Daniel v. Asset Acceptance, LLC, No. 15-CV-10956, 2016 WL 8231941, at *1–8 (E.D. Mich. June 9, 2016)

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Daniel v. Asset Acceptance, LLC, No. 15-CV-10956, 2016 WL 8231941, at *1–8 (E.D. Mich. June 9, 2016)

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Daniel v. Asset Acceptance, LLC, No. 15-CV-10956, 2016 WL 8231941, at *1–8 (E.D. Mich. June 9, 2016), report and recommendation adopted sub nom. Daniel v. Midland Funding, LLC, No. 15-CV-10956, 2016 WL 4253886 (E.D. Mich. Aug. 12, 2016)

REPORT AND RECOMMENDATION
MONA K. MAJZOUB, UNITED STATES MAGISTRATE JUDGE

*1 This matter comes before the Court on three motions: (1) Defendants Asset Acceptance, LLC (“Asset”) and Midland Funding, LLC's (“Midland”) Motion for Judgment on the Pleadings (docket no. 26); (2) Plaintiff Rochelle Daniel's Motion for Leave to File Third Amended Complaint (docket no. 27); and (3) Defendants' Motion to Compel Discovery (docket no. 40). Response and reply briefs have been filed with regard to each motion. (Docket nos. 30-33, 35, 42, 43.) This matter has been referred to the undersigned for all pretrial purposes. (Docket no. 14.) The Court has reviewed the pleadings, dispenses with a hearing pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), and issues this Report and Recommendation.



I. RECOMMENDATION


For the reasons that follow, it is recommended that Defendants' Motion for Judgment on the Pleadings (docket no. 26) be GRANTED, Plaintiff's Motion for Leave to File Third Amended Complaint (docket no. 27) be DENIED, Defendants' Motion to Compel Discovery (docket no. 40) be DENIED as moot, and this matter be dismissed in its entirety.



II. REPORT


A. Background


Plaintiff commenced this action against Defendants on March 12, 2015, asserting violations of the Fair Debt Collection Practices Act (FDCPA) and the Fair Credit Reporting Act (FCRA) as well as state-law claims for invasion of privacy by intrusion upon seclusion and malicious prosecution. (Docket no. 1.) In her Complaint, Plaintiff sets forth similar, yet distinct, factual allegations and claims against Defendants Asset and Midland. (Id.)



1. Plaintiff's Claims against Defendant Asset


Plaintiff asserts that Defendant Asset sent Plaintiff a debt collection letter on December 21, 2012, regarding a Citibank credit card account in Plaintiff's name ending in 4927. Plaintiff claims that she faxed a letter to Asset to dispute the debt and request debt validation on January 2, 2013, but that Asset failed to respond. Plaintiff further asserts that on January 4, 2014, Fulton Friedman & Gullance, LLP (“FFG”), acting on behalf of Asset, sent Plaintiff a collection letter regarding the same Citibank credit card account. Plaintiff alleges that she then faxed and emailed a written request for debt validation to FFG on January 27, 2014, and she claims that neither FFG nor Asset obtained verification of the debt from the original creditor. Plaintiff also alleges that Asset obtained copies of her credit report on November 3, 2012, December 20, 2012, and January 31, 2013 without her consent. Plaintiff states that, on February 13, 2014, Asset filed a claim against her in state court regarding the aforementioned account, to which she filed a counterclaim alleging that Asset filed the lawsuit in violation of the FDCPA, 15 U.S.C. § 1692g(b). The state court dismissed Asset and Plaintiff's claims with prejudice on August 8, 2014.






While not explicitly stated, Plaintiff seemingly alleges that because Asset failed to validate the debt and continued its collection efforts in violation of the FDCPA, 15 U.S.C. § 1692g(b),1 Asset had no permissible purpose to pull Plaintiff's credit reports under the FCRA, 15 U.S.C. § 1681b(f).2 Plaintiff also claims that Asset invaded her privacy by intrusion upon seclusion when it pulled her credit reports without a permissible purpose because such an action is “highly objectionable to a reasonable man.” Plaintiff further contends that because Asset failed to properly verify the debt, Asset knew that the state court lacked jurisdiction to consider its claims and maliciously filed its lawsuit anyway.


