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Gary v. Badger Process Services Inc.

United States District Court, E.D. Wisconsin

November 13, 2017

WYNDHAM GARY, Plaintiff,



         This is 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.

         1. LEGAL STANDARD

         Federal 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.

         When 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 Cir. 2009).

         2. RELEVANT FACTS

         Gary 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 Gary.

         Gary 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.

         Gary 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).

         Gurstel 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.

         3. ANALYSIS

         Gary 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.

         Defendants' 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.

         In Wisconsin, service of process is governed by Wis.Stat. § 801.11, which provides, in relevant ...

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