United States District Court, E.D. Michigan, Southern Division
ROBERT A. TURNBULL Plaintiff,
O'REILLY RANCILIO, P.C. Defendant.
OPINION AND ORDER GRANTING IN PART DEFENDANT'S
MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) OR ALTERNATIVELY
FOR SUMMARY JUDGMENT PURSUANT TO RULE 56(c)
K. MAJZOUB UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant O'Reilly
Rancilio, P.C.'s Motion to Dismiss Pursuant to Rule
12(b)(6) or Alternatively for Summary Judgment Pursuant to
Rule 56(c). (Docket no. 8.) Plaintiff Robert Turnbull filed a
Response (docket no. 13), and Defendant filed a Reply (docket
no. 14). With consent of the parties, this case has been
referred to the undersigned for all proceedings in accordance
with 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73. (Docket no. 11.) The Court has reviewed the
pleadings, dispenses with a hearing pursuant to Eastern
District of Michigan Local Rule 7.1(f)(2), and is now ready
case arises from Defendant's efforts to collect on a
student loan debt that Plaintiff incurred in Illinois in
1991. (Docket no. 1-1 in Case No. 11-12333, E.D. Mich.) The
Fair Debt Collection Practices Act requires, among other
things, that “[a]ny debt collector who brings any legal
action on a debt against a consumer shall . . . bring such
action only in the judicial district . . . (A) in which such
consumer signed the contract sued upon; or (B) in which such
consumer resides at the commencement of the action.” 15
U.S.C. § 1692i. The Act further prohibits the “use
of any false representation or deceptive means to collect or
attempt to collect any debt or to obtain information
concerning a consumer.” Id. § 1692e(10).
was hired by the United States Department of
Justice to sue Plaintiff to attempt to collect on
the debt, and on March 10, 2011, Defendant received a file
with Plaintiff's information from the DOJ. The file
contained a “Claims Collection Litigation Report,
” which states that the debtor's name and address
are “Robert A. Turnbull, 2802 Plainfield Ave., Flint,
MI 48506.” (Docket no. 8-1 at 2.)
worth pointing out that Plaintiff's father is Robert
Turnbull, Jr., and Plaintiff is Robert Turnbull, III.
Plaintiff's mother and father own the Flint property, and
Plaintiff has lived there in the past.
file also contained a Credit Bureau Report, which was
generated using Plaintiff's Social Security Number.
(Docket no. 8-1 at 9.) The Credit Bureau Report identifies
the debtor (Plaintiff) as “Robert A. Turnbull, ”
residing at the Flint address. (Id.) Defendant sent a
“debt validation letter” to Plaintiff at the
Flint address on April 14, 2011, indicating that if Plaintiff
did not pay the debt in full, Defendant would “exercise
all legal remedies.” (Docket no. 8-2.) Defendant
contends that he was not residing at the Flint address at
that time, but that he found out about the letter because his
father contacted him. Regardless, after learning of
Defendant's intent to collect the debt, Plaintiff
contacted Defendant's office, but the parties never
agreed to any repayment terms or other resolution. Plaintiff
also did not indicate that he did not live at the Flint
address. Shortly thereafter, on May 26, 2011, Defendant filed
suit against Plaintiff in the Eastern District of Michigan,
Case No. 11-12333.
after filing suit, on May 27, 2011, Defendant filed a
“request for change of address or boxholder
information” on “Robert A. Turnbull, ”
identifying him as residing at the Flint address. (Docket no.
8-4.) The Post Office indicated that there was no change of
address form on file for that individual. (Id.)
Defendant therefore hired a process server, Mr. Dustin
Miller, and instructed him to serve Plaintiff at the Flint
address. According to Defendant, when Mr. Miller appeared at
the Flint address, Plaintiff's father informed Mr. Miller
that Plaintiff had moved to 10311 Charter Oaks Drive, in
nearby Davison, Michigan. (Docket no. 8 at 11.) Mr. Miller
filed an affidavit claiming that he was able to personally
serve Mr. Miller at the Davison address on June 6, 2011.
(Docket no. 8-5.)
never responded to the complaint, and a default judgment was
entered on June 30, 2011. (Case No. 11-12333, docket no. 8.)
On July 21, 2011, Defendant requested, and received, a Writ
of Continuing Garnishment as to Plaintiff and garnishee
Michigan Department of Treasury. (Id., docket no.
