Scroggin v. Credit Bureau of Jonesboro, Inc.

973 F.Supp.2d 961

Brandon SCROGGIN, Plaintiff,

v.CREDIT BUREAU OF JONESBORO, INC., Defendant.

Case No. 3:12–cv–00128–SWW.

United States District Court,

E.D. Arkansas,

Jonesboro Division.

Sept. 20, 2013.

Victoria Leigh, Leigh Law LLC, Little Rock, AR, for Plaintiff.

Donn H. Mixon, Rebecca Worsham, Mixon Law Firm, Jonesboro, AR, for Defendant.

OPINION AND ORDER

SUSAN WEBBER WRIGHT, District Judge.

Brandon Scroggin brought this action against Credit Bureau of Jonesboro, Inc. (CBJ), alleging, inter alia, that CBJ violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and the Arkansas Fair Debt Collection Practices Act (AFDCPA), Ark.Code Ann. § 17–24–501 et seq., in its attempts to collect a debt for medical services allegedly owed by Scroggin. Following the conclusion of discovery, CBJ filed a motion to dismiss and for order of civility based on comments Scroggin posted on certain websites. CBJ argued that Scroggin's posts demonstrated that he was not using the law's procedures for legitimate purposes but rather for entertainment and harassment purposes. Although Scroggin's posts were troubling, the Court denied CBJ's motion to dismiss and for order of civility and stated that it would not prohibit Scroggin from commenting on this action given the existence of valid First Amendment concerns.¹ However, the Court informed Scroggin that with the exception of references to offers of settlement, Scroggin's posts and any future similar posts identified by CBJ would be admitted into evidence under Fed.R.Evid. 801(d)(2).

The matter proceeded to a jury trial in Jonesboro, Arkansas on the morning of July 15, 2013.² The following day, the jury delivered a verdict finding, inter alia, that CBJ twice violated the FDCPA and the AFDCPA when CBJ contacted Scroggin after it received a written cease and desist letter (C & D letter) from Scroggin and communicated to a third party that Scroggin owed a past-due debt.³ However, the jury did not award Scroggin any actual or statutory damages for CBJ's violations of the FDCPA and AFDCPA. The Court entered judgment in accordance with the jury verdict on July 18, 2013.⁴

Now before the Court is CBJ's motion for attorney's fees and costs pursuant to 15 U.S.C. § 1692k(a)(3) and Ark.Code Ann. § 17–24–512(a)(3)(B) or, alternatively, pursuant to the Court's inherent power on grounds that Scroggin brought this action in bad faith and for the purpose of harassment [doc. # 58]. Scroggin has responded in opposition to CBJ's motion. For the reasons that follow, the Court grants in part and denies in part CBJ's motion for attorney's fees and costs.⁵

I.

The FDCPA provides that the court may award to the defendant attorney's fees and costs “on a finding by the court that an action ... was brought in bad faith and for the purpose of harassment,” 15 U.S.C. § 1692k(a)(3) (emphasis added), while the AFDCPA provides that the court may award to the defendant attorney's fees and costs “if the court finds that an action ... was brought in bad faith or for the purpose of harassment.” Ark.Code Ann. § 17–24–512(a)(3)(B) (emphasis added). The Court has carefully considered the matter and finds that CBJ has affirmatively shown that Scroggin brought this action in bad faith and for the purpose of harassment.⁶

“[B]ad faith” is defined as “[d]ishonesty of belief or purpose.” Grand Canyon Skywalk Development, LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196, 1201 (9th Cir.2013) (quoting Black's Law Dictionary 159 (9th ed. 2009)). See also Arkansas Model Jury Instructions—Civil § 403 (2013) (“Bad faith” means “conduct that is dishonest, oppressive, or carried out with a state of mind characterized by hatred, ill will, or a spirit of revenge”); State Auto Property and Cas. Ins. Co. v. Swaim, 338 Ark. 49, 56, 991 S.W.2d 555, 559 (1999) (same). “Harassment” is defined as “ ‘words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.’ ” Adams v. Ford Motor Co., 653 F.3d 299, 307 (3rd Cir.2011) (quoting Black's Law Dictionary 784 (9th ed. 2009)). See also Webster's New Collegiate Dictionary 522 (ed. 1977) (to “harass” is to “exhaust,” “fatigue,” or “annoy persistently”).