2. Plaintiff's Claims against Defendant Midland


*2 According to Plaintiff, on May 8, 2013, Weltman, Weinberg & Reis Co., LPA (“WWR”), acting on behalf of Defendant Midland, sent Plaintiff a notice of collection regarding a Chase credit card account in Plaintiff's name ending in 1111. Plaintiff claims that she faxed and sent emails on May 13, 2013 disputing the amount owed of $2,661.20 and requested validation of the pursuant to the FDCPA. Plaintiff alleges that after further correspondence, on February 26, 2014, WWR provided verification of the debt in the form of credit card statements that did not sufficiently show all charges, debits, or credits to the account to enable Plaintiff or a court to calculate the balanced claimed to be due. Plaintiff asserts that Midland filed a lawsuit against her in state court on August 18, 2014 to collect the debt, and thereby violated the FDCPA, 15 U.S.C. § 1692g(b), by continuing its collection efforts despite its failure to properly verify the debt. Plaintiff further claims that the state court lacked jurisdiction over the matter as a result of Midland's violation of the FDCPA, and, knowing this, Midland maliciously filed its lawsuit against Plaintiff.


On September 3, 2015, Defendants filed the instant Motion for Judgment on the Pleadings. (Docket no. 26). Plaintiff filed the instant Motion for Leave to File Third Amended Complaint on September 18, 2015, through which she seeks to add new and additional factual allegations to support her existing claims, FCRA and intrusion upon seclusion claims against Defendant Midland, and two additional causes of action against both Defendants: Count VI—Negligence and Gross Negligence and Count VII—Negligence Training and Supervision.3 (Docket no. 27.) In her Response to Defendants' Motion for Judgment on the Pleadings, Plaintiff does not respond to Defendants' arguments against her pro se Complaint or advocate against its dismissal in any way; Plaintiff solely contends that her Third Amended Complaint was filed as of right pursuant to Federal Rule of Civil Procedure 15(a)(1)(B) and that because it supersedes her previous complaints, Defendants' Motion is now moot. (Docket no. 30.) Thus, while Plaintiff's Motion for Leave to File Third Amended Complaint has been referred to the undersigned for ruling in a separate opinion and order, it is inextricably intertwined with Defendants' Motion for Judgment on the Pleadings and will be addressed in this Report and Recommendation.



B. Governing Law


1. Judgment on the Pleadings Standard


Defendants move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Docket no. 26.) Rule 12(c) states that a party may move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. “Motions seeking judgment on the pleadings, brought pursuant to Federal Rule of Civil Procedure 12(c), are reviewed under the same standard applied to motions to dismiss brought pursuant to Rule 12(b)(6).” Estate of Malloy v. PNC Bank, No. 11–12922, 2012 WL 1094344, at *4 (E.D. Mich. Apr. 2, 2012) (citation omitted).


A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. The court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). To survive a Rule 12(b)(6) motion to dismiss, the complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and emphasis omitted); see also Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007).


*3 This acceptance of factual allegations as true, however, is inapplicable to legal conclusions: “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. (internal quotations and citations omitted). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. “Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. To make this determination, a court may apply the following two-part test: (1) “identify[ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth;” and (2) assume the veracity of the remaining allegations and “then determine whether they plausibly give rise to an entitlement to relief.” Id.


Defendants provide some information in addition to the pleadings, and when a Rule 12(c) motion presents matters outside the pleadings, the court must convert the motion to a motion for summary judgment under Rule 56 unless the district court excludes such matters. Max Arnold & Sons, LLC v. W.L. Hailey & Co., Inc., 452 F.3d 494, 503 (6th Cir. 2006). But “ ‘matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint[ ] also may be taken into account’ ” without the necessity of converting the motion into one for summary judgment. Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting Amini v. Oberlin Coll, 259 F.3d 493, 502 (6th Cir. 2001)). “Moreover, ‘documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the [plaintiff's] complaint and are central to [his] claim.’ ” Erve v. Henry Ford Cmty. Coll., No. 13-12608, 2014 WL 4705309, at *2 (E.D. Mich. Sept. 22, 2014), appeal dismissed (Jan. 14, 2015) (quoting Weiner, D.P.M. v. Klais & Co., 108 F.3d 86, 88 n. 3 (6th Cir. 1997) and citing Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008) in the context of a Rule 12(c) motion). The evidence provided by Defendants falls under these exceptions.



