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Gartmann v. Hall Render Killian Heath & Lyman PC.

United States District Court, E.D. Wisconsin

February 19, 2016




In this consumer-rights action, Mina Gartmann claims that Clement Manor, Inc. violated the Wisconsin Consumer Act (WCA), Wis.Stat. § 427.104(1)(L).[1] Clement Manor’s alleged violation occurred as part of a letter it mailed to Gartmann concerning a purported outstanding balance on her late husband’s account. Gartmann seeks to represent a class of claimants.

Clement Manor moves to dismiss under Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which relief may be granted. Rule 12(b)(6) requires a plaintiff to clear two hurdles. EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007). First, the complaint must describe the claim in sufficient detail to give a defendant fair notice of the charge and the grounds on which it rests. Id. Second, the complaint must set forth a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007). The “allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a ‘speculative level’; if they do not, the plaintiff pleads itself out of court.” EEOC, 496 F.3d at 776 (citing Bell Atl. Corp., 550 U.S. at 555-56, 569 n.14 (2007)). Clement Manor does not contend that the complaint fails to give fair notice of Gartmann’s claim. Instead, it contends that Gartmann has no plausible claim because she has pled herself out of court-because the facts asserted, even if true, fail to establish a WCA violation.

When considering a Rule 12(b)(6) motion, the court must construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts and drawing all possible inferences in the plaintiff’s favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).


Taking the facts stated in the complaint as true, Clement Manor provides health care and residential services to individuals and actively collects debts owed to it and incurred for personal, family or household purposes, in particular for medical care. (Doc. 1, ¶¶ 8, 9.) Gartmann’s husband obtained residential medical care from Clement Manor on several dates in 2014. (Doc. 1, ¶ 12.) She and her husband were not required to pay for those services when they were rendered; instead, the bills were mailed by Clement Manor afterward. (Doc. 1, ¶ 13.) Gartmann’s husband passed away in August 2014. (Doc. 1, ¶ 14.)

On or around September 24, 2014, Clement Manor mailed a debt collection letter to Gartmann regarding the alleged debt related to her husband’s medical care. (Doc. 1, ¶ 15.) The body of the letter, which Gartmann attached to the complaint, reads:

The current outstanding balance on your husband’s account is $6, 240.85.
This balance is past due for patient liability owed to Clement Manor for months April through June 2014. These amounts are your responsibility per T19. We have received one payment for July patient liability on August 15th in the amount of $1, 968.49.
Please remit payment of $6, 240.85 in full or contact the Business Office at 546-7334 or 546-7337 to discuss.
If payment has not been made, or contact made to the Business Office, then you leave us no alternative but to begin collection agency [sic] for nonpayment.

(Doc. 1, Ex. A.[2]) The court will refer to this letter as the “Clement Manor debt-collection letter.”

Clement Manor mailed letters in the same form as the Clement Manor debt-collection letter to each member of a purported class consisting of all persons in the State of Wisconsin to whom such a letter was sent on or after January 23, 2014, seeking to collect an obligation for personal, family or household purposes, and whose accounts Clement Manor did not send to a collection agency within sixty days. (Doc. 1, ¶¶ 22, 41.)

Clement Manor sent Gartmann account statements dated September 30, 2014, and November 30, 2014, both of which reflected a balance of $6, 250.85 and the statement “PAST DUE PLEASE REMIT.” (Doc. 1, ¶ 19, Ex. B.) ...

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