Garcia v. Jenkins/Babb LLP, 3:11-CV-3171-N-BH

• Decision Date: 31 July 2012
• Docket Number: No. 3:11-CV-3171-N-BH,3:11-CV-3171-N-BH
• Parties: ISRAEL GARCIA JR., et al., Plaintiffs, v. JENKINS/BABB LLP, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

ISRAEL GARCIA JR., et al., Plaintiffs,

v.JENKINS/BABB LLP, et al., Defendants.

No. 3:11-CV-3171-N-BH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

Dated: July 31, 2012

Referred to U.S. Magistrate Judge

FINDINGS, CONCLUSIONS AND RECOMMENDATION

Pursuant to Special Order No. 3-251, this action has been automatically referred for pretrial management, including the determination of non-dispositive motions and the issuance of findings, conclusions, and recommendations on dispositive motions. Before the Court are Defendant Jenkins/Babb LLP's Motion to Dismiss Pursuant to FRCP 12(b)(6) (doc. 14), Defendant Robert E. Jenkins' Motion to Dismiss Pursuant to FRCP 12(b)(6) (doc. 15), Defendant Jason Babb's Motion to Dismiss Pursuant to FRCP 12(b)(6) (doc. 16), all filed January 3, 2012, and Defendants Dustin T. Dudley, Dudley Law Firm, Chris Gilbert, Margaret Morrissey and Primary Financial Services' Motion to Dismiss Pursuant to FRCP 12(b)(6) (doc. 27), filed January 27, 2012. Based on the relevant filings and applicable law, the motion of Dudley, Dudley Law Firm, Gilbert, Morrissey and Primary should be DENIED, the Jenkins/Babb, Jenkins, and Babb motions to dismiss should be GRANTED, and the claims against all defendants should be DISMISSED.

I. BACKGROUND

On November 16, 2011, Israel Garcia, Jr. and Melissa R. Garcia (Plaintiffs) filed a pro se suit for violations of the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., against Jenkins/Babb, LLP (Jenkins/Babb), Robert E. Jenkins (Jenkins), Jason Babb (Babb) (collectively Jenkins/Babb Defendants); Dustin T. Dudley, Attorney at Law (Dudley Law Firm),Dustin T. Dudley (Dudley) (collectively Dudley Defendants)¹ ; and Primary Financial Services (Primary), Margaret Morrissey (Morrissey), Chris Gilbert (Gilbert), and Billi J. Geneser Gannon (Gannon).² (See doc. 3.) The complaint also alleged claims under the Texas Debt Collection Practices Act and the Texas Deceptive Trade Practices Act. (Id.) On December 8, 2011, before service on the defendants, Plaintiffs filed an amended complaint. (See doc. 6.)

Plaintiffs allege that on or about November 17, 2010, the Dudley Defendants sent them a collections letter on behalf of Primary for a debt allegedly owed to Wells Fargo Bank, N.A. (Wells Fargo). (doc. 6 at 4.) The letter requested that Plaintiffs make payment arrangements within twenty days or risk the filing of a civil suit to collect the outstanding balance of $17,018.68. (Id.) Plaintiffs responded by writing to Dudley at Primary³ to request validation of the debt and to demand that Dudley and Primary cease and desist in their collection efforts. (Id. at 5.) Plaintiffs received no response to their validation request. (Id.)

On or about January 18, 2011, Plaintiffs received a collection notice from Jenkins/Babb, signed by Jenkins, for a debt alleged to be owed to Wells Fargo in the amount of $15,954.32.⁴ (Id.) Jenkins copied Morrissey, a Primary employee, on the notice. (Id.) Plaintiffs responded by writing to Jenkins/Babb to request validation of the debt and to demand that they cease and desist in their collection efforts. (Id. at 6.) On or about February 15, 2011, Jenkins sent Plaintiffs a reply thatincluded documents relating to the alleged loan transaction. (Id. at 7.) Jenkins copied Gilbert, another Primary employee, on the response. (Id. at 8.)