2. Motion to Amend Standard


Federal Rule of Civil Procedure 15(a) provides that a “party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(A)-(B). Otherwise, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Factors relevant to the determination of whether to permit an amendment include “the delay in filing, the lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 605 (6th Cir. 2001). To determine whether an amendment would be futile, the court determines whether the amendment could survive a motion to dismiss pursuant to Rule 12(b)(6), supra. Keely v. Dep't of Veterans Affairs, No. 10-CV-11059, 2011 WL 824493, at *1 (E.D. Mich. Mar. 3, 2011) (Majzoub, M.J.) (citation omitted).



C. Analysis


As an initial matter, the Court will address Plaintiff's assertion that she filed her third amended complaint as of right pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), which thereby supersedes her previous complaints and renders Defendants' Motion for Judgment on the Pleadings moot. (See docket no. 30.) Rule 15(a)(1)(B) provides that a “party may amend its pleading once as a matter of course ... if the pleading is one to which a responsive pleading is required, [within] 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B). Plaintiff asserts that her third amended complaint was filed as a matter of course because Defendants' Motion was filed pursuant to Rule 12(b). Plaintiff, however, is mistaken, as Defendants' Motion for Judgment on the Pleadings was brought under Rule 12(c). Accordingly, Plaintiff's Motion for Leave to File Third Amended Complaint and her Proposed Third Amended Complaint are governed by Rule 15(a)(2) and may be amended only with the opposing party's written consent or the court's leave. Plaintiff's Motion for Leave to File Third Amended Complaint will therefore be addressed herein.



1. Defendants' Motion for Judgment on the Pleadings [26]


*4 Defendants assert that Plaintiff's Complaint should be dismissed with prejudice on several grounds: (1) Plaintiff's FDCPA, FCRA, and intrusion upon seclusion claims against Defendant Asset are barred by res judicata; (2) the vast majority of Plaintiff's claims are barred by collateral estoppel; (3) Plaintiff's claims against Defendant Asset are barred by a valid release; (4) the majority of Plaintiff's FDCPA claims are barred by the statute of limitations and the other FDCPA claim fails as a matter of law; and (5) Plaintiff's FCRA, intrusion upon seclusion, and malicious prosecution claims fail on the merits. (Docket no. 26 at 6-7.)


Plaintiff responded to the arguments Defendants set forth in their Motion in her reply brief associated with her Motion for Leave to Amend. (Docket no. 35 at 3-5.) The crux of Plaintiff's argument is that her claims are not barred by res judicata, collateral estoppel, a release, or the statute of limitations because the state court lacked jurisdiction. Specifically, Plaintiff contends that:




[t]he Defendants' inability to properly validate the debt, barred them from all collection activities. As such, Defendants illegally assessed my credit information to collect on the debt, and illegally filed debt collection lawsuits against me in the 36th District Court. Thus, making the orders issued by the 36th District Court void for lack of jurisdiction. 15 U.S.C. § 1692g(b)

(Id. at 5.)



a. Plaintiff's Claims against Defendant Asset


First, Defendants assert that Plaintiff's FDCPA, FCRA, and intrusion upon seclusion claims are barred by res judicata where the state-court action, including Plaintiff's counterclaim under the FDCPA, was dismissed with prejudice. (Docket no. 26 at 14-15.) Under the Full Faith and Credit Act, 28 U.S.C. § 1738, “ ‘[f]ederal courts must give the same preclusive effect to a state-court judgment as that judgment receives in the rendering state.’ ” Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 816-17 (6th Cir. 2010) (quoting Abbott v. Mich., 474 F.3d 324, 330 (6th Cir. 2007)). Therefore, a federal court must look to the law of the rendering state in determining any preclusive effect. Hapgood v. City of Warren, 127 F.3d 490, 493 (6th Cir. 1997) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)).


In Michigan, the doctrine of res judicata bars a second, subsequent action “when (1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first.” Adair v. Michigan, 680 N.W.2d 386, 396 (Mich. 2004) (citing Sewell v. Clean Cut Mgmt., Inc., 621 N.W. 2d 222, 225 (Mich. 2001)). Michigan courts take a broad approach to this doctrine and find that it bars not only claims already litigated, but also “every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not.” Id. (citation omitted).


