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Rimmer v. John Doe, Inc.

United States District Court, Eighth Circuit

August 30, 2013

Phillip A. Rimmer, Plaintiff,
v.
John Doe, Inc., Huddleston Law Office, PLLC d/b/a Huddleston Law, PLLC, a Kentucky Limited Liability Company, Russel French, an individual, Lee Huddleston, Esq., an individual, and John Doe 1, an individual, Defendants.

REPORT AND RECOMMENDATION

JEANNE J. GRAHAM, Magistrate Judge.

This matter is before the Court on Defendant Lee Huddleston, Esq.'s Motion to Dismiss (ECF No. 5). Plaintiff is represented by Jeremy Cobb. Defendant Lee Huddleston, Esq. ("Huddleston") is the only Defendant to have appeared or responded to the Complaint. While Huddleston is an attorney, he is not admitted to practice before this Court, thus he is proceeding pro se. Huddleston failed to abide by numerous provisions contained in the Local Rules. He did not contact the undersigned to obtain a hearing date, and he failed to file a notice of motion, any affidavits or exhibits, and a meet-and-confer statement as required by Local Rule 7.1(c)(1)(A). Likewise, Huddleston failed to file a reply memorandum or a notice that no reply memorandum was forthcoming, as required by Local Rule 7.1(c)(3)(A). Despite those omissions, the Court will rule on the motion as submitted, however in the future, counsel must abide by the Local Rules of this Court.

The Complaint in this matter is for violation of various provisions of the Fair Debt Collection Practices Act ("FDCPA"). Huddleston moves to dismiss pursuant to Rules 12(b)(2), 12(b)(3), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. As set forth below, the motion should be denied as it relates to insufficient service of process and failure to state a claim, but it should be granted as to lack of personal jurisdiction. The Court need not decide whether venue is proper. Accordingly, the Court recommends the motion be granted and the case be dismissed.

I. FACTUAL BACKGROUND

Plaintiff Phillip A. Rimmer incurred a debt owed to Plains Commerce Bank in the amount of approximately $776.00. (Compl. ¶ 12.) Plaintiff alleges that the debt was assigned to "Defendant."[1] ( Id. ¶ 13.) Plaintiff filed for bankruptcy protection on January 24, 2012, in the United States Bankruptcy Court for the District of Minnesota. ( Id. ¶ 14.) Plaintiff listed Plains Commerce Bank as the debtor on his bankruptcy petition. ( Id. ¶ 16.)

Plaintiff received a dunning letter by email on March 8, 2012. ( Id. ¶ 15.) Plaintiff asserts that Defendants had constructive notice of his bankruptcy petition because the debt was assigned after the bankruptcy petition was filed. ( Id. ¶ 16.) The March 8 letter did not contain a validation notice. ( Id. ¶ 17.) Moreover, the email referred to a "case filed in in our office against you." ( Id. ¶ 20.) The email also stated: "If we do not hear from you we will proceede [sic] with with [sic] legal action. This case is on hold for 5 business days." ( Id. ¶ 21.) The email was signed "Lee Huddleston, Attorney at Law." ( Id. ¶ 22.)

Later on March 8, 2012, Plaintiff called the number listed on the email and advised "Defendant John Doe 1-a collections representative" of his bankruptcy. ( Id. ¶ 24.) Defendant John Doe 1 "did not provide a mini Miranda" ( Id. ¶ 25.) Plaintiff allegedly alerted Defendant Doe to the automatic stay provisions, to which Defendant Doe replied, "Go ahead, sue us; we will counter sue." ( Id. )

II. OTHER DEFENDANTS

Before proceeding to the arguments asserted by Huddleston, the Court is obliged to note that while Huddleston is apparently an attorney, to the extent he purports to submit this motion on behalf of all Defendants, it is not so effective. First, Huddleston is not licensed to practice before this Court. Accordingly, in this Court's view, he is a non-attorney. Moreover, "a non-attorney [] may not engage in the practice of law on behalf of others." Jones ex rel. Jones v. Corr. Med. Servs., Inc., 401 F.3d 950, 952 (8th Cir. 2005) (citations omitted). Section 1654 of United States Code Title 28 prohibits "corporations, partnerships, or associations [from] appear[ing] in federal court otherwise than through a licensed attorney." Rowland v. Cal. Men's Colony, Unit II Men's Advis. Council, 506 U.S. 194, 202-03 (1993) (citing 28 U.S.C. § 1654) (collecting cases). Quite simply, Huddleston's attempt to act on behalf of others without making an appearance on their behalf is ineffective.[2]

III. INSUFFICIENT SERVICE OF PROCESS

A. Standard of Review

A motion pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure requires a defendant to demonstrate that the plaintiff failed to follow the procedures set forth in Rule 4. The Eighth Circuit has held that "[i]f a defendant is improperly served, a federal court lacks jurisdiction over the defendant." Printed Media Servs., Inc., v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993) (citing Dodco, Inc. v. Am. Bonding co., 7 F.3d 1387, 1388 (8th Cir. 1993)). In reviewing a motion to dismiss for insufficient service, the Court is required to consider matters outside the pleadings, including affidavits of service. Devin v. Schwan's Home Servs., Inc., Civ. No. 04-4555 (RHK/AJB), 2005 WL 1323919, at *2 (D. Minn. May 20, 2005) (citing Wright & Miller, Federal Practice and Procedure: Civil 3d § 1353 (2004)). Such consideration does not require the Court to convert the motion into a Rule 56 motion for summary judgment. Id.

Service is governed by Rule 4 of the Federal Rules of Civil Procedure. Service of an individual may be achieved by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed.R.Civ.P. 4(e)(1). Alternatively, a plaintiff may: (1) deliver "a copy of the summons and complaint to the individual personally"; (2) leave "a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there"; or (3) deliver "a copy of each to an agent authorized by appointment or by law to receive service of process." Fed.R.Civ.P. ...


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