Eckert v. Lvnv Funding LLC
| Decision Date | 28 July 2009 |
| Docket Number | Case No. 4:08CV01802 ERW. |
| Parties | Maureen E. ECKERT, Plaintiff, v. LVNV FUNDING LLC, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Mitchell B. Stoddard, Consumer Law Advocates, St. Louis, MO, for Plaintiff.
Mayer S. Klein, Michael J. Payne, Frankel and Rubin, Clayton, MO, for Defendant.
This matter comes before the Court on Defendant's Motion to Dismiss Plaintiff's Claim for Failure to State a Claim Upon Which Relief Can Be Granted [doc. # 5].
In November 2005, Maureen Eckert's ("Plaintiff") credit card statement indicated that a credit of $1,297.03 had been applied to her Bank of America credit card account, reducing the balance on the account to $4,584.70. This debt was then purchased by LVNV Funding LLC ("Defendant") from Bank of America in December 2005. Defendant asserts that Plaintiff did not pay the amount due on this account, and on August 16, 2007, Defendant filed a petition against Plaintiff in the Circuit Court of St. Louis County, Missouri to recover the unpaid credit card debt. The petition claimed that the amount due on the credit card account was $5,881.73, with nine percent interest since November 22, 2005. Attached to Defendant's Petition was a sworn affidavit in which one of Defendant's representatives affirmed the amount due.
Plaintiff then brought the pending action against Defendant, asserting that by filing the petition to collect the full amount of $5,881.73, as well as interest accrued since November 22, 2005, Defendant1 violated the Fair Debt Collection Practices Act ("FDCPA"). Plaintiff alleges violations of 15 U.S.C. § 1692e for misrepresentations of the amount, the character, and the legal status of the debt, and she also seeks to recover under 15 U.S.C. § 1692f based on the use of unfair means in attempting to collect a debt. Defendant asks the Court to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, the Court must take all facts alleged in the complain to be true and must construe the pleading in the light most favor to the Plaintiff. Chambers v. St. Louis County, 247 Fed.Appx. 846, 848 (8th Cir.2007) (citing Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995)).
While a plaintiff does not have to "`set out in detail the facts upon which he bases his claim,' [Fed.R.Civ.P. 8(a)(2)] still requires a `showing,' rather than a blanket assertion, of entitlement to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (emphasis original) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of `entitlement to relief.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp., 550 U.S. at 557, 127 S.Ct. 1965).
The factual allegations contained in the pleadings must "raise a right to relief above the speculative level." Bell Atlantic Corp., 550 U.S. at 555, 127 S.Ct. 1955. The plaintiff must demonstrate their entitlement to relief and "a formulaic recitation of the elements of a cause of action will not do." Ashcroft, 129 S.Ct. at 1949. Therefore, "the court is free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusion cast in the form of factual allegations." Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 870 (8th Cir. 2002).
Defendant argues that Plaintiff's entire cause of action is barred by the common law doctrines of witness immunity and litigation immunity, and Defendant also asserts that each individual count fails to state a claim on which relief may be granted. The Court will first address the application of witness immunity and litigation immunity, and will then consider Defendant's arguments concerning the individual claims.
Witness immunity is the common law doctrine that protects witnesses from civil liability for the testimony that they give in a judicial proceeding. Briscoe v. LaHue, 460 U.S. 325, 329, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Witness immunity is a common law doctrine, and it may be abrogated by Congress. See Smith v. Wade, 461 U.S. 30, 67 n. 6, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Courts assume that members of Congress are "familiar with common-law principles ... and that they likely intended these common-law principles to obtain, absent specific provisions to the contrary." Briscoe, 460 U.S. at 330, 103 S.Ct. 1108 (quoting City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)).
