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Janson v. Katharyn B. Davis, LLC

United States District Court, Eastern District of Missouri, Eastern Division

December 11, 2014




Before the court is the Motion to Dismiss filed by Katharyn B. Davis, LLC. (Doc. 10). The matter is fully briefed and ready for disposition. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 15).


Fed. R. Civ. P. 12(b)(6) provides for a motion to dismiss based on the “failure to state a claim upon which relief can be granted.” The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of a complaint so as to eliminate those actions “which are fatally flawed in their legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001). To survive a motion to dismiss, a complaint must show “‘that the pleader is entitled to relief, ’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” The pleading standard of Rule 8 “does not require ‘detailed factual allegations, ’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 1949 (quoting Twombly, 550 U.S. at 555).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to defeat a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). The plaintiff must give the defendant fair notice of the nature of his claim and provide plausible factual allegations to support the claim on the face of the complaint. Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012). “[A] claim must be facially plausible, meaning that the ‘factual content … allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010). See also Erickson v. Pardus, 551 U.S. 89 (2007).

Further, in regard to a Rule 12(b)(6) motion, the Supreme Court holds:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [citations omitted] a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ... see, e.g., ... Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (“Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”).

Twombly, 550 U.S. at 555-56. Thus, the Court must “accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Iqbal, 556 U.S. at 678. Additionally, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556 (citation omitted). “The issue is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support [its] claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In addition, “documents attached to or incorporated within a complaint are considered part of the pleadings, and courts may look at such documents for all purposes, including to determine whether a plaintiff has stated a plausible claim[.]” Brown v. Medtronic, Inc., 628 F.3d 451, 459-60 (8th Cir. 2010).


Plaintiff Christopher F. Janson (Janson) brings his cause of action pursuant to the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-2692p. Plaintiff alleges that § 1692e of the FDCPA prohibits false, deceptive, or misleading representations in connection with the collection of a debt, and § 1692f prohibits unfair or unconscionable means to collect or attempt to collect a debt; that Mo. Rev. Stat. § 535.020 requires that rent-and-possession lawsuits be verified by affidavit; that Defendant Katharyn B. Davis, LLC, (the Law Firm) filed a false affidavit when filing a rent-and-possession lawsuit in State court against Janson (the Lawsuit); and that, therefore, the Law Firm violated the FDCPA.

Specifically, Janson alleges that the Law Firm, which litigates exclusively for creditors, is a debt collector under § 1692a(6) of the FDCPA; the Law Firm, on behalf of its client, Morgan Linen, LLC, (Morgan Linen) filed the Lawsuit against Janson in State court, which lawsuit it titled “Affidavit and Petition in Rent and Possession”; Janson is a consumer within the meaning of § 1692a(3) of the FDCPA; the claim for unpaid rent in the Lawsuit is a debt under § 1692a(5) of the FDCPA, as it was for personal, family, or household purposes; Missouri imposes a verified-by-affidavit requirement for rent-and-possession lawsuits because in such lawsuits defendants lack many of the rights they enjoy in other civil litigation, in that, among other things, defendants are not entitled to trial by jury, discovery is limited, and trials are expedited; Christopher W. Basler (Basler), a lawyer employed by the Law Firm, was acting as Morgan Linen’s agent when he signed the affidavit in support of the Lawsuit; Basler swore before a notary that the allegations of the affidavit were true; in the affidavit, in support of the Lawsuit, Basler stated that Janson owed a sum of $4, 400.00 for rent for the property known as 3124 Olive St., St. Louis, Apartment 9 (the Loft) and $685 for other charges, for a total of $5, 085.00, and that Morgan Linen was requesting that sum, plus restitution/possession of the Loft. (Doc. 1 at 1-7).

Janson further alleges that, at the trial of the Lawsuit, he called Basler as a witness and examined him regarding his personal knowledge of the facts at issue, and that Basler testified, among other things, that he did not draft the lease for the Loft; that he was not involved in negotiating the lease; that he was not the custodian of the lease; that he was not responsible for collecting the rent and never talked with Janson about the lease or paying the rent; that he first conversed with the landlord’s agent when he was hired; that he was not responsible for collecting rent on behalf of the landlord; that the only basis for his swearing to the truth of the averments in the affidavit was the information provided by the landlord’s agent; and that the process used to “verify the affidavit” in the Lawsuit was the same process that the Law Firm used in “hundreds of lawsuits” in Missouri. Janson additionally alleges in his Complaint that, in the Lawsuit, the State court entered judgment in favor of Morgan Linen and against Janson for $5, 500 in rent and $1, 500 in attorney’s fees and court costs. (Doc. 1 at 7-10).

Janson claims that because, in the Lawsuit, the Law Firm “swore by affidavit” to facts which it did not know were true, the Law Firm made a false, deceptive or misleading representation in connection with the collection of a debt and that it used unfair or unconscionable means to collect or attempt to collect a debt, in violation of §§ 1692e and 1692f of the FDCPA. Plaintiff seeks actual damages, statutory damages, punitive damages, costs, and attorney’s fees. Plaintiff brings Count 1 ...

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