United States District Court, D. Idaho
KEITH ROSKELLEY, on behalf of himself and others similarly situated, Plaintiff,
v.
COLLECTION BUREAU, INC., an Idaho corporation and MARK L. CLARK, an individual, and MARK L. CLARK, PLLC, an Idaho professional limited liability company, Defendants.
MEMORANDUM DECISION AND ORDER
HONORABLE CANDY W. DALE UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION
Before
the Court are Plaintiff's motion to amend the complaint,
Defendants' motion to strike Plaintiff's class
allegations, and Defendants' motion for protective order
and to stay discovery pending the resolution of the motion to
strike. (Dkt. 25, 26, 27.) The parties filed responsive
briefing, and all matters are now ripe. The Court inquired
about oral argument on the motions during a telephonic status
conference conducted on August 5, 2019, and the parties
agreed to submit the matter without oral argument. Upon
review of the record, the Court finds that the decisional
process would not be significantly aided by oral argument,
and therefore the motion will be decided on the record before
this Court. Dist. Idaho L. Rule 7.1(d). For the reasons that
follow, the Court will grant in part and deny in part
Plaintiff's motion to amend; deny Defendants' motion
to strike; and deny Defendants' motion to stay as moot.
BACKGROUND
Keith
Roskelley alleges that, on March 19, 2018, Collection Bureau,
Inc. filed a complaint against him and his adult daughter,
Amanda Roskelley, in Idaho state court, claiming that they
owed $5.00 to Primary Health Medical Group, $46.13 to Saltzer
Clinics, $200.00 to Idaho Plumbing Company, and $11.55 to
Primary Health Medical Clinic. The summons and complaint were
delivered to Amanda Roskelley at her residential address in
Boise on March 3, 2018. However, Keith Roskelley has resided
in, and still resides in, Meridian and never resided with his
28-year-old daughter at her residence in Boise. Roskelley
denies he had any responsibility to pay his daughter's
medical debts, but that nonetheless, CBI wrongfully sued him
together with his daughter in the collection
action.[1]
Roskelley
contends he did not know of the collection complaint filed
against him until October of 2018, when Roskelley received
notice from his employer that CBI was garnishing his wages.
Roskelley asserts the wage garnishment notice was his first
notice that a collections complaint had been filed, and
judgment had been entered, against him. He retained local
attorney Ryan Ballard[2] for assistance with setting aside the
default judgment based upon improper service. According to
Roskelley, CBI filed an unopposed motion to set aside the
default judgment entered against him, averring that
“Mr. Roskelley is not responsible” for the debts.
The state court granted the motion.
Shortly
after the collection action was resolved, on December 20,
2018, Roskelley filed the complaint before the Court alleging
that Defendants Collection Bureau, Inc., Mark L. Clark, PLLC,
and Mark L. Clark (collectively, CBI) are debt collectors who
employ policies that cause Defendants to violate the Fair
Debt Collection Practices Act (FDCPA) in two ways: (1) by
filing lawsuits against debtors who are not responsible to
pay each debt at issue; and (2) serving only one defendant
before seeking a default judgment, even if the co-defendant
resides at a different address. Roskelley claims these
violations occur because of CBI's practice of suing
people with the same last name, based upon an assumption they
are spouses, to collect a debt that only one of the
individuals owes.
Roskelley
brings this matter as a potential class action on behalf of
the following persons similarly situated:
Each person named as a defendant in a collection action filed
by CBI in Idaho courts within one year prior to the filing of
this action, who does not appear in the records provided to
CBI by the original creditor for each alleged debt as person
responsible for the alleged debt.
The
complaint contains two FDCPA claims asserted under 15 U.S.C.
§ 1692e and 15 U.S.C. § 1692f, which prohibit debt
collectors from using false, deceptive or misleading
representations or means in connection with the collection of
any debt, and from using any unfair or unconscionable means
to collect any debt, respectively.
In
support of its motion to strike, CBI submitted the
declaration of Mark L. Clark, setting forth facts that
establish CBI's decision to link the separate collection
accounts of Keith and Amanda Roskelley was a mistake, based
upon an incorrect assumption that the two were husband and
wife such that community assets were available to satisfy the
debts. (Dkt. 25-1 at 12.) This mistake was then perpetuated
when CBI served the summons and complaint upon Amanda
Roskelley at her residence, because CBI assumed she was Keith
Roskelley's spouse and they resided together. Clark
stated also that, once the judgment against Keith Roskelley
was set aside, Mr. Roskelley acknowledged liability for two
of the four CBI accounts described in the collection
complaint and he paid CBI the balance due for those two
accounts. Mr. Roskelley does not deny these facts, although
he objects to the Court's consideration of the Clark
Declaration to the extent Clark sets forth his findings
related to his review of CBI's business records to locate
other instances when CBI sued individuals sharing the same
last name together in one collection action.
The
motion to amend complaint seeks to add two plaintiffs, Kevin
McGee and John Hennefer, whom Roskelley contends were subject
to the same debt collection practices as he
was.[3]
Roskelley asserts that CBI sued Mr. McGee and Mr. Hennefer
for recovery of debts they did not individually incur. In the
case of Mr. McGee, his wife incurred two medical debts which
she did not pay. On August 6, 2018, CBI filed a complaint
against Mr. and Mrs. McGee seeking recovery of the debts that
Mrs. McGee incurred. The McGees settled the matter, and the
case was dismissed without prejudice. Proposed First Am.
Compl. ¶ 46. (Dkt. 27-2 at 7.)
Turning
to Mr. Hennefer, the proposed amended complaint states that,
during the pendency of the couple's divorce proceedings,
Ms. Hennefer incurred three medical debts. The Hennefer's
divorce was finalized on July 6, 2018, and thereafter, CBI
sued Mr. and Mrs. Hennefer in one action to recover the
debts. Mr. Hennefer was served at his residence on November
1, 2018, while Mrs. Hennefer was served at her separate
residence on November 29, 2018. CBI obtained a default
judgment against both of the Hennefers on January 7, 2019.
Roskelley
argues Mr. McGee and Mr. Hennefer fall within the proposed
class, because neither “appeared in the records
provided to CBI by the creditor for each alleged debt as the
person responsible for the alleged debt.” He contends
it was improper to sue Mr. McGee and Mr. Hennefer together in
the same action as their wife for their wife's consumer
debts.
In
opposition to the motion to amend, CBI submitted the second
declaration of Mark Clark, which attaches copies of the
complaints CBI filed in the state district court in Ada
County against the McGees and the Hennefers. Clark, the
president and custodian of records of CBI, states that the
complaint filed against the McGees sought collection of two
debts - one owed by Mr. McGee, and the other owed by Mrs.
McGee. Similarly, CBI's complaint against the Hennefers
sought recovery of three separate debts - two owed by Mrs.
Hennefer, and one owed by Mr. Hennefer. The complaints filed
in state court sued the respective defendants
“individually, and as husband and wife,
”[4] in the same manner CBI sued Keith and
Amanda Roskelley.
CBI
argues Mr. McGee and Mr. Hennefer were properly sued together
with their spouse, because the debts were incurred while the
couples were married. CBI contends Mr. McGee and Mr. Hennefer
were properly named as defendants together with their spouse
to the extent CBI sought to satisfy the debts from community
property. Roskelley, on the other hand, argues that a
creditor is not permitted to name, and sue, a non-debtor for
alleged debts incurred by his or her spouse, and that both
Mr. McGee and Mr. Hennefer therefore fall within the proposed
class.
After
careful examination, the Court understands Roskelley's
class action claim faults CBI for assuming individuals who
share the same last name are married and, based upon that
assumption, proceeding to name the two individuals as
defendants in the same lawsuit even if only one of the
individuals incurred the debt. See Pl. Response to
Mot. Strike at 7, 14. (Dkt. 30 at 7, 20.) CBI argues it does
so because it seeks to satisfy debts owed by one or the other
spouse from community property.
Keith
Roskelley and his daughter represent one proposed subset in
this group, as they are related (father and daughter) and
share the same last name. CBI assumed they were married, and
sued them both in the same action, individually and as
husband and wife, to recover two debts owed by Keith, and two
debts owed by Amanda. Two other (and potentially more)
subsets exist in this proposed class - married couples who
incurred individual debts, like Mr. and Mrs. McGee; and
divorced spouses who incurred individual debts prior to the
entry of the divorce decree, like Mr. and Ms. Hennefer, but
who were sued together, both individually and as husband and
wife, after their divorce was final. In each case, CBI
assumed the individual debtors were married, and joined them
in the same lawsuit. With ...