Dubeck v. Marion Law Offices

SEAN DUBECK, Plaintiff, v. MARION LAW OFFICES, and WILLIAM H. MARION, Defendants.

No. 8:20-CV-149

United States District Court, D. Nebraska

September 24, 2021

MEMORANDUM AND ORDER

Brian C. Buescher, United States District Judge

I. INTRODUCTION

Sean Dubeck sued Marion Law Offices (“Marion Law”) and William H. Marion for violating the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) and Nebraska's Consumer Protection Act, Neb. Rev. Stat. § 59-1601, et seq. (“CPA”). Before the Court are Defendants' Motion for Summary Judgment, Filing 26, and Plaintiff's Motion for Partial Summary Judgment as to liability, Filing 27. For the reasons stated herein, the Court grants Defendants' motion and denies Plaintiff's motion.

II. BACKGROUND

Plaintiff Dubeck, a resident of Omaha, Nebraska, hired Bill-Mar Lawn & Landscape (“Bill-Mar) to mow his yard in 2019. Filing 1 at 1, 3; Filing 28-4 at 12. Defendant Marion, a solo practitioner at defendant Marion Law for eight years, is the owner of Bill-Mar. Filing 28-4 at 1113, 58-59; Filing 26-1 at 1. Dubeck claims that, despite informing Bill-Mar that he no longer required its services, Bill-Mar continued to mow his lawn. Filing 1 at 3. On December 12, 2019, Bill-Mar sent Dubeck a bill for lawn services. Filing 1-1 at 1. The bill stated that Dubeck owed $200 for the services rendered plus $700 in past-due payments. Filing 1-1 at 1. A handwritten message on the bottom of the bill read, “Please call as all past due are to go to collection on 12/27/19.” Filing 1-1 at 1.

Dubeck later received a letter, dated December 26, 2019, on Marion Law letterhead. Filing 1-2 at 1. The letter included Marion's typed name but not his signature. Filing 1-2 at 1. It stated, “Your account has been assigned to this office to assist BILL-MAR Lawn & Landscaping in collecting an outstanding balance of $900.00. Please contact this office immediately upon receipt or a civil complaint will be filed on your persons seeking costs, interest, and attorney fees.” Filing 1-2 at 1. At the bottom of the letter was a message reading, “We are a debt collection law firm and this is an attempt to collect a debt.” Filing 1-2 at 1.

On April 20, 2020, Dubeck sued Marion and Marion Law for violations of the FDCPA and Nebraska's CPA. Filing 1-1. Following discovery, on June 16, 2021, Marion and Marion Law filed their motion for summary judgment, Filing 26, while Dubeck cross-moved for partial summary judgment on the issue of liability. Filing 27.

III. ANALYSIS

A. Standard of Review

“Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “[S]ummary judgment is not disfavored and is designed for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (internal quotation marks omitted) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing “an absence of a genuine issue of material fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (citing Celotex, 477 U.S. at 323). Instead, “the burden on the moving party may be discharged by ‘showing' . . . that there is an absence of evidence to support the nonmoving party's case.” St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).

In response to the moving party's showing, the nonmoving party's burden is to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). “[T]here must be more than ‘the mere existence of some alleged factual dispute'” between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).

B. Liability Under the Federal Debt Collection Practices Act

Dubeck argues that Marion and Marion Law are debt collectors and that the letter he received from Marion Law violated the FDCPA. Filing 1 at 1-6. Specifically, he argues that Marion and Marion Law “used false representation [sic] or deceptive means to collect or attempt to collect [a] debt, ” failed to provide a proper Debt Validation, “contradicted and overshadowed the validation notice, ” and made “a threat to take legal action that was not intended to be taken.” Filing 1 at 5-6. In response, Marion and Marion Law assert they cannot be held liable under the FDCPA because they are not “debt collectors, ” and that, even if they are debt collectors, nothing they did violated the FDCPA. Filing 26-3 at 3-5; Filing 29 at 3-6. The Court concludes that because Marion and Marion Law do not regularly collect debts owed to another, they are not debt collectors and the FDCPA does not apply. Thus, as a matter of law, Marion and Marion Law are entitled to summary judgment and Dubeck's cross-motion for summary judgment on the issue of liability must be denied.

To maintain an action under the FDCPA, a plaintiff must show that (1) the plaintiff is a consumer, (2) the defendant sought payment of a debt, (3) the defendant is a “debt collector” as defined by the statute, and (4) a violation by the defendant of a provision of the FDCPA. Dunham v. Portfolio Recovery Assocs., LLC, 663 F.3d 997, 1001 (8th Cir. 2011). The FDCPA defines “debt collector” as “any person . . . who regularly collects or attempts to collect . . . debts owed or due or asserted to be owed or due another.”^[1] 15 U.S.C. § 1692a(6). The definition includes several exceptions, including a creditor's employees, a person serving legal process, and certain nonprofit organizations. Id. § 1692a(6)(A)-(F).

The Eighth Circuit has not yet ruled on what constitutes regularly collecting debts under the FDCPA, although it is clear that attorneys can fall within the statute if they “‘regularly' engage in consumer-debt-collection activity.” Heintz v. Jenkins, 514 U.S. 291, 299 (1995). Thus, this Court must determine for itself the statute's meaning, “affording] the law's terms their ordinary meaning at the time Congress adopted them.” Niz-Chavez v. Garland, 141 S.Ct. 1474, 1480 (2021).

In determining if a law firm falls under the FDCPA, other courts in this circuit have considered what percentage of a law firm's overall work includes debt collection, how much its total revenue constitutes debt collection, and the time and resources it expends on collecting debts. See, e.g., Wells v. LF Noll, Inc., No. 18-CV-2079-CJW-KEM, 2019 WL 5596409, at *8 (N.D. Iowa Oct. 30, 2019) (finding that entity was a debt collector when about six percent of its revenue derived from debt collection); Lynch v. Custom Welding & Repair, Inc., 142 F.Supp.3d 814, 822 (N.D. Iowa 2015) (finding that entity was not a debt collector when debt collection was less than one percent of its business); Alexander v. Omega Mgmt., Inc., 67 F.Supp.2d 1052, 1055 (D. Minn. 1999) (finding that entity was not a debt collector when less than three percent of its total operations were devoted to collecting debts).

Other Circuits have considered similar factors in assessing whether an entity is a “debt collector” for purposes of the FDCPA. The Sixth Circuit has stated, “The term ‘regularly' means ‘[a]t fixed and certain intervals, regular in point of time. In accordance with some consistent or periodical rule of practice.'” Schroyer v. Frankel, 197 F.3d 1170, 1174 (6th Cir. 1999) (quoting Regularly, Black's Law Dictionary 1286 (6th ed.1990)); see also Regularly, Oxford English Dictionary (2d ed. 1989), https://www.oed.com/oed2/00201386 (last visited Sept. 2, 2021) (defining “Regularly” as “without interruption of recurrence; constantly.”). Likewise, “regular” means “[u]sual, customary, normal or general” and is antonymous to “casual” or “occasional.” Id. (quoting Regular, Black's Law Dictionary 1285 (6th ed. 1990)). Accordingly, “[t]hese definitions suggest that an individual or entity must have more than an ‘occasional' involvement with debt collection activities to qualify as a ‘debt collector' under the FDCPA” Id.

The Second Circuit uses several similar factors to determine if a law firm or attorney is “regularly” engaging in debt collection activity. See Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 62-63 (2d Cir. 2004). Courts in that circuit look to:

(1) the absolute number of debt collection communications issued, and/or

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