Clendening v. Stillman, P.C.

ASHLEE CLENDENING, Plaintiff, v. STILLMAN, P.C., Defendant.

Case No. 20-11820

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

April 8, 2021

Stephanie Dawkins Davis United States District Judge

OPINION AND ORDER GRANTING MOTION TO DISMISS (ECF No. 12) AND TERMINATING PENDING MOTION As MOOT (ECF No. 11)

I. PROCEDURAL HISTORY

Plaintiff, Ashlee Clendening, filed this lawsuit against the law firm of Stillman, PC on July 6, 2020. (ECF No. 1). Clendening asserts violations of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA) arising from defendant's in-person service of process on her while the Michigan Governor's declaration of emergency and stay-at-home orders were in place due to the COVID-19 pandemic. Defendant has filed a motion to dismiss the complaint, arguing that Clendening has failed to sufficiently allege Article III standing to assert her claims under the FDCPA. (ECF No. 12). That motion is fully briefed, and the Court held a video hearing on the motion on March 17, 2021, pursuant to notice. (ECF Nos. 16, 19, 22, 30).

For the reasons set forth below, the court concludes that Clendening has not sufficiently alleged Article III standing to assert her claims under the FDCPA and accordingly, her complaint is DISMISSED.

II. FACTUAL BACKGROUND

On May 4, 2020, Ashlee Clendening found a note taped to her door telling her that an "emergency call was needed to the phone number listed on the note." (ECF No. 1, ¶ 27). Clendening called that number and was told she needed to be served with "court papers" and the person serving the papers would be there within 15 minutes. Id. at ¶ 26. More than 15 minutes later, after Clendening had become distracted with other things, a man arrived at her door and served her in person with a lawsuit filed by Stillman Law Office (Stillman) to collect a debt owed to Stillman's client. Clendening is a "healthcare worker and her family all have pre-existing conditions." The process server was not wearing a mask or gloves when he served the Summons and Complaint in the Collection Case. Id. at ¶ 31. This stunned Clendening and made her anxious and worried about potential exposure to COVID-19. Id. at ¶ 32-33. She consulted an attorney and nine days after being served, she underwent credit counseling as a precursor to her May 29, 2020 chapter 7 bankruptcy filing. (ECF No. 12-1, Ex. A).

The summons served on Clendening was the SCAO¹ form that notifies a defendant that she has 21 days after personal service to answer the complaint. (ECF 1-1, PageID.29). The SCAO form did not disclose that, on March 23, 2020, the Michigan Supreme Court suspended the need to a respond to a complaint during the period of the COVID-19 state of emergency. (ECF No. 1, ¶¶ 17, 88; Mich. Sup. Ct. Adm. Order 2020-03). Clendening contends that Stillman's actions violated the FDCPA and Michigan's Regulation of Collection Practices Act (RCPA) because serving process during the period in which the State of Michigan was under various orders restricting public gatherings was "harassment" and because the representation in the SCAO summons that she had 21 days to answer the complaint in the Collection Case was false. She also alleges that the use of the SCAO form violated the rights of a class of people because the representation in the SCAO summons that the plaintiff had 21 days to answer the complaint in the Collection Case was false or misleading, in violation of the FDCPA.

