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Kirby v. Tulsa Community College

United States District Court, N.D. Oklahoma

February 26, 2019

ELBERT KIRBY and KAY KIRBY, Plaintiffs,
v.
TULSA COMMUNITY COLLEGE, BOARD OF REGENTS TCC AKA, PAUL CORNELL, ROBIN BALLENGER, MARTIN GARBER, SAMUEL COMBS, CARON LAWHORN, RONALD LOONEY, BILL MCKAMEY, BRYAN ALLEN PLANK, and PLANK LAW FIRM, Defendant.

          OPINION AND ORDER

          TERENCE C. KERN UNITED STATES DISTRICT JUDGE

         Before the Court are the Motions to Dismiss for Failure to State a Claim and for Lack of Jurisdiction of Defendants Bryan Allen Plank and Plank Law Firm (“Plank Defendants”) (Doc. 44) and Defendants Robin Ballenger, Board of Regents TCC, Samuel Combs, Paul Cornell, Martin Garber, Caron Lawhorn, Ronald Looney, Bill McKamey, and Tulsa Community College (“TCC Defendants”) (Doc. 45). For reasons discussed below, Defendants' Motions are DENIED as to Lack of Jurisdiction, but are GRANTED as to Failure to State a Claim.

         I. Background and Factual Allegations

         Plaintiffs Elbert and Kay Kirby filed this action on April 25, 2017. They filed a First Amended Complaint on December 5, 2017 (Doc. 27) and a Second Amended Complaint (“SAC”) on January 9, 2018 (Doc. 30) (styled as “Third Petition for Redress of Injuries”). Plank Defendants and TCC Defendants filed Motions to Dismiss for Lack of Jurisdiction and Failure to State a Claim on June 13, 2018. (Doc. 44 and 45). Plaintiffs have not responded to these motions to dismiss.

         Despite Plaintiffs' filing two Amended Complaints, the SAC contains few, if any, factual allegations. It appears from the SAC that Plaintiffs allege that Defendants were debt collectors who were engaged in collection activity against Plaintiffs. Plaintiffs allege that they did not owe the debt, but that Defendants made false and misleading representations that they did. Further, Plaintiffs allege that they made repeated, timely requests for Defendants to validate the alleged debt, but that Defendants failed or refused to do so and that Defendants attempted to collect excessive amounts, fees, charges, and expenses from Plaintiffs in a way that was not expressly authorized by “the agreement.” Plaintiffs also allege that Defendants made other false and misleading representations of the alleged debt, including the status of the alleged debt, repeatedly ignored available proof that the alleged debt was “not prosecuted in the name of the real party in interest, ” communicated personal credit information to Plaintiffs which Defendants knew or should have known to be false, and failed to communicate that the alleged debt was disputed. Plaintiffs further allege that TCC Defendants communicated with them regarding the alleged debt by mailed post card.

         Finally, Plaintiffs allege that Defendants did not advise them of their due process rights. They allege that Defendants attempted to take and put a lien on Plaintiffs' property and assets, and that they engaged in taking property via sham judicial proceedings. They also allege that Defendants did not attempt to properly notify Plaintiffs of a pending action, and attempted to use subversive, deceptive, and misleading means to obtain service of process.

         Plaintiffs are pro se litigants; accordingly, the Court will liberally construe their allegations with regard to both motions to dismiss for lack of jurisdiction and failure to state a claim. See United States v. 7501 N.W. 210th St., 437 Fed.Appx. 754, 758 (10th Cir. 2011) (unpublished) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Accordingly, if the Court can reasonably read the pleadings to either demonstrate standing or state a valid claim on which the Plaintiffs would prevail, it should do so “despite the plaintiff[s] failure to cite proper legal authorities, [their] confusion of various legal theories, [their] poor syntax and sentence structure, or [their] unfamiliarity with pleading requirements.” Id. However, the Court may not assume the role of advocate for pro se litigants. See id.