12.) Defendant mailed copies of the garnishment documents to
Plaintiff at the Davison address, but did not receive a
response. Three years later, after performing “skip
trace searches and TLO searches, ” Defendant claims
that it discovered a “potential new address in Arizona
and employment for Sears Roebuck and Co.” (Docket no. 8
at 11.) Defendant therefore requested, and received, a second
writ of garnishment in Case No. 11-12333, on October 10,
2014. Defendant attempted to serve Plaintiff with that
garnishment at the Arizona address, but the garnishment was
sent back marked “return to sender.” (Docket no.
8 at 11.) And, the garnishment itself apparently failed
because Plaintiff no longer worked at Sears. (Case No.
11-12333, docket no. 16.)
claims it ran another “skip trace search” in June
2015, and discovered that Plaintiff was employed by TruGreen
Limited Partnership. (Docket no. 8 at 11-12.) Therefore, on
June 9, 2015, Defendant requested and received a garnishment
in Case No. 11-12333 as to Plaintiff and garnishee TruGreen
Limited Partnership. (Case No. 11-12333, docket no. 18.)
Defendant “served” this garnishment on Plaintiff
by mailing it to him at the Flint address on June 29.
(Id., docket no. 19.) Plaintiff claims his father
received the garnishment paperwork in the mail and contacted
Plaintiff, who in turn contacted Defendant and informed
Defendant that he had been a resident of Wisconsin since
2009, and had never been served in the lawsuit which led to
the garnishment. On August 25, 2015, after counsel for
Plaintiff sent Defendant a letter threatening a lawsuit,
Defendant agreed to release the garnishment. (Id.,
docket no. 20.)
1, 2016, Plaintiff filed suit against Defendant, alleging
violations of the Fair Debt Collection Practices Act (FDCPA),
15 U.S.C. §§ 1692i, 1692e(10), and the Michigan
Regulation of Collection Practices Act (MRCPA), M.C.L. §
445.251(a), (e), and (f)(ii). (Docket no. 1.) Shortly
thereafter, the parties agreed to set aside the default
judgment in Case No. 11-12333 and transfer that case to the
Eastern District of Wisconsin. (Case No. 11-12333, docket
nos. 22, 25.) The parties have since settled that case, with
Plaintiff agreeing to pay $1, 453.95 in principal and $2,
249.38 in interest on the student loan. (United States v.
Turnbull, Case No. 16-00829, docket no. 43 (E.D. Wis.
Jan. 10, 2017).)
Motion, Defendant argues that Plaintiff's claims under
the FDCPA and the MRCPA should be dismissed based on the
statute of limitations or because Defendant's decision to
file the 2011 collection suit against Plaintiff in Michigan
was the result of a bona fide error. Plaintiff argues that
the statute of limitations did not begin to run until he
found out about the collection lawsuit, which, he claims, did
not occur until 2015, when his father contacted him about the
garnishment. Plaintiff also argues that Defendant failed to
follow proper procedures to investigate Plaintiff's true
address before filing suit, and therefore cannot rely on the
bona fide error defense. Finally, Plaintiff argues that, in
requesting and receiving the garnishments, Defendant
misrepresented that it had served Plaintiff in the collection
Motion to Dismiss Standard
deciding a motion under Rule 12(b)(6), the court must
“construe the complaint in the light most favorable to
the plaintiff, accept its allegations as true, and draw all
reasonable inferences in favor of the plaintiff.”
Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.
2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619
(6th Cir. 2002). The plaintiff must provide “‘a
short and plain statement of the claim' that will give
the defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957) (quoting Fed.R.Civ.P.
8(a)(2)). But this statement “must be enough to raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
plaintiff cannot rely on “legal conclusions” or
“[t]hreadbare recitals of the elements of a cause of
action;” instead, the plaintiff must plead
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). This “facial plausibility”
is required to “unlock the doors of discovery.”
Id. To make this determination, the Iqbal
Court set out the following two-step analysis:
[A] court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Id. at 679.
a court is presented with a Rule 12(b)(6) motion, it may
consider the Complaint and any exhibits attached thereto,
public records, items appearing in the record of the case and
exhibits attached to defendant's motion to dismiss so
long as they are referred to in the Complaint and are central
to the claims contained therein.” Bassett v.
Nat'l Collegiate Athletic Ass'n, 528 F.3d 426,
430 (6th Cir. 2008) (citation omitted).