United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
a case about sewer service. Plaintiff, Wyndham Gary
(“Gary”), was a defendant in a state-court
collection action. He claims that he was never properly
served with process. Defendants allegedly made false
statements to the contrary in that proceeding. Those false
statements nearly allowed the plaintiff to obtain a default
judgment against Gary. He has now filed this action against
Gurstel Law Firm, P.C. (“Gurstel”), the law firm
that represented the plaintiff, and Badger Process Services,
Inc. (“Badger”), the company that Gurstel hired
to effect service. Gary claims that Defendants' conduct
violated the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et
seq., and his constitutional due-process rights as
protected in 42 U.S.C. § 1983. Defendants have moved to
dismiss and, for the reasons stated below, the motion will be
granted in part and denied in part.
Rule of Civil Procedure 12(b)(6) provides for dismissal of
complaints which fail to state a viable claim for relief.
Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint must
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). In other words, the complaint must give
“fair notice of what the. . .claim is and the grounds
upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The allegations must
“plausibly suggest that the plaintiff has a right to
relief, raising that possibility above a speculative
level[.]” Kubiak v. City of Chicago, 810 F.3d
476, 480 (7th Cir. 2016) (citation omitted). In reviewing the
complaint, the Court is required to “accept as true all
of the well-pleaded facts in the complaint and draw all
reasonable inferences in favor of the plaintiff.”
Id. at 480-81.
considering a motion to dismiss under Rule 12(b)(6), the
court is generally limited to the allegations within the four
corners of the complaint. To rely upon extrinsic materials,
the court would normally be required to convert the motion to
dismiss into one for summary judgment. See Fed. R.
Civ. P. 12(d). Nevertheless, a court can consider other
documents if they are referred to in the pleadings and
central to the case. See Fed. R. Civ. P. 10(c);
Hecker v. Deere & Co., 556 F.3d 575, 582 (7th
incurred a debt with American Express Bank FSB. He defaulted
on the debt, and so a lawsuit was instituted against him in
Milwaukee County Circuit Court. Gurstel represented the bank,
and Badger was retained by Gurstel to serve the summons on
claims that service was never made. (Docket #24-3 ¶ 6).
He alleges that Badger's employee, Timothy Pinney
(“Pinney”), provided a false affidavit of
service. In the affidavit, Pinney stated that on April 26,
2017, he effected substitute service of the summons on
“John Doe (refused to give name), ” identified as
Gary's “co-resident, ” at Gary's
apartment. (Docket #24-1 at 2). Pinney averred that when he
served John Doe, he “informed said person of the
contents [of the summons], in compliance with state
statutes.” Id. The affidavit further reflects
that Pinney made three prior, unsuccessful attempts at
service on Gary personally during the six-day period leading
to April 26. Id.
alleges that he was in Houston, Texas on business from April
23-27, 2017. (Docket #22 ¶ 22); (Docket #24-3 ¶ 3).
He explains that the “John Doe” mentioned by
Pinney was his roommate, Dan Hansher (“Hansher”).
(Docket #22 ¶ 21). According to Hansher, Pinney came to
their door that night and asked for Gary. Id.
¶¶ 23-24. Hansher stated that Gary was out of town
and shut the door. Id. ¶ 25. Later, Hansher
found copies of “documents related to the
case”-he did not say whether they were the summons and
complaint-outside the door. Id. ¶ 26; see
also (Docket #22 ¶¶ 19-26).
later sought a default judgment against Gary. To support the
motion, Badger (through Pinney) prepared the false affidavit
of service, and Gurstel filed it with the court. Gary, who
had heard of the case from Hansher, entered his appearance
through counsel and opposed the motion. The court later
denied the motion for default judgment.
asserts two claims in this case. First, he contends that
Defendants' actions in preparing and relying upon a false
affidavit of service in the collection action constituted
false and misleading statements made in connection with the
collection of a debt, in violation of the FDCPA, 15 U.S.C.
§ 1692e. Second, Gary argues that Defendants'
reliance upon improper service in the state court action
denied him his due-process rights secured by the Fourteenth
Amendment, in violation of 42 U.S.C. § 1983.
motion to dismiss largely avoids the substance of Gary's
claims-that is, Defendants do not contest the notion that
sewer service might give rise to an FDCPA or Section 1983
claim. Rather, Defendants say that service was unquestionably
proper based on documents the Court can consider in
connection with its motion, including Pinney's affidavit
of service and Hansher's and Gary's affidavits
submitted in the state collection action. For that reason,
Defendants posit that no false statement was ever made, and
thus no FDCPA or Section 1983 violation occurred.
Wisconsin, service of process is governed by Wis.Stat. §
801.11, which provides, in relevant ...