         II. Motions to Dismiss for Lack of Jurisdiction

         All Defendants have filed Motions to Dismiss for Lack of Jurisdiction for lack of constitutional standing, as Plaintiffs have failed to demonstrate injury in fact (Doc. 44) and traceability (Doc. 45). Because Article III of the Constitution extends the federal courts' judicial power only to “Cases” or “Controversies, ” Plaintiffs must demonstrate that their case fits within the limits of Article III before the Court may review the merits of the case. See U.S. Const. Art. III, § 2. The analysis to determine whether a dispute is a “Case” or “Controversy” for the purposes of Article III is the “Constitutional standing” analysis. See Carolina Cas. Ins. Co. v. Pinnacol Assur., 425 F.3d 921, 926 (10th Cir. 2005) (internal citations omitted).

         Constitutional standing is present if Plaintiffs show that (1) they have suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the Defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Id. (citing Friends of the Earth Inc. v. Laidlaw Env. Services (TOC), Inc., 528 U.S. 167, 180-81 (2000)). While Plaintiffs bear the burden of showing that they have Constitutional standing, at the pleadings stage, general factual allegations of injury resulting from the defendant's conduct may suffice. Id. Further, the Court must accept all material allegations in the operative complaint, and must construe the complaint in favor of the complaining party. See United States v. Supreme Court, 839 F.3d 888, 899 (10th Cir. 2016). Alleged statutory violations in a complaint can suffice to establish injury in fact and confer Constitutional standing, but only if those violations demonstrate a concrete injury, rather than a “bare procedural violation” that results in no “concrete harm.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1549 (2016).

         In this case, Plaintiffs have sufficiently alleged general factual allegations of injury resulting from Defendants' conduct. Plaintiffs have alleged violations of various provisions of the Fair Debt Collection Practices Act (“FDCPA”), 18 U.S.C. § 1028 and Okla. Stat. tit. 21 sec. 1533.1. Plaintiffs also appear to allege, among other things, that Defendants' actions caused the actual or threatened loss of property or assets.[1] (Doc. 30, Causes of Action 4, 6, 7, 9, 10, 12, 19, 20, 21, 22, 24, 25 and 26.) Plaintiffs allegations of statutory violations, in combination with the specific loss or threatened loss of property or assets, are sufficient to establish injury in fact at this early stage of the litigation.

         Additionally, to establish injury in fact, the alleged injury must be “particularized, ” “concrete, ” and “actual or imminent.” See Spokeo, Inc., 136 S.Ct. at 1548. For an injury to be “particularized, ” it must “affect the plaintiff in a personal and individual way.” Id. at 1548. Similarly, to be “concrete, ” an injury must actually exist, though it may be tangible or intangible. Id. at 1548-49. Finally, to be “actual or imminent, ” the injury must not be hypothetical. See Carolina Cas. Ins. Co., 425 F.3d at 926. In this case, because Plaintiffs allege the actual or imminent loss of their own property and assets, the injury is particularized, concrete, and actual or imminent.

         Finally, Plaintiffs have made general allegations of Defendants' conduct sufficient to establish traceability for the purposes of constitutional standing. To establish traceability, Plaintiff must show “a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations omitted). In this case, Plaintiffs have alleged that Defendants were debt collectors, that they all engaged in debt collection activities against Plaintiffs, and that those activities caused many harms, including at least the actual or threatened loss of property and assets. Accordingly, for the purposes of standing at this early stage in the litigation, the Court finds that Plaintiffs have met their burden to allege general factual allegations of injury resulting from the defendant's conduct.

         TCC Defendants argue that Plaintiffs have failed to establish traceability because they have failed to allege “the office or position of the TCC Defendants, including their duties, responsibilities, or obligations.” However, TCC defendants fail to cite any authorities for the propositions that these specific allegations are necessary to establish traceability specifically, and fail to present any argument as to why, taking the allegations in the SAC as true, Plaintiffs' alleged injury may be the result of independent action by a third party, or who that third party might be. Absent this argument to consider, the Court finds that Plaintiffs have ...


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