United States District Court, M.D. Alabama, Eastern Division
ALLIE J. STEWART, Plaintiff,
BUREAUS INVESTMENT GROUP, LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE
Before the court is a motion to dismiss filed by Defendants Mark Chambless and Chambless, Math & Carr, P.C., which has been fully briefed. (Docs. # 191, 204, 216.) Upon consideration of the motion, the court concludes that it is due to be granted in part and denied in part.
I. JURISIDICTION AND VENUE
Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331 and 1367 and 15 U.S.C. § 1692k(d). Personal jurisdiction and venue are uncontested
II. STANDARD OF REVIEW
A defendant may raise a statute of limitations defense in a Rule 12(b)(6) motion when the complaint shows on its face that the limitations period has run. Avco Corp. v. Precision Air Parts, Inc., 676 F.2d 494, 495 (11th Cir. 1982).
Otherwise, when evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
Plaintiff Allie Stewart was sued in Macon County Circuit Court on a debt on May 22, 2008. The plaintiff in the collection suit identified itself as “Bureaus Investment Group #1, LLC.” (Third Amended Compl. at ¶ 53.) Defendant Mark Chambless is an Alabama attorney and a member of Defendant Chambless Math & Carr, P.C. (hereinafter “the firm”). Mr. Chambless filed the debt collection suit against Ms. Stewart and continued to represent Bureaus Investment Group #1, LLC, in that action.
A proposed consent judgment was entered against Ms. Stewart on November 19, 2008, and she began making payments to Mr. Chambless’s firm, but Ms. Stewart later learned that Bureaus Investment Group #1, LLC, was not licensed or registered in Alabama. She thus requested that the consent judgment be vacated so that she could defend the suit. The Macon County Circuit Court granted Ms. Stewart’s Rule 60(b) motion and vacated the consent judgment in February 2010, over the plaintiff’s objection. Ms. Stewart made eight payments to Mr. Chambless’s firm before the judgment was vacated. Mr. Chambless continued to represent his client through June 22, 2010, when he moved to voluntarily dismiss the suit against Ms. Stewart.
The true legal name of the owner of Ms. Stewart’s debt is Bureaus Investment Group Portfolio No. 1, LLC. Bureaus Investment Group Portfolio No. 1, LLC, and other similarly named entities (e.g., No. 2, No. 3, etc., hereinafter the “Portfolio Defendants”) are Illinois limited liability companies whose sole member is Bureaus Investment Group, LLC. Bureaus Investment Group, LLC, is also an Illinois limited liability company. The Portfolio Defendants have no employees and are allegedly run by a corporation with employees, The Bureaus, Inc. The Bureaus, Inc., is or was owned and operated by three individuals named as Defendants in this action: Michael Slotky, Burton Slotky, and Aristotle Sangalang. The court refers collectively to the Portfolio Defendants, Bureaus Investment Group, LLC, and The Bureaus, Inc., as “the Bureaus entities.” Ms. Stewart complains that the Bureaus entities violated the Fair Debt Collection Practices Act (“FDCPA”) and state law by bringing collection suits in Alabama’s state courts while fraudulently misrepresenting both their legal status as corporations and their license to do business in Alabama. She sues on her own behalf and on behalf of others consumers similarly situated.
Ms. Stewart alleges that Mr. Chambless and his firm are liable along with the Bureaus entities. Mr. Chambless allegedly filed and maintained between 150 and 200 collection lawsuits, including the suit against her, in Alabama’s state courts on behalf of the Bureaus entitites. Ms. Stewart claims that in every instance, Mr. Chambless used “false names and false corporate designations” and falsely represented that the businesses were “corporation[s] licensed to do business in the State of Alabama.” (Third Am. Compl. at ¶ 12.)
B. Procedural History
This case originated as a counterclaim to the debt collection suit in Macon County filed by “Bureaus Investment Group #1, LLC.” Ms. Stewart filed her counterclaim on March 9, 2010. (Doc. # 1-3.) Once the original action against her was dismissed and the parties were realigned, Bureaus Investment Group #1, LLC, a nonexistent entity later correctly identified as Bureaus Investment Group Portfolio No. 1, LLC, removed this case to federal court in December 2010. (Doc. # 1.) In response to several motions to dismiss, Ms. Stewart has amended her complaint three times, and only in the most recent iteration, filed July 30, 2014, has she implicated Mr. Chambless and his firm. Ms. Stewart first mentioned Mr. Chambless and his firm as prospective defendants in her motion for leave to file a third amended complaint, filed March 14, 2014. (See Doc. # 142.) Ms. Stewart has represented that “[p]rior to the deposition of [Mr.] Sangalang [in February 2014], [she] was not aware” that the decision to plead that the non-existent Bureaus entities were “corporation[s] licensed to do business in Alabama” allegedly was made by Mr. Chambless rather than by the Bureaus Defendants. (Doc. # 147, at 8–9.) She also learned at that time that Mr. Chambless was responsible for preparing the “authorization and verification forms” verifying that debts were owned by non-existent Bureaus entities. (Doc. # 147, at 9.)
On June 2, 2014, Ms. Stewart’s motion for leave to amend the complaint was granted in part to allow the joinder of Mr. Chambless and the firm. (See Doc. # 157.) In the Third Amended Complaint, Ms. Stewart sues Mr. Chambless and the firm for violating the FDCPA (Count I), for wanton and/or intentional conduct (Count III), for money had and received (Count IV), and for negligent, reckless, and/or wanton training, monitoring, and/or supervision (Count V – against the firm only). So far, Ms. Stewart and the Bureaus entities have engaged in very little discovery, and despite being in this court for four-and-half years, this case has made little progress beyond the pleading and motion-to-dismiss stage.
Mr. Chambless and his firm contend that Ms. Stewart’s claims against them (Counts I, III, IV, and V) are time-barred, fail to state claims upon which relief can be granted, or both. Their arguments are discussed count by count.
A. FDCPA Claim (Count I)
1. FDCPA: The Statute of Limitations and Discovery Rule
Ms. Stewart alleges that Defendants’ offensive conduct in state court violated multiple provisions of the FDCPA. The FDCPA requires that actions be brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). The statute of limitations begins to run on the date the debt collector last ...