United States District Court, D. Oregon
M. Baxter BAXTER & BAXTER LLP, Keith D. Karnes KARNES LAW
OFFICES, PC Attorneys for Plaintiff
B. Williams Alison R. Barber HITT HILLER MONFILS WILLIAMS LLP
Attorneys for Defendants Abraham Barnett and The Barnett
Nicholas E. Wheeler Brandon L. Thornburg COSGRAVE VERGEER
KESTER LLP Attorneys for Christene D. Cencer
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
John MacVicar, Jr., and Mary Schmitt bring this action
against Defendants Abraham J. Barnett, The Barnett Firm, and
Christene Cencer. Plaintiffs bring state tort claims along
with federal claims under the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692, and 42
U.S.C. § 1983. Defendants now move to dismiss this
action for lack of subject matter jurisdiction and for
failure to state a claim. The Court grants in part and denies in
part Defendants' motions.
Inc., dba Freeborn Motors, operates a used car lot in
Lafayette, Oregon. First Amended Compl. (“FAC”)
¶ 10. During the events that underlie this action,
Defendant Barnett and The Barnett Firm (“Barnett
Firm”) represented BOHICA and, in this capacity,
collected debts for BOHICA by suing customers in default,
garnishing their wages, and engaging in other collection
efforts. FAC ¶ 11. Defendant Cencer collected debts as
an attorney employed by Defendant Barnett Firm. FAC
¶¶ 4, 12.
September 2011, Plaintiff MacVicar purchased a vehicle from
BOHICA. Def. BOHICA Req. Judicial Notice (“Def.
RJN”) Ex. 1 at 4, ECF 21; FAC ¶ 13. Around May 14,
2014, Defendant Barnett and Barnett Firm, on behalf of
BOHICA, filed a suit against Plaintiff MacVicar alleging that
he had defaulted on his payments to BOHICA. FAC ¶ 13;
Def. RJN Ex. 1. Three months later, Defendants obtained a
default judgment against Plaintiff MacVicar. FAC ¶ 14.
Two months after that, Defendants filed a motion in the
underlying debt-collection action alleging that they had
served interrogatories on Plaintiff MacVicar and that he
failed to respond. FAC ¶ 15; Def. RJN Exs. 3-4. The next
day, the Yamhill County Circuit Court entered an order to
show cause why Plaintiff MacVicar should not be held in
contempt for his failure to respond to the interrogatories.
FAC ¶ 16. This order generated a new case in Yamhill
County for remedial contempt against Plaintiff MacVicar.
February of 2015, Plaintiff MacVicar appeared for a hearing
in the contempt matter in the Yahmill County Circuit Court
and met with Ben Veralrud, an attorney employed by Defendant
Barnett Firm. FAC ¶¶ 5, 17; Def. RJN Ex. 6
(transcript of proceedings). Allegedly, after speaking with
Plaintiff MacVicar, Mr. Veralrud realized that Plaintiff
MacVicar did not have the ability to pay the judgment. FAC
¶ 19. Accordingly, Mr. Veralrud presented
Plaintiff Mac Vicar with: (1) a document whereby Plaintiff
Mac Vicar would pay BOHICA $60 per month towards the debt and
(2) a stipulated judgment of contempt and money award holding
Plaintiff Mac Vicar in contempt should he fail to make
payments as required under the new agreement. Id;
Def RJN Ex. 6 at 9:22-10:9, Ex. 7. These agreements
were entered into the record in the contempt case. FAC ¶
20; Def. RJN Ex. 7. Plaintiffs allege, however, that these
documents are null and void because they would require
Plaintiff Mac Vicar to pay $60 per month from his own labor
or face being jailed, placing Plaintiff Mac Vicar “in
an illegal state of peonage in violation of 42 U.S.C. §
1994.” FAC ¶¶ 21, 22.
Yamhill County Circuit Court set a hearing for December 5,
2016, to review the status of Plaintiff Mac Vicar's
agreement to pay $60 per month. FAC ¶¶ 23, 24. That
day, Defendant Cencer moved to continue the hearing because
Plaintiff Mac Vicar had been making ongoing payments. FAC
¶ 25; Def. RJN Ex. 10. She allegedly also told the court
that Plaintiff Mac Vicar had not been served with the motion
to continue because he was in default, even though
“there were no default findings in the contempt
matter.” FAC ¶¶ 25, 26; Def. RJN Ex. 11 at 3.
The hearing was reset to December 28, 2017, but Plaintiff Mac
Vicar was not served with the order resetting the hearing.
FAC ¶ 27; Def. RJN Ex. 11 at 1-2. As a result, Plaintiff
Mac Vicar did not appear at the hearing on December 28. FAC
hearing, Defendant Cencer asked the court to enter the
stipulated judgment of contempt and issue an order for a
bench warrant for Plaintiff Mac Vicar's arrest. FAC
¶ 29; Def. RJN Ex. 12 at 3:19-22. In seeking the
judgment and warrant, Defendant Cencer allegedly informed the
court that Plaintiff Mac Vicar had been served notice of the
order requiring his appearance at the December 28, 2017
hearing and that Plaintiff Mac Vicar was not making the
agreed-upon payments to BOHICA. FAC ¶ 30; Def. RJN Ex.
