United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
This case brought under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692d-f, and under state law for abuse of process, is before the Court on the motion of Defendant Dennis J. Barton, III, to dismiss the complaint for failure to state a claim. For the reasons set forth below, the motion shall be granted in part and denied in part.
Plaintiff Sophornia Harris's action, filed on December 18, 2013, arises out of Barton's attempt to collect a debt Plaintiff allegedly owed to St. Anthony's Medical Center ("St. Anthony's") for medical services. Plaintiff alleged in her original complaint that Barton is an attorney whose principal business is the collection of debts for collection agencies. She alleged that sometime prior to October 26, 2012, St. Anthony's assigned the debt in question to such an agency, pursuant to Missouri Revised Statute § 425.300. This section provides that "[c]ollection agencies may take assignment of claims in their own name as real parties in interest for the purpose of billing and collection and bringing suit in their own and the claimant's names thereon...." Mo. Rev. Stat. § 425.300.
Plaintiff further alleged that about 30 days prior to the assignment, Barton sent her a letter (the September 2012 letter) and called her indicating in the letter and phone call that he represented St. Anthony's and was seeking to collect the debt in question. The letter was printed on Barton's law firm's letterhead, and was purportedly signed by him. Plaintiff alleges that Barton was not personally involved in drafting or signing the letter and that neither he nor another attorney undertook an independent review to determine whether Plaintiff actually owed the debt.
On October 26, 2012, Barton filed a petition in state court against Plaintiff, at the behest of the collection agency, naming only St. Anthony's as the plaintiff and not mentioning the assignment of the debt. Barton signed the petition as "Attorney for Plaintiff" even though, according to Plaintiff, he had had no communication with St. Anthony's prior to filing the petition. Plaintiff was never served with the petition and on January 30, 2013, Barton dismissed the case without prejudice.
Plaintiff alleged that in November 2013, she learned for the first time, with the help of counsel, that Barton, "contrary to his many representations to the contrary, never actually represented St. Anthony's... with respect to the debts that [he] attempted to collect." In Count I of her original complaint, Plaintiff asserted that Barton's debt collection activities described above involved false representations and unfair practices in violation of the FDCPA, and in Count II she asserted a state law claim for abuse of process.
Barton moved to dismiss, arguing, in part, that the FDCPA one-year statute of limitations barred the claims under that statute. Thereafter, on April 23, 2014, Plaintiff moved to file an amended complaint, with the proposed amended complaint attached to the motion. This motion was granted on May 15, 2014. The amended complaint is virtually identical to the original complaint except that it adds the allegation that after the dismissal of the state court petition, Barton (and the collection agency) sent her at least one additional collection letter, with Barton continuing "the misrepresentation that [he] was the attorney for St. Anthony's and that St. Anthony's was collecting from Plaintiff directly.'" Plaintiff makes no mention of the date this alleged letter was sent or received.
Plaintiff also added to the amended complaint that on or about October 25, 2013, she learned "through Case.net" about the state lawsuit, sought legal advice "shortly thereafter, " and on or about November 1, 2013, learned that Barton never actually represented St. Anthony's. Attached to the amended complaint is a letter dated February 17, 2014, addressed to Plaintiff's attorney from Laura Frame, General Counsel of St. Anthony's, confirming that Barton was not employed by, nor ever had a contractual relationship with, St. Anthony's.
For dismissal, Barton again argues that the FDCPA claims based on the September 2012 letter and phone call are barred by the statute's one-year limitations period, which, according to Barton, is jurisdictional and not subject to equitable tolling, and in any event, Plaintiff has not met the standard for such tolling. He argues that Plaintiff should not be able to proceed with an FDCPA claim based on the letter allegedly sent after the state action was dismissed, without affirmatively pleading the date of that letter, to show that it was sent after May 14, 2004, and thus not barred by the statute of limitations.
Barton also contends that all claims based on the filing of the state lawsuit fail as a matter of law because Plaintiff was never served with the petition. Alternatively, Barton argues that the claims based on the state lawsuit should be dismissed because St. Anthony's assignment of the debt to the collection agency pursuant to § 425.300 authorized the agency to hire Barton to file the Lawsuit with only St. Anthony's as the named plaintiff. For this same reason, Barton argues that Plaintiff failed to state a claim for abuse of process under Missouri law.
In response, Plaintiff argues that even though she was not served with the state petition, Barton violated the FDCPA by making deceptive misrepresentations therein, namely his status as St. Anthony's attorney and that St. Anthony's was the only party in interest. She argues that the FDCPA claim based on the state lawsuit is timely because (1) Barton's dismissal of the state petition on January 30, 2014, was itself a deceptive action, because he did so purporting to be St. Anthony's attorney, and (2) he kept the state case active in a continued deceptive attempt to collect the debt until the dismissal, which was well within the one-year statute of limitations.
Plaintiff argues alternatively, that her FDCPA claims based on Barton's September 2012 letter and filing the state lawsuit are not time-barred because the timely claims based on the dismissal of the lawsuit and the post-dismissal letter set "a new limitations clock" for the earlier alleged violations of the FDCPA. She further argues that the one-year limitations period is subject to tolling and that grounds for tolling exist here, as Barton concealed the truth about his lack of authority from St. Anthony's and Plaintiff could not have known that the alleged September 2012 ...