Here, Defendant Asset filed a complaint against Plaintiff in the 36th District Court of Michigan on February 13, 2014, seeking a judgment in the amount of $3,394.99 on Plaintiff's defaulted Citibank credit card account ending in 4927. (Docket no. 26 at 7; docket no. 26-2 at 1.) On June 24, 2014, Plaintiff filed a counterclaim against Asset claiming that Asset's failure to cease collection of the debt, which included the filing of the lawsuit, until it obtained and provided verification of the debt to Plaintiff was a violation of the FDCPA, 15 U.S.C. § 1692g(b). (Docket no. 1 ¶ 30; docket no. 26-2 at 2.) On August 8, 2014, the state court held a pre-trial conference and thereafter ordered that the complaint and counter-complaint were dismissed with prejudice and without costs. (Docket no. 26-2 at 2.) The court also ordered that “each party hereby release each other of any and all liability in regard to this matter.” (Id.)


*5 Applying Michigan's doctrine of res judicata to the facts of the instant matter, Plaintiff's FDCPA, FCRA, and intrusion upon seclusion claims are barred from this Court's review for the following reasons. First, the requirement that the prior action be decided on the merits is satisfied, as a dismissal with prejudice operates as an adjudication on the merits under Michigan law. See Brownridge v. Mich. Mut. Ins. Co., 321 N.W.2d 798, 799 (Mich. Ct. App. 1982) (voluntary dismissal with prejudice); see Michigan Court Rule 2.504(B)(3) (involuntary dismissal with prejudice). Next, the requirement that both actions involve the same parties or their privies is also satisfied; Plaintiff was the defendant and counter-claimant, and Defendant Asset was the plaintiff and counter-defendant in the state-court proceeding. Finally, the third requirement of Michigan's res judicata doctrine is met. Plaintiff's FDCPA claim against Defendant Asset in this matter is substantially similar, if not identical, to her counter-claim in the state-court proceeding, and that claim was resolved by the state court through the dismissal with prejudice. Additionally, Plaintiff's instant FCRA and intrusion upon seclusion claims are dependent upon the success of her FDCPA claim against Asset, and Plaintiff could have been raised them in the state-court proceeding, but she did not. Accordingly, Plaintiff's FDCPA, FCRA, and intrusion upon seclusion claims against Defendant Asset are barred by res judicata.


As noted above, it is Plaintiff's contention that her claims are not barred by res judicata because the state court lacked jurisdiction to enter its orders. But as Defendants point out, it is well settled that a party cannot collaterally attack the basis for a court's jurisdiction. See Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 716 (1982) (citing Chicot Cnty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940) and Stoll v. Gottlieb, 305 U.S. 165 (1938)) (“A party that has had an opportunity to litigate the question of subject-matter jurisdiction may not, however, reopen that question in a collateral attack upon an adverse judgment. It has long been the rule that principles of res judicata apply to jurisdictional determinations—both subject matter and personal.”); see also Kontrick v. Ryan, 540 U.S. 443, 455 n.9 (2004) (citing Des Moines Nav. & R Co. v. Iowa Homestead Co., 123 U.S. 552 (1887); Restatement (Second) of Judgments § 12 (1980)) (“Even subject-matter jurisdiction ... may not be attacked collaterally.”) Ironically, then, Plaintiff's challenge to the state court's jurisdiction and her argument that her claims are not barred by res judicata fail under the principles of res judicata.


The state court's alleged lack of jurisdiction is also the basis for Plaintiff's malicious prosecution claim. Plaintiff claims that Defendant Asset knew that its violation of the FDCPA would deprive the state court of jurisdiction, but Asset “maliciously filed [its] lawsuit[ ] nonetheless.” (Id. ¶¶ 57-58.) Plaintiff, however, cites no authority for her contention that an alleged violation of the FDCPA, 15 U.S.C. § 1692g, precludes a debt collector from filing a lawsuit or that such a violation would divest a court of subject-matter jurisdiction over the lawsuit, and the Court finds none. Conversely, Defendants assert that rules of comity and the only case on point support the opposite conclusion. See docket no. 26 at 17 n.10 (citing Avdeef v. RBS Citizens, N.A., No. 02-12-00069-CV, 2012 WL 6632754, at *3 (Tex. App. Dec. 21, 2012) (“[N]othing in the FDCPA suggests that § 1692g is a statutory prerequisite to filing suit to recover a debt or that a debt collector who fails to comply with this statute would not have standing to sue on the debt.”)). Defendants' position holds merit; Plaintiff's malicious prosecution claim fails on this basis.


