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Carlson v. Patrick K. Willis Company, Inc.

United States District Court, W.D. Wisconsin

November 18, 2019

QUINTON CARLSON, on behalf of himself and all others similarly situated, Plaintiff,
v.
PATRICK K. WILLIS COMPANY, INC. and SEAN SASVILLE, Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON, DISTRICT JUDGE.

         Plaintiff Quinton Carlson is suing defendant Patrick K. Willis Company, Inc. and its employee Sean Sasville under the Fair Debt Collection Practices Act (FDCPA). Carlson contends that Sasville made two telephone calls attempting to collect a debt he owed on a truck and that Sasville's calls included threats, misrepresentations, and other statements that violated the FDCPA. Carlson also seeks to represent a class of Wisconsin consumers who he says have been harmed by Willis's alleged illegal debt-collection practices.

         Several related motions are before the court: (1) Willis's motion to dismiss Carlson's complaint under Federal Rule of Civil Procedure 12(b)(6), Dkt. 18; (2) Willis's motion to dismiss Carlson's claims against Sasville based on Carlson's failure to serve Sasville with his amended complaint, Dkt. 36; (3) Carlson's motion for an extension of time to serve process on Sasville, Dkt. 39; and (4) Willis's motion for sanctions against Carlson under Federal Rule of Civil Procedure 11, Dkt. 30.

         The court will grant Willis's motion to dismiss Carlson's amended complaint for failure to state a claim. Although the parties agree that Carlson has failed to serve Sasville, the court will dismiss the complaint as to both defendants because the reasons for dismissal apply equally to both defendants and because Carlson has had the opportunity to respond to Willis's motion as it applies to both defendants. See Hancock v. Sotheby's, Nos. 17 C 7446 and 18 C 4580, 2018 WL 6696071, at *3 n.4 (N.D. Ill.Dec. 20, 2018) (dismissing claims sua sponte against unserved defendants who hadn't yet appeared because other defendants' motion to dismiss raised arguments that applied equally to all defendants and because plaintiff had adequate opportunity to respond) (citing Malak v. Assoc. Physicians, Inc., 784 F.2d 277, 280 (7th Cir. 2011)). Accordingly, the court will deny the parties' motions relating to service on Sasville as moot. The court will also deny Willis's motion for sanctions because Willis hasn't shown that Carlson's factual or legal assertions warrant sanctions under Rule 11's standards.

         ALLEGATIONS OF FACT

         The court draws the following facts from Carlson's amended complaint, Dkt. 17, which it accepts as true for the purposes of deciding Willis's motion to dismiss. Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003). The court will also consider facts from documents provided by Willis: a copy of a contract between Willis and Carlson's creditor, which was referred to in Carlson's amended complaint, and transcripts of Sasville's two phone conversations, which Willis filed in response to Carlson's initial complaint. Although Carlson doesn't expressly refer to these transcripts in his amended complaint, he appears to quote from them directly, compare Dkt. 17, ¶¶ 40-42, 46-50 with Dkt. 6-1 and Dkt. 6-2, and he doesn't object to Willis's use of them. So the court will consider these documents under the doctrine of incorporation by reference, which allows a defendant to attach documents to a motion to dismiss that are referred to in the complaint and central to the plaintiff's claim. Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994).

         Carlson purchased a truck on credit in 2015. The terms of his loan granted the creditor, Ford Motor Credit Company, LLC, a security interest in the truck. After Carlson fell behind on his loan payments the next year, Ford retained Willis to locate and repossess the truck. The agreement between Willis and Ford provided that Willis would be paid if the truck was recovered or if Carlson paid or settled his debt with Ford.

         In January 2019, Carlson spoke over the phone with Sasville, a Willis employee. Sasville identified himself as “Sean Michaels” with “SB Investigations.” Dkt. 21-1, at 2. Sasville said he was contacting Carlson about the truck, and Carlson responded that the truck was in storage. Sasville said that Ford wanted “to set up a time and date to get the vehicle picked up” and asked Carlson if Sasville could “convince [Carlson] to do the right thing and turn the vehicle in.” Id. at 2-3. Carlson said that Ford had illegally refused to allow him to make up missed payments and that he would keep the truck until his dispute with Ford was resolved. Carlson then told Sasville that the truck was no longer in the country. Id. at 4. Sasville replied, “I'm definitely going to continue reaching out to your whole entire family and everyone I can get ahold of that you know. Maybe someone will let me know.” Id. Carlson responded, “Yeah, do that. Do that. You know, just be real careful about how you do it.” Sasville then said, “Okay. You think . . . Alexandra [Carlson's daughter] or Noah [Carlson's brother], or any of them know anything?”, to which Carlson replied, “Hey, you know what, give them a call. Find out. Just be careful what you say. Cause I'll sue the shit out of you, too.” Id.

         Later that day, Sasville called Carlson's son, Anthony. Sasville again identified himself as “Sean Michaels” with “SB Investigations.” Dkt. 21-2, at 2. Anthony claimed not to know Carlson, to which Sasville replied, “Okay. No worries because I was definitely going to see if you knew [Carlson] and offer you some money if you could help me locate a vehicle.” Id. Anthony again declined to help Sasville, and Sasville responded, “No worries, man. I appreciate it. I'll continue to reach out to some other family members.” Id.

         Carlson filed a complaint on March 8, 2019, and an amended complaint on April 17, 2019. In his amended complaint, he alleges that defendants violated various provisions of the FDCPA during Sasville's calls because Sasville used fictitious names for himself and Willis, threatened to disclose Carlson's debt to Carlson's family members, disclosed the debt to Anthony, and offered to pay Anthony to help locate the truck.

         ANALYSIS

         Willis moves to dismiss Carlson's complaint on multiple grounds, but its main argument is that Willis isn't a “debt collector” under the FDCPA provisions cited in Carlson's complaint and therefore isn't regulated by those provisions. Because Willis is correct on this point, the court doesn't need to consider Willis's other arguments for dismissal. Willis also contends that Carlson's complaint includes false allegations and frivolous legal arguments warranting sanctions under Rule 11, but the court isn't persuaded that sanctions are appropriate.

         A. Motion to dismiss

         The FDCPA regulates the behavior of debt collectors. The FDCPA provisions cited in Carlson's complaint regulate debt collectors' communications with third parties; require them to disclose their identities in telephone calls; and prohibit them from using misrepresentation, deception, and unfair or unconscionable methods of debt collection. 15 U.S.C. §§ 1692c- 1692f. For the purposes of these provisions, the FDCPA defines a “debt collector” as a person engaged in a business whose “principal purpose ...


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