19, 2003, plaintiff's deadline to respond to the NCO motion for summary judgment. As to the motions to dismiss, the Court held that plaintiff had no actionable claim (1) that Burke, CI and Telecheck violated the FDCPA by placing telephone calls to the Burdett residence or (2) that Burke and CI intentionally and negligently inflicted emotional distress on plaintiff. Consequently, the remaining claims in Case No. 02-2166 were (1) that Burke, CI, Telecheck and NCO violated the FDCPA by sending specified letters to the Burdett residence; (2) that NCO violated the FDCPA by placing numerous telephone calls to the Burdett residence; (3) that Telecheck and NCO intentionally and negligently inflicted emotional distress on plaintiff; and (4) that under some unspecified Fair Credit Reporting Act, Burke, CI, Telecheck and NCO were required to set aside Mr. Burdett's gambling debt, reimburse plaintiff for his gambling losses, and delete from the Burdetts' credit records all adverse references to such debt.

On September 19, 2003, plaintiff responded to the NCO motion for summary judgment and asked the Court to lift the stay of discovery which Magistrate Judge James P. O'Hara had entered on March 11, 2003. Sheila Burdett's Preliminary Response To NCO's Motion For Summary Judgment & Motion To Lift The Stay So That Discovery Can Be Conducted In Complete Response Thereto ("Plaintiff's Response") (Doc. # 99).

On September 12 and 22, 2003, NCO and Telecheck filed motions to dismiss Case No. 03-2189. Telecheck also filed a motion to dismiss Case No. 02-2166. On October 14, 2003, the Court granted plaintiff until October 16, 2003 to respond to these three motions. Order (Doc. # 106). Plaintiff did not respond, however, and the Court considers all three motions to be unopposed.

On October 24, 2003, Burke and CI filed Defendants Edward T. Burke & Associates, P.C., Edward T. Burke, Esq. And Creditors Interchange, Inc.'s Notice Of Motion And Motion For Summary Judgment (Doc. # 109) in Case No. 02-2166. Again, plaintiff did not respond.

I. Case No. 02-2166

A. Plaintiff's Motion To Lift The Stay Of Discovery

On March 11, 2003, Judge O'Hara stayed all proceedings in Case No. 02-2166 pending the resolution of defendants' then-pending motions to dismiss, i.e. Docs. # 21, 41 and 46. Order (Doc. # 73) at 2. Plaintiff asks the Court to lift that stay. The Court resolved the subject motions on May 5, 2003, however, see Memorandum And Order (Doc. # 75), and discovery has not been stayed since that time.⁴ The Court therefore overrules plaintiff's motion as moot.

B. NCO's Motion For Summary Judgment (Doc. # 88)

Although plaintiff timely responded to NCO's...