Plaintiff's malicious prosecution claim also fails on the merits. “Under Michigan law, in order to state a prima facie case of malicious prosecution, [Plaintiff] ‘must prove: 1. Prior proceedings terminated in favor of the present plaintiff; 2. Absence of probable cause for those proceedings; 3. Malice, defined as a purpose other than that of securing the proper adjudication of the claim; and 4. A special injury that flows directly from the prior proceedings.’ ” Moldowan v. City of Warren, 578 F.3d 351, 390 (6th Cir. 2009) (quoting Payton v. City of Detroit, 536 N.W.2d 233, 242 (Mich. Ct. App. 1995) (citing Young v. Motor City Apartments Ltd., 350 N.W.2d 790, 792 (Mich. Ct. App. 1984))). Plaintiff does not sufficiently plead any of these elements; as discussed above, Plaintiff's allegation that Defendants knew that the state court lacked jurisdiction is without merit, and it does not equate to the “absence of probable cause” necessary to prove a malicious prosecution claim. Accordingly, for the reasons stated, Defendants' Motion for Judgment on the Pleadings as it relates to Plaintiff's claims against Defendant Asset should be granted.



b. Plaintiff's Claims against Defendant Midland


*6 Defendants assert that Plaintiff's FDCPA claims against Defendant Midland are either barred by the statute of limitations or fail to state a claim. (Docket no. 26 at 20-25.) The FDCPA has a one-year statute of limitations. 15 U.S.C. § 1692k(d). Here, Plaintiff seemingly alleges that the FDCPA violations were committed in May 2013, June 2013, February 2014, and August 2014. (Docket no. 1 ¶¶ 34-41.) Plaintiff filed the Complaint in this matter on March 12, 2015; thus, any claims asserted by Plaintiff against Midland related to the May 2013, June 2013, and February 2014 alleged FDCPA violations are barred by the statute of limitations.


In Plaintiff's remaining FDCPA claim against Defendant Midland, Plaintiff asserts that by filing the August 18, 2014 lawsuit against her without properly validating the debt, Midland continued its collection efforts in violation of the FDCPA, 15 U.S.C. § 1692g(b).4 (Docket no. 1 ¶¶ 44-46.) Under § 1692g(b) of the FDCPA,




If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

15 U.S.C. § 1692g(b). Plaintiff alleges that WWR provided her with verification in the form of credit card statements, but they did not show all charges, credits, or debits to sufficiently allow her or a court to calculate the balance claimed to be due. (Docket no. 1 ¶ 40.) Defendant counters that Plaintiff's claim fails as a matter of law because the credit card statements provided to Plaintiff contain the name and address of the original creditor and sufficiently verify the debt. (Docket no. 26 at 20-23.)


“[T]he ‘baseline’ for verification [of a debt] is to enable the consumer to ‘sufficiently dispute the payment obligation.’ ” Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 785 (6th Cir. 2014), reh'g denied (Aug. 8, 2014). Although “an itemized accounting detailing the transactions in an account that have led to the debt is often the best means of accomplishing that objective,” what constitutes adequate verification “depends on the facts of a particular situation.” Id. The Sixth Circuit further explained that “[t]he verification provision must be interpreted to provide the consumer with notice of how and when the debt was originally incurred or other sufficient notice from which the consumer could sufficiently dispute the payment obligation,” but “[t]his information does not have to be extensive.” Id. at 785-86.


Here, Defendant Midland provided Plaintiff with eighteen credit card statements dated from April 2009 to October 2010, which include Plaintiff's name, address, and account number; the original creditor's name, mailing address, and telephone number; and in the most recent statement, the balance of the debt in question, $2,661.20. (See docket no. 26-5.) Notably, Plaintiff does not dispute the credit card account was hers, only the amount owed. (See docket no. 1 ¶¶ 36-37.) While the statements provided do not reflect all charges, debits, or credits on the account that led to the final balance over the life of the account as Plaintiff requests, the eighteen consecutive monthly account statements provided to Plaintiff in this matter constitute sufficient notice from which Plaintiff could sufficiently dispute the payment obligation under Haddad. Defendant Midland therefore provided adequate validation of the debt to Plaintiff in accordance with § 1692g(b) of the FDCPA, and Plaintiff's FDCPA claim against Defendant Midland fails.


