United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE
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.
Background and Factual Allegations
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
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.
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.
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.
Motions to Dismiss for Lack of Jurisdiction
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).
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).
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. (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
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.
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.
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 ...