Jenkins/Babb later filed a state court action to collect the debt. (Id.) Plaintiffs appeared and defended against the lawsuit, but the Texas court ultimately entered a judgment in favor of Wells Fargo. (Id. at 8, 15.) Plaintiffs allege that during the course of that litigation, Jenkins/Babb sent them a threatening letter in response to a "Notice of Intent to Sue" sent by Plaintiffs. (Id. at 13.) In addition, Jenkins allegedly made an oral threat to them on the date the state court judgment was entered. (Id. at 15.)

Plaintiffs contend that the defendants' actions while they were attempting to collect the debt violated § 1692d's proscription against harassment or abuse, § 1692e's proscription against false and misleading representations, and § 1692g's debt validation requirements. (See doc. 6.) The defendants moved to dismiss this case. (See docs.14, 15, 16 and 27.) After timely-filed responses and no replies, the motions are now ripe for consideration. (See docs. 35, 36 and 37.)

II. JURISDICTION

Primary, Morrissey, Gilbert and the Dudley Defendants move under Fed. R. Civ. P. 12(b)(6) to dismiss Plaintiffs' complaint under the Rooker-Feldman doctrine, arguing that the Court is being asked to review a state court judgment. (See doc. 27 at 8.)

The defendants' Rooker-Feldman⁵ argument presents a challenge to federal court subject matter jurisdiction that is properly considered under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291 (2005) (Rooker-Feldman implicates subject matter jurisdiction); Shipula v. Texas Dept. of Family Protective Serv., No. H-10-368, 2011 WL 1882521, *7 (S.D. Tex. May 17, 2011) (addressing Rooker-Feldman challenge to subject matter jurisdiction under Rule 12(b)(1)). A district court has "the responsibility to consider the question of subject matter jurisdiction sua sponte if it is not raised by the parties." Giannakos v. M/V Bravo Trader, 762 F2d 1295, 1297 (5th Cir. 1985). The jurisdictional issue is therefore considered as to all defendants.⁶

A. Rule 12(b)(1) Standard

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

"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." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)). Considering Rule 12(b)(1) motions first "prevents a court without jurisdiction from prematurely dismissing a case with prejudice." Id. When the court dismisses because the plaintiff lacks subject matter jurisdiction, that dismissal "is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have properjurisdiction." Id.

The district court may dismiss for lack of subject matter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). A motion to dismiss based on the complaint alone presents a "facial attack" that requires the court to merely decide whether the allegations in the complaint, which are presumed to be true, sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger, 644 F. 2d 521, 523 (5th Cir. 1998). "If sufficient, those allegations alone provide jurisdiction." Id. Facial attacks are usually made early in the proceedings. Id. When the evidence is presented with the motion to dismiss, then the attack is "factual" and "no presumptive truthfulness attaches to [the] allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Williamson, 645 F.2d at 413. A factual attack may occur at any stage of the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Regardless of the nature of attack, the party asserting jurisdiction constantly carries the burden of proof to establish that jurisdiction does exist. Ramming, 281 F.3d at 161.

Here, the defendants do not support their motion with evidence outside the complaint. Because they present a facial attack, determination of the issues does not require resolution of disputed factual matters outside the pleadings. Accordingly, all of Plaintiffs' factual allegations will be accepted as true. See Williamson, 645 F. 2d at 412.

B. Rooker-Feldman

"The Rooker-Feldman doctrine . . . is confined to . . . cases brought by state-court loserscomplaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus., 125 S. Ct. 1517, 1521-22 (2005). "[A] party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994). Under 28 U.S.C. § 1257, the United States Supreme Court has exclusive jurisdiction to review final judgments or decrees entered by the highest court of a state. "'[F]ederal district courts, as courts of original jurisdiction, lack appellate jurisdiction to review, modify, or nullify final orders of state courts.'" See Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000) (quoting Liedtke v. State Bar, 18 F.3d 315, 317 (5th Cir. 1994)). "This jurisdictional bar is not limited to actions in federal court that explicitly seek review of a state court decision, but also extends to those 'in which the constitutional claims presented . . . are inextricably intertwined with the state court's grant or denial of relief.'" Jordaan v. Hall, 275 F. Supp. 2d 778, 788 (N.D. Tex. 2003) (quoting Hale v. Harney, 786 F.2d 688, 691 (5th Cir. 1986)).

Where a plaintiff challenges a creditor's...