*7 Plaintiff's malicious prosecution claim against Defendant Midland also fails. Not only does it fail for the same reasons as her malicious prosecution claim against Defendant Asset, supra, as Defendants point out, Plaintiff is unable to meet the first element of malicious prosecution with regard to Defendant Midland because the prior proceedings terminated in Defendant Midland's favor. (See docket no. 26 at 29-30; docket no. 26-4.) Moreover, Plaintiff's malicious prosecution claim against Defendant Midland is dependent on the success of her FDCPA claim, which, as discussed, fails. Accordingly, Defendants' Motion for Judgment on the Pleadings as it relates to Plaintiff's claims against Defendant Midland should be granted.



2. Plaintiff's Motion for Leave to File Third Amended Complaint [27]


Plaintiff filed the instant Motion for Leave to File Third Amended Complaint shortly after Defendants filed their instant Motion for Judgment on the Pleadings. (Docket no. 27.) Through this Motion, Plaintiff seeks to add new and additional factual allegations to support her existing claims, FCRA and intrusion upon seclusion claims against Defendant Midland, and two additional causes of action against both Defendants: Count VI—Negligence and Gross Negligence and Count VII—Negligent Training and Supervision. (Docket no. 27-1.) Defendants argue that the amendment would be futile because it could not withstand a Rule 12(b)(6) motion to dismiss. (Docket no. 32.)


The Court agrees with Defendants. Plaintiff's Proposed Third Amended Complaint does not plead any additional relevant facts that would cure the deficiencies of her original Complaint. Moreover, like Plaintiff's FDCPA, FCRA, and intrusion upon seclusion claims against Defendant Asset, Plaintiff's proposed negligence claims against Asset would be barred by res judicata, as they could have been brought as part of her counterclaim in the state-court proceeding. As for Plaintiff's proposed FCRA, intrusion upon seclusion, and negligence claims against Defendant Midland, they all depend upon a finding that Midland violated the FDCPA, and as discussed above, Plaintiff's FDCPA claim against Midland fails on the merits. For these reasons, Plaintiff's Proposed Third Amended Complaint would be futile, and Plaintiff's Motion for Leave to File Third Amended Complaint should be denied.



D. Conclusion


For the reasons stated above, the Court should GRANT Defendants' Motion for Judgment on the Pleadings (docket no. 26), DENY Plaintiff's Motion for Leave to file Third Amended Complaint (docket no. 27), DENY Defendants' Motion to Compel Discovery (docket no. 40) as moot, and dismiss this matter in its entirety.



III. NOTICE TO PARTIES REGARDING OBJECTIONS


The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Eastern District of Michigan Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 149 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); U.S. v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n Of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.


*8 Any objections must be labeled as “Objection #1,” “Objection #2,” etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than fourteen days after service of an objection, the opposing party must file a concise response proportionate to the objections in length and complexity. The response must specifically address each issue raised in the objections, in the same order and labeled as “Response to Objection #1,” “Response to Objection #2,” etc.


All Citations
Not Reported in Fed. Supp., 2016 WL 8231941

Footnotes


1
“If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.” 15 U.S.C. § 1692g(b).


2
“A person shall not use or obtain a consumer report for any purpose unless ... the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section.” 15 U.S.C. § 1681b(f)(1).

3
As Plaintiff later admits, Plaintiff's Motion for Leave to File Third Amended Complaint is actually a motion for leave to file a second amended complaint. (Docket no. 35 at 2.) Plaintiff's motion for leave to file a first amended complaint was denied as moot on January 25, 2016. (Docket no. 36.)


4
Plaintiff also asserts that the filing of the lawsuit violates § 1692e(5), which provides that a debt collector may not threaten to take any action that cannot legally be taken or that is not intended to be taken in connection with the collection of any debt. (Docket no. 1 ¶ 46; 15 U.S.C. § 1692e(5).) But the filing of a lawsuit is not a threat to take action in connection with the collection of a debt, it is the taking of an action to collect on a debt. Plaintiff's § 1692e(5) claim fails.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
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