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Bjerke v. Messerli & Kramer, P.A.

United States District Court, W.D. Wisconsin

July 5, 2017

PETER BJERKE, Plaintiff,
v.
MESSERLI & KRAMER, P.A., Defendant. [1]

          OPINION AND ORDER

          BARBARA B. CRABB, District Judge

         Plaintiff Peter Bjerke brought this action against defendants Messerli & Kramer, P.A., Wisconsin CVS Pharmacy, LLC and CVS RX Services, Inc., alleging violations of the federal Fair Debt Collection Practices Act, the Wisconsin Consumer Act and the Wisconsin common law of negligence. Plaintiff has since settled with defendants Wisconsin CVS Pharmacy, LLC and CVS RX Services, Inc., and the court dismissed all claims against the CVS defendants with prejudice on February 27, 2017. Dkts. ##31 and 37. Messerli & Kramer, P.A. is the lone remaining defendant.

         Defendant Messerli has filed a motion to dismiss plaintiff's amended complaint for failure to state a claim upon which relief can be granted and for lack of jurisdiction for failure to comply with the FDCPA's one-year statutory limitation period. Dkt. #22. For the reasons stated below, I am granting defendant's motion as to plaintiff's claim of negligent supervision and training, as well as defendant's motion to dismiss FDCPA claims based on conduct by defendant Messerli that occurred before November 14, 2015. However, I am denying defendant's motion to dismiss as to all remaining claims under the FDCPA and WCA. I am also denying as premature the motion by plaintiff's counsel, dkt. #35, to appear at the final pretrial conference (scheduled for April 26, 2018) by telephone. This denial is without prejudice to plaintiff's refiling the motion as the case progesses closer to that stage.

         The following facts are drawn from plaintiff's amended complaint and documents submitted by the parties that are relevant to deciding defendant's motion to dismiss.

         BACKGROUND FACTS

         A. Allegations of the Amended Complaint

         Plaintiff Peter Bjerke owed several thousand dollars of credit card debt to Citibank USA, N.A. that was consigned to Midland Funding, LLC, a creditor client of defendant Messerli & Kramer, P.A. On behalf of its client, defendant Messerli filed an action to recover that unpaid debt in the Circuit Court for Dunn County, Wisconsin on March 18, 2014. On April 2, 2014, defendant Messerli obtained a judgment against plaintiff for its client in the amount of $4, 091.20. To collect on that judgment, defendant Messerli issued a garnishment against plaintiff's employer, CVS Caremark, and filed a notice of garnishment with the court on November 10, 2014. Soon after, CVS responded and said that it would garnish plaintiff's earnings. By March 2015, all of the money necessary to satisfy the judgment had been garnished from plaintiff's CVS paychecks. However, CVS did not transfer the money to either defendant Messerli or defendant's creditor client. As a result, neither received the garnished funds, which remained in CVS's possession.

         Defendant Messerli contacted CVS on several occasions to inquire about the garnishment, but received no response. Not knowing the status of the funds, in October 2015, defendant Messerli filed a second notice of garnishment to collect on the original judgment. (It is unclear from the amended complaint whether the action for the second garnishment was initiated on October 12, 16 or 22.) On November 4, 2015, plaintiff filed a response stating that CVS had already garnished his paycheck accounts for the total amount that he owed. Apparently that same day, defendant Messerli attempted to contact CVS again via phone, mail and fax, and stated in a letter to CVS that “[w]e received a Debtor's Answer stating this garnishment was paid thru the prior garnishment on November 4, 2015.” Am. Cpt. ¶ 26, dkt. #15.

         Through its employees and agents, defendant Messerli then left the following four messages on plaintiff's cell phone voicemail:

1. On or about, December 14, 2015: “Hi, my name is Nicole from Messerli and Kramer. I'm trying to reach Peter. If you could please return my phone call at 763-548-7746, and please reference your file number 14102645. Again, my name is Nicole from Messerli and Kramer, 763-548-7746. Thank you.” . . .
2. On or about, December 23, 2015: “Hi Peter, it's Nicole at Messerli and Kramer. I really need you to call me back regarding the payroll, or else we're going to have to schedule a hearing with a judge, and that's fine. I don't mind doing that, but I would think that you would prefer not to [inaudible 00:00:41] in court. If she could ... I need to get this money from CVS. If you could please answer my phone call at 763-548-7746. Please reference file number 14-102645. I will be out of the office Thursday and Friday, back on Monday, December 28. Again, please give me a call as soon as possible because we have got to get this money from CVS. If I can't contact you and contact them, I'm going to have a judge get it resolved. Again, 763-548-7746. Thank you. Bye.” . . .
3. On or about, January 5, 2016: “Hi Peter, it's Nicole with Messerli and Kramer. I still haven't heard back from you the past 6 weeks. I'm going to have to proceed accordingly. Give me a call back at 763-548-7746, and watch your mail for other information if I don't hear back from you. Thank you.” . . . On or about, March 1, 2016: “Hi [Peter], this is Paula at
4. Messerli and Kramer. I'm canceling that hearing tomorrow, but I need you to keep in touch with me because this is not over, and I don't want to have to involve you with going to court again. I want to try to [inaudible 00:00:36], but I need you to keep in touch with me, and we've got to get this resolved. My number is 723-548-7746. Thank you.”

Id. ¶ 27. These phone calls and voice messages “harmed Plaintiff by depleting the battery life on his cellular phone, which cost Plaintiff time and expense to recharge, and by using minutes allocated to Plaintiff by his cellular telephone service provider.” Id.¶ 35.

         “Eventually, ” CVS paid the garnished funds to defendant Messerli or its creditor client and the judgment was satisfied, “but not until Plaintiff was forced to unnecessarily spend his time, money, and other limited resources to fix the problem. . . . Messerli knew Plaintiff did not have to pay any more on the debt at issue.” Id. ¶ 29. Plaintiff also “expended months of personal time and incurred personal expenses in having to attempt to resolve this matter on his own”; “has been severely agitated, annoyed, traumatized, emotionally damaged and has otherwise been unduly inconvenienced”; ...


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