Scroggin posted numerous comments regarding this action on various websites—including www. creditinfo center. com, www. debtorboards. com, and www. insidearm. com—under the posting handles “Coltfan1972” and “Todd Bean” and he sent emails regarding this action to CBJ's counsel. Along with his emails, the Court admitted into evidence over 6,500 of Sroggin's posts (with references to settlement redacted) pursuant to Fed.R.Evid. 801(d)(2) as statements by a party opponent. In addition, CBJ has attached to its motion for attorney's fees and costs certain of Scroggin's posts from the website www. insidearm. com that it states it learned about after trial. Scroggin's posts and emails as set forth below (with misspellings and grammatical errors left intact) fully support a finding that Scroggin brought this action in bad faith and for the purpose of harassment.⁷

Prior to filing this action, Scroggin stated that he wanted to maximize the retaliation to CBJ, do some damage, and hopefully goad or force CBJ to an actual trial:

However, since the last agency just folded, bent over and grabbed their ankles and said do with us as you please, I've decided to “step my game up” and let's try to send a little clearer message that these violations will not be tolerated. I mean how much dadgum emotional distress is a person supposed to endure.

So, since I will obviously whip the dog out of them and defeat is not even a remote option (if you don't believe me just ask me), it's just a matter of how bad and for how much at this point. I want to maximize the retaliation, do some damage and hopefully goad and/or force them to an actual trial.

As part of his scheme to damage CBJ, Scroggin “set up” CBJ into violating the FDCPA and AFDCPA by sending a purposely ambiguous C & D letter to CBJ that contained not only a refusal to pay but also Scroggin's explanation of why he didn't think he owed the debt in question. The C & D letter, dated March 26, 2012, provided:

In response to the letter you sent me that has dated February 27, 2012, and the account number from you of 2249932. I refuse to pay this debt because I don't think I owe that because I was only there [at St. Bernard's Medical Center] for an hour and then left after I started feeling better.

Scroggin's efforts to set up CBJ succeeded as his ambiguous C & D letter had the effect of prompting CBJ to make contact with him to explain why he owed the debt. In this respect, Scroggin, who described CBJ's voice mail that was listened to by friend Kirby Wilson as “an early Christmas present,” stated as follows:

[I]f you send them a refusal to pay letter it acts as a C & D. They are more likely to continue collection activity with a refusal than a C & D. At least that is what happened to me. Of course, I made my refusal look like it was written by a four year old so they would think they could just run over me.

* * *

I mean, I'm in federal [court] right now because “I refused to pay” when I wanted to C & D. It's pretty obvious that 99.9% are going to write a long drawn out letter for a C & D instead of I refuse to pay. Too bad for them I'm that .001% and they know they were set up and are screaming and hollering unclean hands. We all know where that argument is headed.⁸

Scroggin also advised another forum member on how to “solicit” an FDCPA violation:

If you want to solicit the FDCPA violation, send them the refusal to pay with a reason. They are more likely to write you back to show you how you are wrong and they are right, in other words argue with you. Who cares, what they say, it's an FDCPA violation and it's strict liability.

After filing this action and being notified that CBJ requested a deposition, Scroggin exclaimed, “[o]h happy day and living right I guess!!” and “[t]o say I'm looking forward to it is like saying a six year old is excited on Christmas morning.” He also stated he forced CBJ to abide by his schedule and discussed his intention to turn the deposition into a circus:

[I]'m forcing them into a Saturday deposition because their time is running out and now their available dates don't work with my busy schedule, but I have seven unreturned attempts trying to schedule a depo when I knew they were just bluffing.

So now they will do things on my schedule and I can promise you it will be a full blown three ring circus when that deposition get rolling.

Scroggin later stated that he chose a “Saturday morning because I was too busy during the week doing nothing.” ⁹ Scrogginalso again discussed his excitement and plans for turning the upcoming deposition into a circus:

I want to thank all for the well wishes and while I will turn this into a circus I still will make sure to concentrate on making sure I don't say anything that hurts my case.

* * *

I have not been this excited in at least 20 years. I'm actually getting ready to sit down with a debt collector attorney that their client has admitted to violating the FDCPA, and in which they have no legal argument that will hold water, and they are going to go toe to toe with Coltfan. All of the things I've been waiting to say and do, I'm getting ready to have the opportunity. I don't even care if I damage my emotional distress and I just have to rely on statutory and state damages plus costs. This is going to be a great day and you will all be there in spirit and I will know it.

I will not let you guys down. I can't ever see being in this position again and I really don't think I'll get a trial out of this so I'm going to make it one for the ages. I will cash every check I've been writing and I won't back down and I won't be intimidated. I'm usually the one giving the encouragement and telling others...