III. DISCUSSION

A. Standard of Review

A challenge to a party's Article III standing invokes a federal court's subject matter jurisdiction and is properly raised by a motion made under Federal Rule ofCivil Procedure 12(b)(1). In re Blasingame, 585 B.R. 850, 858 (B.A.P. 6th Cir. 2018), aff'd, 920 F.3d 384 (6th Cir. 2019) (citing Allstate Ins. Co. v. Global Med. Billing, Inc., 520 Fed. Appx. 409, 410-11 (6th Cir. 2013) (unpublished) (citations omitted); Kepley v. Lanz, 715 F.3d 969, 972 (6th Cir. 2013)). As explained in McQueary v. Colvin, 2017 WL 63034, at *3 (W.D. Ky. Jan. 5, 2017), a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction "can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack)." Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014) (citing United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). "A facial attack is a challenge to the sufficiency of the pleading itself. On such a motion, the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party." McQueary, at *3 (quoting Ritchie, 15 F.3d at 598); see also Cartwright, 751 F.3d at 759 ("A facial attack goes to the question of whether the plaintiff has alleged a basis for subject matter jurisdiction, and the Court takes the allegations of the complaint as true for purposes of the Rule 12(b)(1) analysis"). "A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction." McQueary, at *3 (quoting Ritchie, 15 F.3d at 598). And, where a plaintiff relies on evidence outside the complaint to support a standing claim, the challenge is factual, and the Courtinstead must assess the factual basis for jurisdiction by weighing the evidence tendered. Forgy v. Stumbo, 378 F. Supp. 2d 774, 776 (E.D. Ky. 2005) (citing DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004)); see also Kardules v. City of Columbus, 95 F.3d 1335, 1347 n. 4 (6th Cir. 1996) (The Sixth Circuit has recognized a district court's authority to consider extrinsic evidence when addressing the issue of standing.). Here, defendant makes a facial attack, asserting that Clendening's complaint fails to identify a sufficiently concrete harm, as required by Article III, except as to the assertion that Clendening fails to show her injury is akin to battery, where defendant relies on evidence outside the complaint. (ECF No. 19, PageID.245, n. 1).

B. Standing

Article III of the Constitution empowers the federal judiciary to decide "Cases" and "Controversies," U.S. CONST. art. III, § 2, "a limitation long understood to confine the federal courts to concrete disputes presented in a form historically recognized as appropriate for judicial resolution in the Anglo-American legal tradition." Larkin v. Finance System of Green Bay, Inc., 982 F.3d 1060 (7th Cir. 2020) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006). To invoke the jurisdiction of a federal court, a plaintiff must demonstrate that she has standing to sue, a requirement "rooted in the traditional understanding of a case or controversy." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).Spokeo, 136 S. Ct. at 1547. To establish standing, a plaintiff has the burden to establish that she has "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial ruling." Id. At the pleading stage, the standing inquiry asks whether the complaint "clearly ... allege[s] facts demonstrating each element" of the standing inquiry. Id. (quotation marks omitted).

As discussed below, the primary dispute before the court is whether Clendening suffered an injury-in-fact. "To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Id. at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The key question here is whether Clendening has alleged an injury that is "both concrete and particularized." Id.

As the Larkin court explains, particularization is generally easy to understand. An injury is particularized if it "affect[s] the plaintiff in a personal and individual way." Id. (quoting Lujan, 504 U.S. at 560 n.1). The claimed injury cannot be a generalized grievance shared by all members of the public. DaimlerChrysler Corp., 547 U.S. at 342-44. Rather, the plaintiff himself must have personally suffered an actual injury or an imminent threat of injury. Id.; see also Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1619 (2020) (affirming a dismissalfor lack of standing because the plaintiffs themselves had no stake in the lawsuit). On the other hand, concreteness is more challenging. "A concrete injury must be de facto; that is, it must actually exist." Larkin, 982 F.3d at 1064 (quoting Spokeo, 136 S. Ct. at 1548 (quotation marks omitted)). That is, a concrete injury is one that is "real, ... not abstract." Id. (quotation marks omitted). But "concrete" does not necessarily mean "tangible." Both tangible and intangible harms can satisfy the concreteness requirement, although tangible injuries—e.g., physical harms and monetary losses—are "easier to recognize." Id. at 1549.

Larkin further explains that intangible harms often raise more difficult injury-in-fact questions. In the context of suits seeking relief for statutory violations, "both history and the judgment of Congress play important roles" in the analysis. Id. (citation omitted). Congress may identify and elevate historically non-cognizable intangible harms to the status of cognizable injuries, and when it does so, "its judgment is ... instructive and important." Id. But congressional judgment is not conclusive. Instead, as the Supreme Court emphasized in Spokeo, a congressional decision to create a cause of action "does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." Id. Because Congress cannot override the case-or-controversy requirement, "Article III standing requires a concrete injury even in the context ofa statutory violation." Id. With these principles in mind, ...