This doctrine is based on the belief that "public policy ... requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." Briscoe, 460 U.S. at 333, 103 S.Ct. 1108 (quoting Calkins v. Sumner, 13 Wis. 193, 197 (1860)). Because a witness may either be reluctant to testify, or may shade or distort the testimony for fear of subsequent liability for statements, the doctrine of witness immunity is meant to protect testimony of witnesses from liability. Id. Here, Defendant argues that witness immunity bars claims brought based on the alleged falsity of statements made in Defendant's state court petition and the attached affidavit because Congress did not intend to abrogate the doctrine of witness immunity when it enacted the FDCPA. Defendant claims that the doctrine of witness immunity bars Plaintiff's claim, even if the facts stated in the affidavit were false.
Courts that have considered this issue are split over whether Congress intended to abrogate witness immunity.2 See Todd v. Weltman, Weinberg & Reis, Co., L.P.A., 348 F.Supp.2d 903, 914 (S.D.Ohio 2004) (recognizing disagreement). Common law doctrines should be applied "absent specific provisions to the contrary." Briscoe, 460 U.S. at 330, 103 S.Ct. 1108 (quoting City of Newport, 453 U.S. at 258, 101 S.Ct. 2748). The courts who have found no abrogation rely on this logic, and note that no provision of the FDCPA expressly abrogated witness immunity under the FDCPA. Etapa, 373 F.Supp.2d at 691; Beck, 2000 WL 34490402, at *6. Additionally, courts analyzing the statutory history of the FDCPA have found "nothing in the FDCPA itself or the legislative history of the Act [that] remotely suggests such an abrogation." Todd, 434 F.3d at 439.
In contrast, courts who have found a congressional intent to abrogate the doctrine have noted that "Congress has legislated with an expectation that [a common law] principle will apply except when a statutory purpose to the contrary is evident." Blevins, 395 F.Supp.2d at 666 (emphasis added) (quoting Astoria Fed. Savings & Loan Assn. v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991)). The FDCPA was enacted with the statutory purpose of regulating the "process" of debt collection. Id. These courts have considered "the broad language of the statute, and the absence of any firmly rooted absolute immunity for a private plaintiff initiating a civil lawsuit with an allegedly false affidavit," and conclude that the application of witness immunity would be adverse to the stated statutory purpose. Id. Moreover, "where only a debt collector can be held liable under the FDCPA, and the `witness' at issue is that debt collector, who can control his or her own liability by not making knowingly false statements in attempting to collect a debt," the doctrine of witness immunity is inconsistent with the purpose of the statute to hold debt collectors liable for conduct related to the process of debt collection. Delawder, 443 F.Supp.2d at 950.
Here, the Court is persuaded that application of witness immunity in the present case would be contrary to the statutory purpose of the FDCPA. If witness immunity could be applied to bar suit against the Defendant under such circumstances, the FDCPA would be completely ineffective in regulating the conduct of debt collectors when the process of debt collection involves the filing of pleadings. See Delawder, 443 F.Supp.2d at 948-50. "[Witness] immunity does not extend to `complaining witnesses'—those who help instigate the judicial process by swearing to tell the truth." Gionis v. Javitch, Block, Rathbone, LLP, 238 Fed.Appx. 24, 27 (6th Cir.2007).3 As such, this Court finds that Defendant is not protected from liability in this case by the doctrine of witness immunity, and Defendant's motion to dismiss based on the doctrine of witness immunity will be denied.4
Litigation immunity is the common law doctrine that protects parties, witnesses, lawyers, and judges as participants in the judicial process from liability for acts and conduct related to a proceeding. Briscoe, 460 U.S. at 334-35, 103 S.Ct. 1108. This broad immunity is meant to ensure that "judges, advocates and witnesses can perform their respective functions without harassment or intimidation." Id. at 335, 103 S.Ct. 1108 (quoting Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)). Here, Defendant argues that litigation immunity protects it from liability for statements made in the affidavit attached to the state court petition.
Litigation immunity does not protect a defendant from liability under the FDCPA for statements made in connection to a judicial proceeding. Sayyed v. Wolpoff & Abramson, 485 F.3d 226, 236 (4th Cir.2007). The Fourth Circuit stated that "[i]t is clear that Congress meant not to incorporate common law immunities in this area, such as they may be, but to overwrite them, defining...
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