12 at 3:10-19. Accordingly, the court issued the bench
warrant and signed the stipulated judgment. FAC ¶ 30;
Def. RJN Exs. 13- 14. The stipulated judgment found Plaintiff
MacVicar in contempt of court for willfully failing to
respond to the interrogatories in the underlying debt
collection matter. Def. RJN Ex. 13. It further provided that
a Plaintiff MacVicar:
[S]hall be confined for the shorter of so long as the
contempt continues or six months, that bail shall be set at
$9, 804.47, that the warrant shall direct any funds posted as
bail to be disbursed to [Defendants or BOHICA], that [BOHICA]
have judgment against [Plaintiff MacVicar] for attorney fees
in the amount of $1, 281.25 and costs in the amount of
$150.00, and that an execution shall issue for these amounts.
Def. RJN Ex. 13. Plaintiffs allege that no one informed
Plaintiff MacVicar “of his right to counsel as required
prior to the arrest warrant being issued.” FAC ¶
29. Plaintiffs also allege that both of Defendant
Cencer's statements to the court were false. FAC ¶
January 19, 2018, Plaintiff MacVicar was arrested and spent
two days in Washington County Jail. FAC ¶¶ 33, 34.
He was held on $9, 804.47 bail, roughly the outstanding
judgment owed to BOHICA. FAC ¶ 35. To raise bail,
Plaintiff MacVicar called his mother-Plaintiff Mary
Schmitt-who used her savings to pay the bail in full. FAC
MacVicar was released from jail and contacted Defendant
Barnett Firm to determine what steps he needed to take to
settle his debt. FAC ¶¶ 38, 39. Allegedly,
Defendant Barnett Firm and Plaintiff MacVicar agreed that a
payment of $4, 500 would satisfy the debt owed to BOHICA in
full. FAC ¶ 40. Around January 24, 2018, Plaintiff
MacVicar paid Defendant Barnett Firm $4, 500 and received a
satisfaction of judgment signed by Defendant Cencer. FAC
¶ 41; Pls. Req. Judicial Notice (“Pls. RJN”)
January 30, 2018, Defendant Barnett filed a motion to vacate
the satisfaction claiming the “satisfaction signed by
[Defendant] Cencer was ‘inadvertent.'” FAC
¶ 41; Pls. RJN Exs. 2-3. Defendant Barnett's motion
was granted ex parte. FAC ¶ 43; Pls. RJN Ex. 4. A week
later, Defendant Barnett filed an ex parte motion for
disbursement of the entire bail money despite also having
possession of the $4, 500 paid by Plaintiff MacVicar the
previous month. FAC ¶ 44; Def. RJN Ex. 15. This, too,
was granted without notice or a hearing to Plaintiff
MacVicar. FAC ¶ 45; Pls. RJN Ex. 7. Plaintiffs allege
that Defendants retained possession of both the bail money
and the $4, 500. FAC ¶ 46.
Schmitt called Defendant Barnett and complained about the
duplicative payments. FAC ¶ 47. Defendant Barnett
“indicated that if [Plaintiff] Schmitt continued to
complain he would bill against the $4, 500 for his time in
dealing with her and stated [Plaintiff] MacVicar should still
be in jail.” Id.
filed this action on July 23, 2018. Compl., ECF 1. They filed
a First Amended Complaint on October 5, 2018. FAC, ECF 16.
Plaintiffs allege that Defendants have violated various
sections of the FDCPA. FAC ¶¶ 51-52. Plaintiffs
also allege that by procuring a contempt order, obtaining an
arrest warrant, and collecting bail money (among other
things), Defendants have acted under color of state law and
violated Plaintiff MacVicar's Fourth, Fifth, Sixth,
Thirteenth, and Fourteenth Amendment rights as well as his
right to be free from peonage. FAC ¶¶ 53-57.
Plaintiffs also bring claims for false imprisonment, abuse of
a vulnerable person under Or. Rev. Stat. §
(“ORS”) 124.100 et seq., and intentional
infliction of emotional distress. FAC ¶¶ 58-66.
Plaintiff MacVicar alleges that as a result of
Defendants' conduct, he “has suffered the loss of
his money, confinement in jail, upset, worry, frustration,
and other negative emotions.” FAC ¶ 49. Plaintiff
Schmitt has also “suffered lost [sic] use of her money,
upset, worry, frustration, and other negative motions.”
FAC ¶ 50.
Subject Matter Jurisdiction
motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(1) addresses the court's subject matter
jurisdiction. The party asserting jurisdiction bears the
burden of proving that the court has subject matter
jurisdiction over his claims. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994).
12(b)(1) motion may attack the substance of the
complaint's jurisdictional allegations even though the
allegations are formally sufficient. See Corrie v.
Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007)
(court treats motion attacking substance of complaint's
jurisdictional allegations as a Rule 12(b)(1) motion);
Dreier v. United States, 106 F.3d 844, 847 (9th Cir.
1996) ("[U]nlike a Rule 12(b)(6) motion, a Rule 12(b)(1)
motion can attack the substance of a complaint's
jurisdictional allegations despite their formal
sufficiency[.]") (internal quotation omitted). Thus, the
court may consider evidence outside the pleadings to resolve
factual disputes. Robinson v. United States, 586
F.3d 683, 685 (9th Cir. 2009); see also Dreier, 106
F.3d at 847 (a challenge to the court's subject matter
jurisdiction under Rule 12(b)(1) may rely on affidavits or
any other evidence properly before the court).
Failure to State a Claim
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the claims. Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). “All
allegations of material fact are taken as true and construed
in the light most favorable to the nonmoving party.”
Am. Family Ass'n, Inc. v. City & Cnty. of
S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). To survive a
motion to dismiss, a complaint “must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face[, ]” meaning “the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal ...