A District Court judge in Wisconsin has granted a plaintiff’s motion to remand a Fair Debt Collection Practices Act case back to state court where it was originally filed and granted the plaintiff’s motion for attorney’s fees and costs because it was “objectively unreasonable” for the defendant to remove the case in the first place.
A copy of the ruling in the case of Clark v. Client Services can be accessed by clicking here.
The plaintiff filed this case in Wisconsin state court after the defendant allegedly attempted to contact the plaintiff directly, despite allegedly being sent a notice from the plaintiff’s attorney a month earlier that requested the defendant cease all collection activities and to direct all future communications to the attorney. The plaintiff accused the defendant of violating Section 1692c(c) of the FDCPA.
The defendant removed the case to federal court, arguing that the plaintiff’s decision to seek “actual” damages, along with statutory damages, constituted an admission that the plaintiff had suffered a concrete injury.
As most of you remember from the sixth word of this article, this case is from Wisconsin, which is home to the Court of Appeals for the Seventh Circuit. The Seventh Circuit has led the way for the rest of the nation in establishing a significantly higher bar for plaintiffs to surpass if they want to prove to have suffered a concrete injury in order to pursue an FDCPA case in federal court. And it is those cases that Judge Pamela Pepper of the District Court for the Eastern District of Wisconsin cites in granting the motion to remand the case back to state court.
The defendant’s argument that the request for actual damages is the same as the plaintiff suffering an actual injury were not enough to convince Judge Pepper that the plaintiff had standing.
“The defendant reasons that actual damages imply an actual injury, which would allow one to infer that the actual injury was a concrete injury,” Judge Pepper wrote. “The defendant has not cited — and this court has not found — any case law holding that a prayer for relief allows the court to infer an unpled, concrete injury. The complaint alleges a violation of the FDCPA and a passing reference by Attorney Moore that the defendant should cease communication because the plaintiff needs to avoid stress. These allegations don’t confer standing. As the Seventh Circuit has succinctly stated, ‘[t]here is no FDCPA exception to Article III.’ “
At the time this lawsuit was filed, the Seventh Circuit had already issued a number of opinions on standing, and there was no reason why the defendant would believe the “need to avoid stress” would confer standing, Judge Pepper ruled. “Speculating that there might be a concrete injury beyond the need to avoid stress, based solely on the plaintiff’s use of the phrase ‘“’actual damages,’”’ is inconsistent with the Seventh Circuit’s instruction to focus on the allegations in the complaint,” she wrote.